Mitipi Terms and Conditions

Last Updated: August 18, 2023

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Mitipi Ltd. (together with our affiliates Mitipi GmbH with its HQ in Berlin/Germany and Mitipi Inc. with its HQ in Saratoga CA/ USA, “Mitipi”, “we”, “Owner” or “us”) provides platforms, solutions, communities and related products, services, applications, content and features with the common vision to make the world a safer place. Mitipi features them through websites, such as those for products, support, boutique, and local country pages (the “Mitipi Site(s)”), the applications on mobile phones connected to devices (such as the KEVIN® device, including iOS and Android applications (“Apps”)) and Mitipi-controlled social media pages (such as Facebook, Instagram, Twitter, TikTok, LinkedIn).
To make these Terms of Service (the “Terms”) easier to read, the Mitipi Products, Sites and Applications, along with interfaces and Mitipi-controlled social media pages are collectively called the “Mitipi Service”, “Service” or “the Mitipi Products and Services”. By registering as a member or a client or a user or by visiting, browsing, or using the Mitipi Services in any way, you (as a “user”) accept and agree to be bound by these Terms, which form a binding agreement between you and Mitipi.

PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND MITIPI WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Unless otherwise specified, the terms apply generally when using the Mitipi Services. Single or additional conditions of use or access may apply in specific scenarios and in such cases are additionally indicated within this document. By using the Mitipi Services, Users confirm to meet the following requirements:

• There are no restrictions for Users in terms of being Consumers or Business Users;

• Users aren’t 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;

• Users aren’t listed on any U.S. Government list of prohibited or restricted parties.

If you do not wish to be bound by these Terms, you may not access or use the Mitipi Services. Certain elements of the Mitipi Services may be subject to additional terms and conditions specified from time to time; your use of those elements of the Mitipi Services is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.

 

 

1. Mitipi Membership Terms and Conditions

Access to Mitipi Services. To use the Mitipi Service, Users may register or create a User account as a Member, as outlined below, providing all required data or information in a complete and truthful manner. Users may also use the Service without registering or creating a User account, however, this may cause limited availability of certain features or functions. Users are responsible for keeping their login credentials confidential and safe. For this reason, Users are also required to choose passwords that meet the highest standards of strength permitted by the Mitipi Services. By registering, Users agree to be fully responsible for all activities that occur under their username and password. Users are required to immediately and unambiguously inform the Owner via the contact details indicated in this document, if they think their personal information, including but not limited to User accounts, access credentials or personal data, have been violated, unduly disclosed or stolen.

Mitipi Membership. By purchasing or using a Mitipi Membership, you agree to the following terms and conditions. A “Member” is any individual, corporation or institution with a Mitipi subscription. A “Membership Holder” is any Member who activates and pays the monthly subscription fees for a Membership, including those that pay the monthly subscription fees with a prepaid, gift, or promotional activation code (“Activation Code”). A “Membership” is either a Mitipi All-Access Membership, Rental Membership, or App Membership, as defined below.

Mitipi Membership Types.
All-Access Membership. An “All-Access Membership” may be purchased or received in connection with a Mitipi-connected product, such as KEVIN® (a “Mitipi Product”), and provides a member with full access to Mitipi’s available content and features on one respective Mitipi Product from each Mitipi Product category (e.g., one All-Access Membership may be attached to one or more KEVIN® devices), plus access to all available content, and features on the Mitipi App for as long as the All-Access Membership remains active. All-Access Members will only have access to the features and content made available on respective Mitipi Products that they are using.
Rental Membership. A “Rental Membership” is included as part of the cost of the rental of a KEVIN® and provides members with access to Mitipi’s available content, and features on the KEVIN® products and services, including the Mitipi – KEVIN® App, for as long as the rental remains active.
App Membership. An “App Membership” provides the member with access to available content, and features on the Mitipi – KEVIN® App. An App Membership does not provide access to content, and features on KEVIN® devices.

Each of the Membership types is sold separately. As a Membership Holder, you may possess one or more Memberships. We may restrict the number of streams that can occur simultaneously under a single Membership or the maximum number of users and products per Membership. The Membership Holder is responsible for all activities under their Membership.

Billing Cycles and Auto-Reneval. Any Membership recurs on a monthly or annual basis, as applicable, until it is canceled in accordance with these terms. Billing occurs at the beginning of the Membership cycle and provides access for at least one year or more, as applicable. By purchasing a Membership, you acknowledge that your Membership has recurring payment features and accept responsibility for all recurring payment obligations before the cancellation of your Membership by you or Mitipi. To change or terminate your Membership, go to your Account Settings or write to support@mitipi.com.

Other Offers. Mitipi may offer additional promotions or discounts related to Memberships from time to time. Please read the details of those offers carefully, as any additional terms presented during the signup process will form part of these Membership Terms. Unless specified in writing, all discount offers that require payment are non-refundable (including but not limited to annual subscriptions). Any trial or other promotion must be used within the specified time frame of the trial or promotion. You may be required to have a valid payment method on file to initiate a trial; in this case, if you do not cancel before your trial period ends, your account will be converted to a paid Membership and charged per these Membership Terms.

