CROWD TERMS OF SERVICE

Last Updated: 12/11/2023

These Terms of Service ("Terms") are a legally binding agreement between you and Miami Labs, Inc. d/b/a OpenStore ("OpenStore"). These Terms govern your use of OpenStore's CROWD mobile application (the "App") and related services (the App and those services, collectively, the "Services"), including your purchase of products made available via the App (the "Products") from OpenStore. 

BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 18, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND OPENSTORE WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use the Services.

We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of the Services or Products ("Supplemental Terms"). Any Supplemental Terms become part of your agreement with us if you use the applicable Services or purchase the applicable Products, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict. 

We may make changes to these Terms. The "Last Updated" date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of the Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using the Services. 

1 Eligibility and Use Restrictions

Users under 18 years of age (or the age of legal majority where the user lives) may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to the Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using the Services without your consent, please contact us at legal@open.storelegal@open.store. You may only use the Services in jurisdictions authorized by OpenStore. 

2 Your Information 

You may provide certain information to OpenStore in connection with your access or use of the Services, or we may otherwise collect certain information about you when you access or use the Services. You agree to receive emails, SMS or text messages, and other types of communication from OpenStore via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to OpenStore in connection with the Services is accurate. 

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy. 

3 Accounts

You must create an account with OpenStore in order to use some or all of the Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

4 Content 

(a) The Services may allow you and other users to create, post, store, and share Product reviews and other content (collectively, "Content"). When you post or otherwise share Content on or through the Services, you understand that your Content and any associated information may be visible to others.

(b) Except for the license you grant below, as between you and OpenStore, you retain all rights in and to your Content. You grant OpenStore and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your Content and any name, username or likeness provided in connection with your Content in all media formats and channels now known or later developed without compensation to you or any third party. You hereby irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding your Content that you may have under any applicable law or under any legal theory. 

(c) You may not create, post, store, or share any Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your Content, and our use of such Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any Content that:

▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

▪ Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;

▪ May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;

▪ Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;

▪ Impersonates, or misrepresents your affiliation with, any person or entity;

▪ Contains any unsolicited promotions, political campaigning, advertising, or solicitations;

▪ Contains any private or personal information of a third party without such third party’s consent;

▪ Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or

▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying the Services, or may expose OpenStore or others to any harm or liability of any type.

(d) Enforcement of this Section 4 is solely at OpenStore’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted. 

(e) We do not undertake to review all Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any Content. Although we have no obligation to screen, edit, or monitor Content, we may:

▪ Delete or remove Content or refuse to post any Content at any time and for any reason with or without notice, including for any violations of applicable law or these Terms; 

▪ Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your Content is reasonably likely, in our sole determination, to violate applicable law or these Terms; 

▪ Take any action with respect to your Content that is necessary or appropriate, in OpenStore’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect OpenStore's rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and

▪ As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any Content on or through the Services. To learn more about parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting your minor’s access to certain content, visit https://www.fbi.gov/resources/parents.

5 Prohibited Conduct 

(a) You will not use the Services if you are not eligible to use the Services in accordance with Section 1 and will not use the Services other than for their intended purpose. Further, you will not: 

▪ Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;

▪ Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

▪ Use or attempt to use another user’s account or information without authorization from that user and OpenStore;

▪ Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

▪ Sell or resell the Services;

▪ Copy, reproduce, distribute, publicly perform, or publicly display all or portions of the Services, except as expressly permitted by us or our licensors; 

▪ Modify the Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Services; 

▪ Use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;

▪ Reverse engineer any aspect of the Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of the Services;

▪ Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from the Services except in accordance with instructions contained in our robot.txt file and only to compile for search results; provided, that OpenStore grants to the operators of public search engines permission to use spiders to copy materials from the App for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. OpenStore reserves the right to revoke such permission either generally or in specific cases, at any time and without notice; 

▪ Develop or use any applications or software that interact with the Services without our prior written consent;

▪ Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

▪ Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by the OpenStore; or

▪ Use the Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

(b) Enforcement of this Section 5 is solely at OpenStore’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. Please note that parental control protections (such as computer hardware, software, or filtering services) may be commercially available to assist you in limiting access to material that is harmful to people under 18 or the age of the legal majority. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on December 5, 2023).  

6 Product Listings

The Services may make available listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products ("Listings"). The availability through the Services of any Listing does not imply our endorsement of such Product or affiliation with the provider of such Product. We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. 

7 Terms of Sale

By purchasing a Product through the Services, you agree to the terms set forth in this Section 7.

(a) Eligibility. To complete your purchase, you must have a valid billing and shipping address within a country that can be selected as part of the checkout process in the App (the "Territory"). We make no promise that Products available in the App are appropriate or available for use in locations outside the Territory

(b) Restrictions. The Products are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.

(c) Prices. Prices shown in the App exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices in the App are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase in the App.

(d) Payment. If you wish to make a transaction, you may be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information, to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a transaction. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.

(e) Order Confirmation; Acceptance. You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.

