Mobile Application End User License Agreement

MOBILE APPLICATION END USER LICENSE AGREEMENT

THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION AND JURY OR JURY TRIAL WAIVER CLAUSES IN SECTION 18 BELOW THAT IS APPLICABLE TO YOU AND US

This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Mingle Mobile LLC. (“Mingle Mobile,” “we,” “us” or “our”). This Agreement governs your use of the Mingle Mobile mobile application, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

BY CLICKING THE “ACCEPT” BUTTON AND DOWNLOADING, INSTALLING, AND USING THE APPLICATION, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN YOUR STATE OF RESIDENCE (EIGHTEEN (18) YEARS OLD OR LEGALLY EMANCIPATED UNDER THE APPLICABLE LAW) AND YOU ARE LEGALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION.

  1. License Grant. Subject to the terms of this Agreement, Mingle Mobile grants you a limited, non-exclusive, and nontransferable license to:
    1. download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation; and
    2. access, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms and Conditions applicable to such Content and Services as set forth in Section 5.

 

  1. License Restrictions. Licensee shall not:
    1. copy the Application, except as expressly permitted by this license;
    2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable or copyrightable, of the Application;
    3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
    4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
    5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
    6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

 

  1. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application or any content or services accessed thereby under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Mingle Mobile reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

 

  1. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Mingle Mobile may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

 

  1. Content and Services. The Application may provide you with access to Mingle Mobile’s website located at https://www.minglemobile.com/ (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by our Terms of Service located at https://www.minglemobile.com/policies/terms-of-service, as well as our Privacy Policy located at https://www.minglemobile.com/policies/privacy-policy, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Service and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Service will also be deemed a violation of this Agreement.

 

  1. Geographic Restrictions. The Content and Services are provided for access and use only by persons located in the . You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States, and that access thereto may not be legal by certain persons or in certain countries.

 

  1. Updates. Mingle Mobile may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Mingle Mobile has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

 

 

  1. the Application will automatically download and install all available Updates; or
  2. you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

 

  1. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Mingle Mobile is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. You acknowledge and agree that the accessibility of any Third-Party Materials through the Application does not and shall not constitute an endorsement of Mingle Mobile of such Third-Party Materials. Mingle Mobile does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

 

  1. Device and Password Security. You are responsible for maintaining the security of your device and confidentiality of your password, Personal Identification Number (PIN) code, or other means which may be used to access or approve an action on your device. If your device, password or PIN code is lost, stolen or used without your permission, call to notify us immediately at (800) 974-6122. If you disclose your password or PIN to a third-party bill payment vendor, Mingle Mobile is not responsible for the accuracy and timeliness of your bill payments. .

 

  1. Term and Termination.

 

  1. The term of Agreement commences when you install the Application and acknowledge your acceptance and will continue in effect until terminated by you or Mingle Mobile as set forth in this Section 10.
  2. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
  3. Mingle Mobile may terminate this Agreement at any time without notice if it ceases to support the Application, which Mingle Mobile may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
  4. Upon termination:
    1. all rights granted to you under this Agreement will also terminate; and
    2. you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
  5. Termination will not limit any of Mingle Mobile’s rights or remedies at law or in equity.

 

  1. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MINGLE MOBILE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MINGLE MOBILE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

 

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MINGLE MOBILE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

 

  1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
  2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR MINGLE MOBILE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. Indemnification. You agree to indemnify, defend, and hold harmless Mingle Mobile and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

 

  1. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

 

  1. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

 

  1. Governing Law. This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of Florida, without regard to the conflicts of laws rules. Arbitration or court proceedings must be in Florida, Broward County.

 

  1. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

 

WE (YOU AND MINGLE MOBILE) EACH AGREE THAT ANY AND ALL CLAIMS OR DISPUTES ARISING OUT OF OR IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, THE RELATIONSHIP BETWEEN US, OR OUR SERVICES, DEVICES OR PRODUCTS WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT (DESCRIBED IN SECTION 21), INCLUDING BUT NOT LIMITED TO, ANY BILLING DISPUTES AND ANY THRESHOLD QUESTIONS OF THE ARBITRABILITY OF SUCH DISPUTE OR CLAIM EXCEPT THAT YOU OR WE MAY SEEK INJUNCTIVE OR EQUITABLE RELIEF IN A COURT OF PROPER JURISDICTION IF THE CLAIM RELATES TO INTELLECTUAL PROPERTY INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.