Prepaid, Gift, and Promotional Activation Codes. You may be given the opportunity to prepay for a period of one or more months of your Membership, or your Membership may have been paid for with an Activation Code with a set prepaid period at the time of Membership activation. At the conclusion of a prepaid period, unless you cancel prior to renewal and to the extent permitted by applicable law, your Membership will automatically continue on a month-to-month basis at the then-existing non-promotional price for your Membership. A Member who activates a Membership with an Activation Code will be required to complete Account Registration (as provided below), provide all required information, including up-to-date billing information at the time of activation, and otherwise comply with the Mitipi Terms and Conditions. Failure to provide all required Account Registration information will prevent you from successfully activating your Membership or using your Activation Code. Activation Codes have no cash value, even if tied to a set prepaid Membership period. Activation Codes have no property value. Activation Codes cannot be purchased or sold, redeemed for cash or credit or any other monetary value or currency, or used to pay debts. Activation Codes may not be assigned, transferred, traded, or pledged to any third party by the recipient except as may be expressly authorized by Mitipi. Activation Codes cannot be transferred by operation of law, such as by inheritance, in bankruptcy, or in connection with a divorce. Activation Codes that are sold, transferred, or assigned may be rescinded, voided, or confiscated at Mitipi’s discretion. Activation Codes are available only to the designated recipient at the time of issuance of the Activation Code and only if the recipient completes Account Registration and otherwise consents to and complies with the Mitipi Terms of Service, including these Membership Terms. Mitipi will decide disputes as to the owner of the Activation Code in its sole and absolute discretion.

Account Registration. You can register by successfully completing a Mitipi Products and Services purchase, including with an Activation Code, or by creating an account on any Mitipi Site, any Mitipi App, or any Mitipi Product. All information you provide must be accurate, including your name, address, credit, debit, or charge card numbers, expiration dates, and any other payment information. You are responsible for keeping such information up-to-date and must provide changes promptly to your account page, which may be accessed on our website. Mitipi’s use of your information is governed by our Privacy Policy. YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD.

Any individual who creates an account on Mitipi platforms but does not purchase a Membership or Product shall comply with the Membership Terms as described above as the individual were a “Member”.

Cancellation of Membership. If you terminate your Membership, you may use your Membership until the end of the then-current period, and your Membership will not be renewed after that period expires. However, you will not be eligible for a prorated refund of any portion of the Membership fee paid for the then-current Membership period.

Suspension/Termination by Mitipi. Mitipi may immediately terminate or suspend your account and all or a portion of your Membership or your access to the Mitipi App without notice if:

• your payment is overdue (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend);
• you provide false or inaccurate information;
• you violate these Membership Terms, the Terms of Service or any other Mitipi rules or agreements then in effect;
• you engage in conduct that is a violation of any applicable law or tariff (including, without limitation, copyright and intellectual property laws); or
• if you engage in conduct that is threatening, abusive, or harassing to Mitipi employees, agents, or other Mitipi users, including, for example, making threats to physically harm or damage property.

If Mitipi determines, in its sole discretion, that your Membership is being accessed in a commercial setting or is for commercial use, Mitipi reserves the right either (i) to terminate or suspend your Membership at any time by writing to you at the email address associated with your Membership, or (ii) to convert your Membership to a commercial subscription currently available to a Customer (as defined therein) using a Mitipi Product subject to the Mitipi Commercial Partner Standard Terms & Conditions of Purchase. You understand and agree that conversion of a Membership to a commercial subscription may be subject to additional fees and requirements as provided to you by Mitipi.

If we terminate or suspend your Membership or access to the Mitipi App, your license to use any software or content provided in connection with the Membership is also terminated or suspended (as applicable). If your Membership or access to the Mitipi App is terminated, Mitipi has the right to immediately delete all data, files, and other information stored in or for your account without further notice. You must pay all charges up to and including the date of termination. Should you wish to resume your Membership after any suspension, a restoration of service fee may apply. This fee includes all past-due unpaid charges and other fees.

Payment.
Amount to be Charged. Membership Holders agree to pay the fee specified when they purchased their Membership (plus any applicable taxes and other charges). If the amount to be charged varies from the amount pre-authorized (other than due to the imposition of, or change in, applicable sales tax), Membership Holders have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction, unless applicable law requires Membership Holders to consent to the change in price expressly. Any agreement you have with your payment provider governs your use of your specified payment method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Your failure to terminate and/or continued use of your Membership (including continued use of your Membership following the expiration of an Activation Code) reaffirms that we are authorized to charge you for that Membership. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you.

Billing Authorization. You may be asked to provide a payment method (such as a credit, charge, or debit card number) that we accept, along with other payment information, to activate your Membership, including Memberships paid for with an Activation Code, along with other payment information. You represent and warrant that you have the legal right to use all payment method(s) you provide us. Your authorizations in this section also apply to our payment processors and other companies acting as billing agents for us. You hereby authorize us to charge your specified payment method on a monthly or annual basis, as applicable, in line with your Membership cycle, in advance, for your Membership(s) and/or to place a hold on your payment method for any unpaid charges for your Membership(s). You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt. You agree that these Membership Terms shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds for all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request, and at any time, the information you previously provided is no longer valid. You acknowledge and agree that neither Mitipi nor any Mitipi agent will have any liability whatsoever for any insufficient funds or other charges incurred by you due to attempts to charge and/or place holds on your specified payment method as contemplated by these Membership Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.

Third-Party Payment Processors. You agree to pay us, through our payment processors, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the payment method you provide when you set up your account. We reserve the right to correct or instruct our payment processors to correct any errors or mistakes, even if payment has already been requested or received.

Bill Inquiries and Refunds. If you believe you have been billed in error for a Membership, please notify us within 60 days of the billing date by writing to support@mitipi.com. Mitipi will not issue refunds or credits after the expiration of this 60-day period, except where required by applicable law.

 

2. Mitipi Eligibility Requirements

Membership Holder Age Requirement. You must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to purchase a Mitipi KEVIN® subscription and become a Membership Holder (as defined above).

Member Age Requirement. You must be at least 14 years old to become a Member (as defined above). If you are a parent or legal guardian of a Member under the age of 18 years old, you are subject to these Terms and responsible for that Member’s activity on the Mitipi Products and Services by allowing them to use the Mitipi Service.

Use Requirements. All individuals must abide by all safety precautions and instructions in the applicable product user manual. All individuals under 18 years of age must have permission to participate from a parent or legal guardian who will provide supervision.