(f) Shipping; Delivery. Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions set forth in these Terms or otherwise contained on the Services. You will pay all shipping and handling charges specified during the ordering process. All transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.

(g) Order Delays; Cancellation. We reserve the right to delay, refuse, or cancel any order prior to delivery. For example, if there are errors in the App or made in connection with your order or inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.

(h) Reservation of Rights. OpenStore reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any transaction; to alter the payment option for Products; and to refuse to provide any user with any Product.

8 Merchant Terms of Sale

Although OpenStore makes available and sells Products via the App, all Products are manufactured by third-party merchants ("Merchants"). When you purchase a Product from the App, you will be subject to the applicable Merchant's terms and conditions applicable to such Product, including any warranties and related disclaimers, policies governing refunds, returns, and exchanges, dispute resolution terms, and other related terms and conditions ("Merchant Terms of Sale"). OpenStore is not a party to any Merchant Terms of Sale and expressly disclaims all responsibility and liability in connection with all Merchant Terms of Sale and any disputes or other interactions you may have with a Merchant in connection with your purchase of Products.

9 Promotions

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, "Promotions") made available through the Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

10 Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by OpenStore or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Services for your own personal, noncommercial use and solely with respect to the App, install and use the App on a mobile device that you own or control. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. The App is licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.

11 Trademarks

The name "OpenStore" and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of OpenStore and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Products or Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us. 

12 Feedback

You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about OpenStore or the Services (collectively, "Feedback"). You understand that we may use Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop the Services or new products or services in OpenStore's sole discretion. OpenStore will exclusively own all improvements to, or new, OpenStore products, services, or Services based on any Feedback. You understand that OpenStore may treat Feedback as nonconfidential. 

13 Third-Party Content

(a) The Services rely on or interoperate with third-party products and services, including data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, "Third-Party Materials"). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of the Services. You acknowledge that (i) the use and availability of the Services is dependent on third-party product vendors and service providers and (ii) the Third-Party Materials may not operate reliably 100% of the time, which may impact the way that the Services operate.

(b) We may further provide information about or links to third-party services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, "Third-Party Content"). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. 

(c) We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through the Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.

14 Indemnification

To the fullest extent permitted by applicable law, you will indemnify and hold harmless OpenStore and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the "OpenStore Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs (each, an "Indemnifiable Claim") arising out of or related to (a) your access to or use of the Products or Services, (b) your Content or Feedback, (c) your violation of these Terms, or (d) your conduct in connection with the Services. Additionally, you will, at OpenStore's sole election, defend OpenStore from any Indemnifiable Claims. If OpenStore directs you to defend an Indemnifiable Claim, then (i) OpenStore has the right to approve the counsel you select to defend the Indemnifiable Claim and (ii) OpenStore may also have its own counsel participate in the defense and settlement of the Indemnifiable Claim at your expense. OpenStore may also exclusively retain control of the defense of an Indemnifiable Claim. You will not settle an Indemnifiable Claim without OpenStore's written consent. 

15 Disclaimers

Your use of the Services (including purchase of the Products) and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, the Services, the Products, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided "as is" and "as available" without warranties of any kind, either express or implied. OpenStore disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, OpenStore does not represent or warrant that the Services, the Products, or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to the Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While OpenStore attempts to make your use of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that the Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of OpenStore, other OpenStore Parties, and OpenStore’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns. 

16 Limitation of Liability

(a) To the fullest extent permitted by applicable law, OpenStore and the other OpenStore Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if OpenStore or the other OpenStore Parties have been advised of the possibility of such damages.

(b) The total liability of OpenStore and the other OpenStore Parties for any claim arising out of or relating to these Terms or the Services, regardless of the form of the action, is limited to the amount paid by you for the Products giving rise to the claim.

(c) The limitations set forth in this Section 16 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of OpenStore or the other OpenStore Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

17 Release

To the fullest extent permitted by applicable law, you release OpenStore and the other OpenStore Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties (including, without limitation, Merchants). If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

18 Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND OPENSTORE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND OPENSTORE FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND OPENSTORE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. OPENSTORE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. 

THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW IN SECTION 18(L) IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

(a) Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 18 (this "Agreement") apply to all Claims between you and OpenStore. A "Claim" is any dispute, claim, or controversy (excluding those exceptions listed below) between you and OpenStore, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms, the Products, or the Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.

(b) Informal Dispute Resolution Prior to Arbitration. If you have a Claim against OpenStore or if OpenStore has a Claim against you, you and OpenStore will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and OpenStore will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, ("Informal Resolution Period") from the day either party receives a written notice of a dispute from the other party (a "Claimant Notice") in accordance with this Agreement.

• You will send any Claimant Notice to OpenStore by certified mail addressed to 2916 N. Miami Ave., Suite 1100, Miami, Florida 33127 or by email to legal@open.store. OpenStore will send any Claimant Notice to you by certified mail or email using the contact information you have provided to OpenStore. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.