For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve your claim by sending a written description of your claim to the address in Section 23 below. We each agree to negotiate with each other in good faith about your claim. If we do not resolve the claim within 60 days after we receive this claim description, you may pursue your claim in arbitration. You may pursue  your  claim  in  a  court  only  under  the  circumstances  described  below.  We  each  agree  that  if  you  fail  to  timely  pay  amounts  due,  we  may  assign  your  account  for  collection,  and  the  collection  agency  may  pursue  in  court  claims  limited  strictly  to  the  collection  of  the  past  due  amounts  and  any  interest  or  cost  of  collection  permitted by law or the Agreement. Notwithstanding the above, YOU  MAY  CHOOSE  TO  PURSUE  YOUR  CLAIM  IN  COURT  AND  NOT  BY  ARBITRATION if: (a) your claim qualifies, you may initiate proceedings in small claims court; or (b) YOU OPT OUT  OF  THESE  ARBITRATION  PROCEDURES  WITHIN  30  DAYS  FROM  THE  DATE  YOU  ACTIVATED  SERVICE FOR THE RELEVANT LINE (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for  each  line  of  Service.  You  may  opt  out  of  these  arbitration  procedures  by  calling 1- 800-974-6122 or sending an opt-out email to support@minglemobile.comAny opt-out received after the Opt Out Deadline will not be valid and you must pursue your claim in arbitration or small claims court.

Either you or Mingle Mobile may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to Mingle Mobile’s registered agent (see Section 23) to begin arbitration. The American Arbitration Association (AAA) will arbitrate all disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon filing of the arbitration demand, if the arbitrator finds that you cannot afford to pay AAA filing, administrative, hearing, and/or other fees and cannot obtain a waiver from AAA, we will pay them for you if you complied with the Informal Dispute Resolution Process set forth above. In addition, we will reimburse all such AAA filing, administrative, hearing, and/or other fees for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous or you did not comply with the Informal Dispute Resolution process set forth above, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the AAA Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses. For claims that total more than $75,000, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules.

The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. In addition, for claims under $75,000 as to which you followed the Informal Dispute Resolution Process before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, Mingle Mobile agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. The award of the arbitrator is final and binding upon you and us.

 

  1. CLASS ACTION WAIVER

WE (YOU AND MINGLE MOBILE) EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and us that this Class Action Waiver is unenforceable, then the arbitration agreement will be void as to you.

 

Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and we agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in accordance with the Governing Law, Venue and Jurisdiction, and Court Proceedings described in Section 22.

 

  1. Judge or Jury Trial Waiver

YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. An arbitrator can award, on an individual basis, the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

 

  1. Small Claims You and Mingle Mobile retain the right to seek remedies in small claims court for disputes or claims within that court's jurisdiction, unless such action is transferred, removed or appealed to a different court. Any court having jurisdiction may enter judgment on the arbitrator’s award.

 

Notwithstanding the foregoing, you maintain your right to file a complaint with the FCC, your state’s Public Service Commission, or any other federal or state government that may, if permitted by law, seek relief against us on your behalf.

 

  1. Governing Law, Venue and Jurisdiction, and Court Proceedings
    You may choose to have the arbitration conducted by telephone or videoconference, based on written submissions, in person in Florida, Broward County, or at another mutually agreed upon location that is reasonably convenient to you. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Except to the extent preempted by or inconsistent with applicable federal law and as otherwise described herein, this agreement is governed by the laws of Florida, without regard to choice of law principles, conflicts of laws rules, or your actual state of residence. For any claim that proceeds in court rather than in arbitration, we each waive our right to a jury trial and any claims for punitive or exemplary damages. Unless otherwise specified herein, any Disputes of a legal nature, whether a claim, complaint, arbitration demand, or otherwise that is not subject to the mandatory arbitration provision, shall be subject to the exclusive jurisdiction of the federal or state courts located within the state of Florida.

  1. Registered Agent Information

Mingle Mobile’s Registered Agent Contact Information:

Incorp Services, Inc.
131 Continental Drive Suite 301
Newark, DE 19713

 

  1. Force Majeure. Neither Party will be liable to the other for any failure or delay in fulfilling or performing any provisions of this Agreement (other than payment obligations) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each a “Force Majeure Event”).

 

  1. Entire Agreement. This Agreement, our Terms of Service, and our Privacy Policy constitute the entire agreement between you and Mingle Mobile with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

 

  1. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.