We may, in our sole discretion, refuse to offer the Mitipi Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Mitipi Service is revoked where these Terms or use of the Mitipi Service is prohibited or conflicts with any applicable law, rule or regulation.

 

3. License to Use the Mitipi Service

License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the Mitipi Service, Mitipi grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the Mitipi Service, a right which may not be assigned or sublicensed to anyone. This license grant is subject to you agreeing to and abiding by the Mitipi Intellectual Property and DMCA Policy, which forms a part of these Terms. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or Mitipi.

Restrictions. Except as expressly permitted in writing by an authorized representative of Mitipi, you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Mitipi Service, nor will you take any measures to interfere with or damage the Mitipi Service. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the Mitipi Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by Mitipi in these Terms are reserved.

4. Privacy

Please review the Privacy Policy to learn about:

• What information we may collect about you;
• What we use that information for; and
• With whom we share that information.

 

5. Membership Requirements Registration

To enjoy full access to the Mitipi Service, you must register as a member of the Mitipi Service and enter into a subscription agreement for access to our content, and features (a “Subscription”). Your Subscription is also governed by the Membership Terms. You must provide complete and accurate registration information to Mitipi, complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.

Profile Information. You may not use someone else’s name or any name, location, or other public profile information that violates any third-party rights, is against the law, or is offensive, obscene, or otherwise objectionable (in Mitipi’s sole discretion).

Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account; this includes furnishing your username and password to third-party developed applications to connect to your account for any reason. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Mitipi Service. If you become aware of unauthorized access to your account, change your password and notify our Support team immediately via support@mitipi.com.

 

6. Membership Structure, Fees

Mitipi provides information on its membership and subscription requirements on the Mitipi Site and/or by other means through the Mitipi Service. Features and prices are subject to change.

 

7. Sale of Products, Services, and Memberships

Mitipi accepts orders for Mitipi connected products, such as the KEVIN® devices, Memberships (as defined above), apparel, and accessories that we may offer through the Mitipi Site or Mitipi platforms. The availability of products cannot be guaranteed. Please note that products, services, and other information provided are subject to corrections and changes without notice. Advertising depictions, graphics, and diagrams are for illustrative purposes only and may not accurately reflect actual product or component availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.

While Products and Services are presented with the greatest accuracy technically possible, representation on platforms and on applications through any means (including, as the case may be, graphic material, images, colors, sounds) is for reference only and implies no warranty as to the characteristics of the purchased Products and Services.

Prices, descriptions or availability of Products and Services are subject to change without notice. The characteristics of the chosen Product and Service will be outlined during the purchasing process.

 

Purchasing Process: The purchasing process includes these steps:

• Users must choose the desired Product and verify their purchase selection.
• After having reviewed the information displayed in the purchase selection, Users may place the order by submitting it.

Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Mitipi Site or to your email address after your payment has been processed.

Orders for Memberships, Membership Activation Codes, and gift, promotional or similar Memberships, whether for you or a third party recipient, are subject to additional terms and conditions, including the Membership Terms and all other communication provided to you and/or the third party recipient, whether on Mitipi Sites or in any acknowledgement of receipt or other email relating to your purchase of a Membership, Activation Code, or gift, promotional or similar Membership. Gift, promotional or similar Memberships, including gifted Mitipi All-Access Memberships, have no cash value or property value. Gift, promotional or similar Memberships, including gifted Mitipi All-Access Memberships, cannot be assigned, transferred, purchased or sold, redeemed for cash or credit or any other monetary value or currency, or used to pay debts by the recipient.

Methods of payment: Information related to accepted payment methods are made available during the purchasing process. Some payment methods may only be available subject to additional conditions or fees. In such cases related information will be displayed. All payments are independently processed through third-party services. Therefore, Mitipi does not collect any payment information – such as credit card details – but only receives a notification once the payment has been successfully completed. If a payment through the available methods fails or is refused by the payment service provider, the Owner shall be under no obligation to fulfill the purchase order. If a payment fails or is refused, the Owner reserves the right to claim any related expenses or damages from the User.

Payment of price in installments: The payment of the purchase price may be settled in two or more installments, within the deadlines specified by Mitipi or otherwise communicated by the Owner.
Specific Products may be excluded from this payment model.
If the User fails to meet any of the payment deadlines, the entire outstanding amount shall become immediately due and payable.

Authorization for future PayPal payment: If Users authorize the PayPal feature which allows future purchases, Mitipi will store an identification code linked to the Users’ PayPal account. This will authorize Mitipi to automatically process payments for future purchases or recurring installments of past purchases. This authorization can be revoked at any time, either by contacting the Owner or by changing the user settings offered by PayPal.

Purchase via app store and third parties: Mitipi can make available specific products and services for sale on third-party app stores. To access such purchases, Users must follow the instructions provided on the relevant online store (such as “Apple App Store” or “Google Play”), which may vary depending on the particular device in use. Unless otherwise specified, purchases done via third-party online stores are also subject to such third-parties’ terms and conditions, which, in case of any inconsistency or conflict, shall always prevail upon these Terms. Users purchasing through such third-party online stores must therefore read such terms and conditions of sale carefully and accept them.

Retention of Product ownership: Until payment of the total purchase price is received by the Owner, any Products ordered shall not become the User’s property.

Retention of usage rights: Users do not acquire any rights to use the purchased Product until the total purchase price is received by the Owner.

Delivery: Deliveries are made to the address indicated by the User and in the manner specified in the order summary. Upon delivery, Users must verify the content of the delivery and report anomalies without undue delay, using the contact details provided in this document or as described in the delivery note. Users may refuse to accept the parcel if visibly damaged. Goods are delivered to the countries or territories specified in the relevant section of the Mitipi website.