• The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. Neither you nor OpenStore can proceed to arbitration before the end of the Informal Resolution Period. If you or OpenStore file a Claim in court or proceed to arbitration without complying with the requirements in Section 18, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach. 

• The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.

(c) Disputes Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or OpenStore, including any disputes in which you or OpenStore seek injunctive or other equitable relief for the alleged unlawful use of your or OpenStore's intellectual property or other infringement of your or OpenStore's intellectual property rights ("IP Claims"), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 18(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

(d) Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation ("NAM"), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., ("FAA") and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the "Rules"), as modified by this Agreement.

• If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association ("AAA"), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a "Consumer," meaning that you only use the Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and OpenStore as modified by this Agreement. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and OpenStore as modified by this Agreement.

• This Agreement affects interstate commerce, and the enforceability of this Section 18 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or OpenStore to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).

(e) Arbitration Procedure and Location. You or OpenStore may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section 18(d)).

• Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to OpenStore by certified mail addressed to 2916 N. Miami Ave., Suite 1100, Miami, Florida 33127 or by email to legal@open.store. OpenStore will send any demand for arbitration to you by certified mail or email using the contact information you have provided to OpenStore.

• The arbitration will be conducted by a single arbitrator in the English language. You and OpenStore both agree that the arbitrator will be bound by this Agreement.

• For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Miami, Florida, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

• The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and OpenStore agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

• An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

(f) Arbitration Fees.  Each party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement.

(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.

(h) Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made. The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.

(i) One Year to Assert Claims. To the extent permitted by law, any Claim by you or OpenStore against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or OpenStore will no longer have the right to assert that Claim.

(j) Confidentiality. If you or OpenStore submits a Claim to arbitration, you and OpenStore agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and OpenStore agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.

(k) Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered "Coordinated Claims" and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in this Agreement. You or OpenStore may advise the other of your or OpenStore's belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.

• Coordinated Claims may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in Coordinated Claims from the time a compliant Claimant Notice has been received by a party until this Agreement permits such Coordinated Claim to be filed in arbitration or court.

• Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.

• After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 18(k).

• Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator's fee paid for by OpenStore. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

• Remaining Claims: If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section 18 apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 19.

• If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.

• If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.

• A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

(l) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted this Agreement by emailing legal@open.store. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.

(m) Rejection of Future Arbitration Changes. You may reject any change we make to this Section 18 (except address changes) sending us notice of your rejection within 30 days of the change via email at legal@open.store. Changes to this Section 18 may only be rejected as a whole, and you may not reject only certain changes to this Section 18. If you reject changes made to this Section 18, the most recent version of this Section 18 that you have not rejected will continue to apply.

(n) Severability. If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with this Agreement, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.

19 Governing Law

Any Claims will be governed by and construed and enforced in accordance with the laws of the State of New York, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 18, then the state and federal courts located in Miami-Dade County, Florida will have exclusive jurisdiction. You and OpenStore waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

20 Modifying and Terminating the Services

We reserve the right to modify the Services or to suspend or terminate providing all or part of the Services at any time; charge, modify, or waive any fees required to use the Services, or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of the Services, such as by sending an email or providing a notice through the Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by OpenStore in writing. You also have the right to stop using the Services at any time, and you may terminate these Terms by ceasing use of the Services. We are not responsible for any loss or harm related to your inability to access or use the Services.

21 Severability

If any portion of these Terms other than Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

22 Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country or (b) on any of the U.S. government lists of restricted end users. 

23 Miscellaneous

(a) OpenStore’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word "including" will be interpreted to mean "including without limitation." Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically. 

(b) If you have a question or complaint regarding the Services, please send an email to legal@open.store. You may also contact us by writing to 2916 N. Miami Ave., Suite 1005, Miami, Florida 33127 Attention: OpenStore Legal. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers 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 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210. 

24 Additional Terms Applicable to Mobile Devices 

The following terms apply if you install, access, or use the App on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”). 

(a) Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. OpenStore, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App set forth in the Apple iOS App Store Terms of Service (the "Usage Rules") are subject to any additional restrictions set forth in the Usage Rules as of the date you download the iOS App, and in the event of any conflict, the Usage Rules will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.

(b) Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules.

(c) Maintenance and Support. You and OpenStore acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.

(d) Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of OpenStore. However, OpenStore has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the iOS App.

(e) Product Claims. You and OpenStore acknowledge that as between Apple and OpenStore, OpenStore, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including (i) product liability claims, (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.

(f) Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party's intellectual property rights, OpenStore, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.

(g) Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:

OpenStore

2916 N. Miami Ave., Suite 1100

Miami, Florida 33127 

Attention: OpenStore Legal 

Email: legal@open.store

(h) Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services. 

(i) Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.

The following terms apply if you install, access, or use the App on any device that contains the Android mobile operating system (the "Android App") developed by Google, Inc. ("Google"):

(a) You acknowledge that these Terms are between you and us only, and not with Google. 

(b) Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.

(c) Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for the Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.

(d) Google is a third-party beneficiary to the Terms as they relate to the Android App.