Failed delivery: The Owner cannot be held responsible for delivery errors due to inaccuracies or incompleteness in the execution of the purchase order by the User, nor for any damages or delays after handover to the carrier. If the goods are not received or collected at the time or within the deadline specified, the goods will be returned to the Owner, who will contact the User to schedule a second delivery attempt or to agree on the future course of action. Unless otherwise agreed, any delivery attempt starting from the second shall be at the User’s expense.

Delivery of digital content: Unless otherwise stated, digital content purchased is delivered via download on the device(s) chosen by Users. Users acknowledge and accept that in order to download and/or use the Product and Service, the intended device(s) and its respective software (including operating systems) must be legal, commonly used, up-to-date, and consistent with current market-standards. Users acknowledge and accept that the ability to download the purchased Product and Service may be limited in time and space.

Acceptable use: The Mitipi Services may only be used within the scope of what they are provided for, under these Terms and applicable law. Users are solely responsible for making sure that their use of the Mitipi Services violates no applicable law, regulations or third-party rights. Therefore, the Owner reserves the right to take any appropriate measure to protect its legitimate interests including by denying Users access to the Mitipi Services, terminating contracts, reporting any misconduct performed through the Mitipi Services to the competent authorities – such as judicial or administrative authorities – whenever Users engage or are suspected to engage in any of the following activities:

• violate laws, regulations and/or these Terms;
• infringe any third-party rights;
• considerably impair the Owner’s legitimate interests;
• offend the Owner or any third party.

Subscriptions: Subscriptions allow Users to receive a Product and Service continuously or regularly over time. Details regarding the type of subscription and termination are outlined below. Once the subscription period expires, the Product shall no longer be accessible.

Subscriptions handled via Apple ID: Users may subscribe to a Product using the Apple ID associated with their Apple App Store account by using the relevant process on the Application. When doing so, Users acknowledge and accept that

• any payment due shall be charged to their Apple ID account;
• subscriptions are automatically renewed for the same duration unless the User cancels at least 24 hours before the current period expires;
• any and all fees or payments due for renewal will be charged within 24-hours before the end of the current period;
• subscriptions can be managed or cancelled in the Users’ Apple App Store account settings.

The above shall prevail upon any conflicting or diverging provision of these Terms.

Extension of subscriptions: At the end of the initial term, subscriptions are automatically extended for an unlimited period, unless the User terminates before the end of such term. The fee due upon extension will be charged on the payment method that the User chose during purchase. After extension, the subscription will last for an indefinite period and may be terminated monthly. The User shall receive a reminder of the upcoming unlimited extension with reasonable advance, outlining the procedure to be followed in order to prevent the extension or terminate the subscription thereafter. If the notice of termination is received by the Owner by the end of the current month, the subscription shall expire at the end of such month.

8. Termination; Account Deletion

Term. These Terms begin on the date you first use the Mitipi Service and continue as long as you have an account with us and/or continue to use the Mitipi Service.

Termination. Mitipi may, in Mitipi’s sole discretion, suspend, disable, or delete your account (or any part thereof) or block or remove any User Content (defined below) that you submitted, for any lawful reason, including if Mitipi determines that you have violated these Terms or that your conduct or User Content would tend to damage Mitipi’s reputation or goodwill. Mitipi may block your access to the Mitipi Service to prevent re-registration. The suspension or deletion of User accounts shall not entitle Users to any claims for compensation, damages or reimbursement. The suspension or deletion of accounts due to causes attributable to the User does not exempt the User from paying any applicable fees or prices.

Users can terminate their account and stop using the Service at any time by directly contacting the Owner at the contact details provided in this document.

Effect of Termination / Account Deletion. Upon termination of these Terms all licenses granted by Mitipi will terminate. The following sections survive termination: Privacy, User Content, Indemnification, No Warranties, Limitation of Liability, Safety Warnings, Intellectual Property, Arbitration Requirement & Class Action Waiver, Contracting Entities, Governing Law and Jurisdiction, and all general provisions. In the event of account deletion for any reason, User Content may no longer be available and Mitipi is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all Content or features provided through the Mitipi Service. Mitipi, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by these Terms.

 

9. User Content

“Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Mitipi Service.

Unless where otherwise specified or clearly recognizable, all content available on the Mitipi Services is owned or provided by the Owner or its licensors. The Owner undertakes its utmost effort to ensure that the content provided on this Application infringes no applicable legal provisions or third-party rights. However, it may not always be possible to achieve such a result.
In such cases, without prejudice to any legal prerogatives of Users to enforce their rights, Users are kindly asked to preferably report related complaints using the contact details provided in this document.

The Owner holds and reserves all intellectual property rights for any content on the Mitipi platforms. Users may not therefore use such content in any way that is not necessary or implicit in the proper use of the Service. In particular, but without limitation, Users may not copy, download, share (beyond the limits set forth below), modify, translate, transform, publish, transmit, sell, sublicense, edit, transfer/assign to third parties or create derivative works from the content available on Mitipi Services, nor allow any third party to do so through the User or their device, even without the User’s knowledge.

Where explicitly stated on the Mitipi Services, the User may download, copy and/or share some content available through the Mitipi Services for its sole personal and non-commercial use and provided that the copyright attributions and all the other attributions requested by the Owner are correctly implemented. Any applicable statutory limitation or exception to copyright shall stay unaffected.

”User Content” means any content that users (including you) provide to be made available through the Mitipi Service. Content includes, without limitation, User Content.

Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Mitipi Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any Content that you access on or through the Mitipi Service.

As between you and Mitipi, you represent that you own (or have all rights necessary to grant Mitipi the rights below to) all User Content that you submit to the Mitipi Service and that Mitipi will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Mitipi a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Mitipi Service permission to view and/or hear your User Content for their personal, non-commercial purposes. If you make suggestions to Mitipi or through the Mitipi Service about improving or adding new features or products to the Mitipi Service or you otherwise provide feedback, product or service reviews, or testimonials, you hereby grant to Mitipi a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed, and copies of your User Content may continue to exist on the Mitipi Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

Access to external resources. Through the Mitipi Services Users may have access to external resources provided by third parties. Users acknowledge and accept that the Owner has no control over such resources and is therefore not responsible for their content and availability. Conditions applicable to any resources provided by third parties, including those applicable to any possible grant of rights in content, result from each such third parties’ terms and conditions or, in the absence of those, applicable statutory law.

 

10. Rights and Terms for Mitipi Apps

Rights in App Granted. Subject to your compliance with these Terms, Mitipi grants to you a limited, non-exclusive, non-transferable, revocable license to run the Mitipi Apps solely for your own personal non-commercial purposes. You may not copy the App except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not:

• copy, modify, or create derivative works based on the App;
• distribute, transfer, sublicense, lease, lend or rent the App to any third party;
• reverse engineer, decompile, or disassemble the App; or
• make the functionality of the App available to multiple users through any means.

Mitipi reserves all rights in and to the App not expressly granted to you under these Terms.

Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:

• These Terms are between you and Mitipi and not with the App Provider, and Mitipi (not the App Provider) is solely responsible for the App.
• The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
• In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mitipi.
• The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to:
  • product liability claims;
  • any claim that the App fails to conform to any applicable legal or regulatory requirement; and
  • claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Mitipi will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
• The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
• You represent and warrant that
  • 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;
  • you are not listed on any U.S. Government list of prohibited or restricted parties;
  • you are not an individual or associated with an entity designated under the UK’s Terrorist Asset-Freezing, etc. Act 2010 (TAFA 2010); and
  • you are not otherwise subject to or affected in any way by any national security or terrorism related rules, whether applicable to you personally or to your location or other circumstances.
• You must also comply with all applicable third-party terms of service when using the App.

 

11. General Prohibitions and Mitipi’s Enforcement Rights

You agree not to do any of the following:

• Post, upload, publish, submit, or transmit any User Content or engage in any activity that:
  • infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
  • violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability;
  • is fraudulent, false, misleading, or deceptive;
  • is defamatory, obscene, pornographic, vulgar, or offensive;
  • promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
  • is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
  • exploits minors or
  • promotes illegal or harmful activities or substances;
• Download and/or install any third party software and/or application on any Mitipi hardware that is not expressly permitted by Mitipi in writing;
• Use, display, mirror or frame the Mitipi Service or any individual element within the Mitipi Service, Mitipi’s name, any Mitipi trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Mitipi’s express written consent;
• Access, tamper with, or use non-public areas of the Mitipi Service, Mitipi’s computer systems, or the technical delivery systems of Mitipi’s providers;
• Attempt to probe, scan or test the vulnerability of any Mitipi system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Mitipi or any of Mitipi’s providers or any other third party (including another user) to protect the Mitipi Service or Content;
• Bypass any territorial restrictions, including IP address-based restrictions that may be applied to the Mitipi Service;
• Attempt to access, scrape or search the Mitipi Service or Content or download Content from the Mitipi Service, including through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Mitipi or other generally available third-party web browsers;
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
• Use any meta tags or other hidden text or metadata utilizing a Mitipi trademark, logo URL, or product name without Mitipi’s express written consent;
• Use the Mitipi Service or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or permitted expressly in writing by Mitipi;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Mitipi Service or Content to send altered, deceptive, or false source-identifying information;
• Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Mitipi Service or Content;
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Mitipi Service;
• Collect or store any personally identifiable information from the Mitipi Service from other users of the Mitipi Service without their express permission;
• Copy, use, index, disclose or distribute any information or data obtained from the Mitipi Service, whether directly or through third parties (such as search engines), without Mitipi’s express written consent;
• Alter, replicate, store, distribute, or create derivatives from the Content available via the Mitipi Service except as expressly permitted in writing by Mitipi;
• Impersonate or misrepresent your affiliation with any person or entity;
• Access, use, or exploit the Mitipi Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with Mitipi or the Mitipi Service;
• Violate any applicable law or regulation; or
• Encourage or enable any other individual to do any of the foregoing.

You also agree to abide by the Mitipi Community Guidelines and Moderation Policy.

Although we’re not obligated to monitor access to or use of the Mitipi Service or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Mitipi Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Mitipi Service and Mitipi’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Mitipi Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

 

12. Member Interactions, Dealings with Third Parties

When interacting with other Mitipi members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Mitipi Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Mitipi is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.

 

13. Indemnification

You agree to indemnify, defend, and hold harmless Mitipi and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to

• your activities on the Mitipi Service,
• any User Content submitted by or on behalf of you or
• your violation of these Terms.

 

14. Third Party Software and Applications

Downloading and/or installing any third party software and/or applications that are not expressly authorized by Mitipi on any Mitipi hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Mitipi.

 

15. Third Party Links and Content

There may be links on the Mitipi Service that let you leave the particular Mitipi Service you are accessing in order to access a linked site that is operated by a third party. Mitipi neither controls nor endorses these sites, nor has Mitipi reviewed or approved the content that appears on them. Mitipi is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that Mitipi is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.

 

16. No Warranties

Mitipi reserves the right to modify the Mitipi Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Mitipi Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Mitipi Service. Mitipi has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Mitipi Service is suitable for all users or that it will continue to be available for any length of time.

Mitipi provides the Mitipi Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Mitipi Service at your own risk. Other than as expressly provided in writing by Mitipi in connection with your purchase of a Mitipi product, to the extent permitted by law, Mitipi expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Mitipi makes no representations or warranties:

• That the Mitipi Service is or will be permitted in your jurisdiction;
• That the Mitipi Service will be uninterrupted or error-free;
• Concerning any Content, including User Content;
• Concerning any third party’s use of User Content that you submit;
• That the Mitipi Service will meet your personal or professional needs;
• That Mitipi will continue to support any particular feature of the Mitipi Service; or
• Concerning sites and resources outside of the Mitipi Service, even if linked to from the Mitipi Service.

To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in these Terms. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE MITIPI SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

 

17. Limitation of Liability

To the fullest extent permitted by law:

• Mitipi shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages from burglaries, for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Mitipi Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and
• Mitipi’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to Mitipi over the 12 months preceding the date your first claim(s) arose.

If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Mitipi’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Mitipi and you.

To the maximum extent permitted by applicable law, in no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for

• any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service; and
• any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or User account or the information contained therein;
• any errors, mistakes, or inaccuracies of content;
• personal injury or property damage, of any nature whatsoever, resulting from User access to or use of the Mitipi Products and Service;
• any unauthorized access to or use of the Owner’s secure servers and/or any and all personal information stored therein;
• any interruption or cessation of transmission to or from the Service;
• any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service;
• any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or
• the defamatory, offensive, or illegal conduct of any User or third party. In no event shall the Owner, and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount paid by User to the Owner hereunder in the preceding 12 months, or the period of duration of this agreement between the Owner and User, whichever is shorter.

This limitation of liability section shall apply to the fullest extent permitted by law in the applicable jurisdiction whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if company has been advised of the possibility of such damage.

The User agrees to defend, indemnify and hold the Owner and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from

• User’s use of and access to the Mitipi Products and Service, including any data or content transmitted or received by User;
• User’s violation of these terms, including, but not limited to, User’s breach of any of the representations and warranties set forth in these terms;
• User’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights;
• User’s violation of any statutory law, rule, or regulation;
• any content that is submitted from User’s account, including third party access with User’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information;
• User’s wilful misconduct; or
• statutory provision by User or its affiliates, officers, directors, agents, co-branders, partners, suppliers and employees to the extent allowed by applicable law.

No Waiver: The Owner’s failure to assert any right or provision under these Terms shall not constitute a waiver of any such right or provision. No waiver shall be considered a further or continuing waiver of such term or any other term.

Service interruption: To ensure the best possible service level, the Owner reserves the right to interrupt the Service for maintenance, system updates or any other changes, informing the Users appropriately. Within the limits of law, the Owner may also decide to suspend or discontinue the Service altogether. If the Service is discontinued, the Owner will cooperate with Users to enable them to withdraw Personal Data or information and will respect Users’ rights relating to continued product use and/or compensation, as provided for by applicable law. Additionally, the Service might not be available due to reasons outside the Owner’s reasonable control, such as “force majeure” events( infrastructural breakdowns or blackouts etc.).

 

18. Intellectual Property Acknowledgment

Without prejudice to any more specific provision of these Terms, any intellectual property rights, such as copyrights, trademark rights, patent rights and design rights related to the Mitipi Products and Service are the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties relating to intellectual property.

You acknowledge and agree that your use of the Mitipi Services and any Content contained therein is dependent upon you agreeing to and abiding by the Mitipi Intellectual Property and DMCA Policy at all times. You further acknowledge that the Mitipi Service contains hardware and software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Mitipi-generated content, and content provided to Mitipi by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and Mitipi, Mitipi own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the Mitipi Service.

 

19. Intellectual Property Usage and Reporting Infringement

All trademarks — nominal or figurative — and all other marks, trade names, service marks, word marks, illustrations, images, or logos appearing in connection with the Mitipi Products and Service are, and remain, the exclusive property of the Owner or its licensors and are subject to the protection granted by applicable laws or international treaties related to intellectual property.

Mitipi respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party’s right or other intellectual property rights. If you believe that the Mitipi Service or any Content contains elements that infringe or misappropriate your copyrights or other intellectual property rights (or the intellectual property rights of others), please report it to us via support@mitipi.com.

 

20. Arbitration Agreement and Class Action Waiver

20.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services, Content, or Mitipi connected products, equipment, apparel or accessories (each, a “Dispute” and collectively, the “Disputes”) will be resolved solely by binding, individual arbitration, unless expressly provided otherwise in this Section 20, and not in a class, representative or consolidated action or proceeding. You and Mitipi agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Mitipi entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that YOU AND MITIPI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Section 20 shall survive the termination of these Terms.

20.2 Exceptions and Opt-out Option. The only exceptions to Section 20 are the following:

• you or Mitipi each may seek to resolve an individual Dispute in small claims court if it qualifies.
• you or Mitipi each may seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights.
• you may opt out of arbitration entirely and litigate any Dispute individually if you provide us with a signed, written notice of your decision to do so pursuant to Section 20.9 below; however, if you are opting out of an updated version of this arbitration provision, you understand that you will remain subject to the prior version of any arbitration provision to which you had previously agreed.

20.3. Initial Dispute Resolution and Notification. You and Mitipi agree that, prior to initiating an arbitration or other legal proceeding, you and Mitipi will attempt to negotiate an informal resolution of the Dispute. To begin this process, and before initiating any arbitration or legal proceeding against Mitipi, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of Mitipi’s Legal Department at the Mitipi address set out in Section 24 of these Terms. For purposes of these Terms, initiating an arbitration means filing an arbitration demand (“Demand”).

Your Notice to Mitipi must contain all of the following information: (1) your full name, address, Mitipi username, and the email address associated with your Mitipi account; (2) a detailed description of the nature and basis of the Dispute; (3) a description of the relief you want, including any money damages you request; and (4) your signature verifying the accuracy of the Notice and, if you are represented by counsel, authorizing Mitipi to disclose information about you to your attorney.

After receipt of your Notice, you and Mitipi shall engage in a good-faith effort to resolve the dispute for a period of 60 days, which both sides may extend by written agreement (“Informal Dispute Resolution Period”). During the Informal Dispute Resolution Period, neither you nor Mitipi may initiate an arbitration or other legal proceeding.

If the Dispute is not resolved during the Informal Dispute Resolution Period, you may initiate an individual arbitration as provided below.

20.4. Conducting Arbitration and Arbitration Rules. Any arbitration must be initiated with and conducted by National Arbitration & Mediation (“NAM”) pursuant to its Comprehensive Dispute Resolution Rules and Procedures and/or its Mass Filing Supplemental Dispute Resolution Rules and Procedures (together, the “NAM Rules”), except as modified by these Terms.

An arbitration Demand filed with NAM must include a certification signed by the filing party verifying compliance with the Initial Dispute Resolution and Notification requirements and other requirements set out in this Section 20.

If NAM fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint the arbitration administrator.

Any arbitration hearing will take place in or nearest to the county or municipality where you live, unless you and Mitipi agree to a different location or to a virtual hearing.

The arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement, except that only a court of competent jurisdiction as set forth in Section 21 of these Terms (and not an arbitrator) shall have the exclusive authority to resolve any claim that all or part of the Class Action Waiver set forth in these Terms or the Mass Filing procedures set forth in Section 20.5 below are unenforceable, unconscionable, void, or voidable.

20.5. Mass Filing Procedures. YOU AND MITIPI AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF US IS WAIVING THE RIGHT TO BRING OR PARTICIPATE IN A MASS ARBITRATION. Mitipi’s receipt of one or more Notice(s) of substantially similar claims brought by or on behalf of 25 or more claimants (including you) within a 60-day period (“Mass Filing”) shall be subject to the additional procedures set forth below. Claims included in a Mass Filing, if not resolved during the Informal Dispute Resolution Period, may proceed only in accordance with the procedures set out below, and subject to the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM Mass Filing Rules”, available at https://www.namadr.com/resources/rules-fees-forms/”) to the extent not contrary to these Terms. If a court determines that this Section 20.5 is not enforceable as to your claim, then your claim may only proceed individually in court consistent with these Terms.

• Batching: You and Mitipi agree that your and other individuals’ claims deemed by Mitipi a Mass Filing may be filed with NAM in batches of no greater than 50 individuals’ claims at one time, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for you and other claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by Mitipi. After your claim is batched and permitted to be filed as a Demand, you and Mitipi agree that selection and appointment of an arbitrator for your Demand shall be governed by the NAM Mass Filing Rules.
• First (Bellwether) Batch: The first batch of up to 50 Demands are the Bellwether Arbitrations. If your claim is included in the Bellwether Arbitrations, you and Mitipi shall cooperate with the arbitrator assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference.
• Stay of Filing of Other Claims: If your claim is not among those selected for the Bellwether Arbitrations, your claim cannot be filed until it is assigned to a batch and authorized to be filed in a later stage of this process. No arbitration fees will be assessed on you or Mitipi in connection with your claim unless and until it is assigned to a batch and authorized to be filed with NAM.
• Mediation: After the Bellwether Arbitrations are completed, if your claim remains unresolved, you and Mitipi agree to mediate your claim along with any other unresolved claims included in the Mass Filing (“Global Mediation”). The mediator will be selected according to the procedure set forth in the NAM Rules, and Mitipi will pay the mediator’s fees. The Global Mediation shall be completed within 120 days of the selection of a mediator, unless extended by written agreement between you and Mitipi.
• Election To Proceed in Court: If Global Mediation is not successful in resolving your claim, and 100 or more claims included in the Mass Filing remain unresolved, you or Mitipi may opt out of arbitration and elect to have your claim resolved in court consistent with Section 21 of these Terms. You or Mitipi must exercise this election within 45 days of the completion of Global Mediation.
• Sequential Arbitration of Remaining Batches: If neither you nor Mitipi opt out of arbitration, another batch of no greater than 50 individuals’ claims will be selected from the Mass Filing, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by Mitipi. If your claim is included in this next batch of 50 claims, your claim will be filed with NAM, and you and Mitipi shall cooperate with the arbitrator assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference. The process of batching up to 50 individual claims at a time will continue until the parties resolve all claims included in the Mass Filing. No unbatched claim can proceed to be filed as a Demand until the previous batch has been resolved.
• For any claim subject to these Mass Filing procedures, any statute of limitations applicable to your claim shall be tolled from the date the Informal Dispute Resolution Period begins until the earlier of (1) the date your arbitration Demand is filed, or (2) the date you or Mitipi opts out of arbitration pursuant to Section 20.5.5.

20.6 . Arbitration Costs. Payment of all arbitration filing fees and costs will be governed by the applicable NAM Rules. If you prevail on your claim in arbitration, Mitipi will reimburse you for any portion of the arbitration filing fees you paid that exceeded the amount you would have paid to file a complaint in a court of competent jurisdiction pursuant to Section 21. If Mitipi prevails on your claim in arbitration, and the arbitrator finds that your claim was frivolous or filed in bad faith, the arbitrator may award Mitipi reimbursement from you of Mitipi’s arbitration filing fees and costs.

20.7 . Offer of Settlement. Mitipi may, but is not obligated to, make a written offer to settle your claim at least 14 days before the arbitration hearing date. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If an award is issued in your favor but is less than Mitipi’s settlement offer, the arbitrator may order you to pay the arbitration costs incurred by Mitipi after its offer was made, unless otherwise prohibited by the underlying law governing your claim.

20.8 . Class Action Waiver. YOU AND MITIPI AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF US MAY BRING CLAIMS (WHETHER IN COURT OR IN ARBITRATION) AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, COORDINATED, PRIVATE ATTORNEY GENERAL, REQUEST FOR PUBLIC INJUNCTIVE RELIEF, OR REPRESENTATIVE PROCEEDING. This also means that you and Mitipi may not participate in any class, collective, consolidated, coordinated, private attorney general, request for public injunctive relief, or representative proceeding brought by any third party.  Notwithstanding this provision or any other language in these Terms, you or Mitipi may participate in a class-wide settlement. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND MITIPI WAIVE ANY RIGHT TO A JURY TRIAL.

20.9 . Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “ Modification”, if Mitipi changes any terms of this Section 20 after the date you first accepted these Terms or any subsequent changes to these Terms, you may reject the new changes to Section 20 by sending us written notice, personally signed by you, by certified mail to the attention of Mitipi’s Legal Department at the Mitipi address set out in Section 24 of these Terms within 30 days of the date such change became effective, as indicated by the later of (1) the “ Last Updated” date of the Terms you seek to reject or (1) the date of Mitipi’s email to you notifying you of such change. Even if you reject a change, you will remain subject to Section 20 of the last version of the Terms you had accepted.

20.10 . Severability. If any portion of this Section 20 is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of Section 20 and all other Terms shall continue to be enforceable and valid.

 

21. Contracting Entities, Governing Law and Jurisdiction

Residents of Switzerland and other countries outside of the European Union and the United States of America and Canada are contracting with Mitipi AG (Passage du Cardinal 11 – Bluefactor, 1700 Fribourg, Switzerland) for the Mitipi Service. Residents of the European Union are contracting with Mitipi GmbH (Zimmerstrasse 23, 10969 Berlin, Germany) for the Mitipi Service. Residents of the United States of America as well as of Canada are contracting with Mitipi Inc. (21950 Via Regina, Saratoga, CA, USA).

These terms shall be governed by the laws of the jurisdiction under which that Mitipi entity is incorporated, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

Subject to the agreements in Section 20 above, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the courts located in the jurisdiction under which that Mitipi entity is incorporated, and you consent to the jurisdiction of those courts.

 

22. Interpretation; Severability; Waiver; Remedies

Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Mitipi in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Mitipi. Mitipi’s rights and remedies hereunder are cumulative and not exclusive.

 

 

23. Successors; Assignment; No Third Party Beneficiaries

These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms in any way without Mitipi’s prior written consent. Mitipi may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you. Mitipi also reserves the right to transfer, dispose of by novation, or subcontract any or all rights or obligations under these Terms, taking the User’s legitimate interests into account. Provisions regarding changes of these Terms will apply accordingly.

 

24. Notices

You consent to receive all communications including notices, agreements, disclosures, or other information from Mitipi electronically. Mitipi may communicate by email or by posting to the Mitipi Service. For support-related inquiries, you may email Support. For all other notices to Mitipi, write to the following addresses:

EU Residents:

Mitipi ​GmbH
Zimmerstrasse 23
​D-10969 Berlin
Germany

U.S. and Canadian Residents:

Mitipi Inc.
2010 El Camino Real PMB 3073
Santa Clara, CA 95050
USA

All other Residents:

Mitipi Ltd./AG
Passage du Cardinal 11 – BlueFactory
CH-1700 Fribourg
Switzerland​

 

Owner contact email: get@mitipi.com

Nothing in these Terms or otherwise limits Mitipi’s right to object to subpoenas, claims, or other demands.

 

25. Modification

We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the Mitipi Site and/or through the Mitipi Service. Modifications will be effective on the date that they are posted to the Mitipi Site. It’s important that you review the Terms whenever we update them before you use the Mitipi Service. If you continue to use the Mitipi Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20.9 “Effect of Changes on Arbitration,” you may not use the Mitipi Service anymore. Because the Mitipi Service is evolving over time we may change or discontinue all or any part of the Mitipi Service, at any time and without notice, at our sole discretion.

 

26. Entire Agreement

These Terms incorporate any other policies or procedures that are posted to the Mitipi Site from time to time. In the event of a conflict between any policies posted on the Mitipi Service and these Terms, these Terms will control. These Terms represent the entire understanding between Mitipi and you regarding the Mitipi Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Severability: Should any provision of these Terms be deemed or become invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect. Any such invalid or unenforceable provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent. These Terms constitute the entire Agreement between Users and the Owner with respect to the subject matter hereof, and supersede all other communications, including but not limited to all prior agreements, between the parties with respect to such subject matter. These Terms will be enforced to the fullest extent permitted by law.

 

27. Force Majeure

Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

 

28. SMS Terms

Email, SMS and Telephone. You can unsubscribe from email communications at any time. To stop receiving our promotional emails, follow the unsubscribe instructions in the email messages you receive from us, or contact us using the details provided under the How To Contact Us. We will process your request as soon as practicable after receipt, in accordance with applicable laws. Note that you will continue to receive transaction-related emails regarding products or services you have requested. We may also send you certain non-promotional communications regarding Mitipi and our Services and, to the extent permitted by law, you will not be able to opt-out of those communications (e.g., communications regarding updates to our Terms or our Privacy Policy).

If you opt in to “Mitipi” text messages, you will receive text messages from Mitipi. “Mitipi Account” text messages are non-promotional messages from Mitipi alerting you to important information, like the details of your delivery, failed subscription payments and other alerts related to your Mitipi subscription or purchases. To opt-out of receiving “Mitipi Account” text messages, text STOP to the number from which you received the message. We will send you one final message to confirm that you have been unsubscribed, and will process your request within a reasonable time after receipt, in accordance with applicable laws. If you experience any issues with text messages from Mitipi, email our Support team at support@mitipi.com. Carriers are not liable for delayed or undelivered messages. Message frequency varies. Message and data rates may apply.

 

29. Guarantees

The legal guarantee of conformity for goods applies in accordance with the laws of the country of their habitual residence.