PROSENT MOBILE CORPORATION
TERMS OF SERVICE FOR STYLECHAT
ProSent Mobile Corporation ("ProSent") provides StyleChat, the mobile application, as may be made available on iOS, Android, and or other mobile platforms (the "App"), among other services (the App, collectively with ProSent’s related services, the "Service"). These Terms of Service ("TOS") (available at http://stylechatmobile.com/sc_pages/TermsOfService.html), as updated from time to time, govern your use of the Service (including the App). Certain offers, features, services or discounts may have additional terms as expressly indicated by ProSent or by ProSent’s partners.
BY CLICKING "I AGREE," YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TOS.
These TOS provide that all disputes between you and ProSent will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review the Section T below for the details regarding your agreement to arbitrate any disputes with ProSent.
You acknowledge and agree that, as provided in greater detail in the TOS:
1. the App is licensed, not sold to you, and you may use the Service only as set forth in these TOS.
3. the use and operation of your device and your use of mobile network services in connection with your use of the Service may be subject to separate third party terms of service and fees (such as SMS, MMS, roaming, voice, data, and other applicable fees charged by your mobile network operator), and you are solely responsible for payment of any and all such fees and compliance with any and all applicable terms.
4. the Service is provided "as is" without warranties of any kind and ProSent’s liability to you is limited.
5. the App requires, or may require, access to the following services on your mobile device: UDID or other applicable device id, location, phone state and identity, internet, SD card contents, SMS/MMS messaging, contacts, native dialer, camera and wifi.
6. you may click here (http://www.stylechatmobile.com/sc_pages/TermsOfService.html) and print a copy of these TOS.
7. the "Notice Regarding Apple" applies.
A. ELIGIBILITY. By using the Service, you represent and warrant that: (i) you are at least 13 years of age; (ii) you are an individual, not a corporation or other business entity; (iii) you are not and shall not use the Service under an additional name, mobile number or email address; and (iv) you have not been previously suspended or removed from the Service. If you are older than 13 but younger than 18 years of age ("Minor Child"), you must have parental consent before registering for an account on the Service and your parent must accept these TOS on your behalf. If you, as a parent or legal guardian, have agreed to allow your Minor Child to use the Service, you agree that you shall be solely responsible for: (i) the online conduct of such Minor Child; (ii) monitoring such Minor Child’s access to and use of the Service; and (iii) the consequences of any use of the Service by such Minor Child.
B. REGISTERED ACCOUNT. In order to access the Service, you will have to create an account. To protect your privacy and security, we take reasonable steps to verify your identity before granting you account access or making corrections to your information. You represent and warrant that the information you provide to ProSent upon registration and, at all other times, will be true, accurate, current and complete. If you sign up for an account, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are responsible for maintaining the secrecy of your unique password and account information, as well as securing access to your mobile device at all times.
C. LIMITED LICENSE. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these TOS, ProSent grants you (i) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install one copy of the App downloaded from a legitimate marketplace, and to use such App so installed, or that may have been pre-installed on your mobile device by the device manufacturer, in each case solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on only one compatible mobile device that you own or control, and (ii) permission to access and use the Service for your personal use, solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (ii) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. The term App, as used herein, includes subsequent Apps you download and any update or modification to the App (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them. Please note that ProSent cannot guarantee the quality or availability of the Service. The Service uses mobile networks and there may be disruptions to the Service which will interfere with the quality of your experience.
D. USE OF THE APPS AND THE SERVICE. You are solely responsible for the use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms. You agree not to: (i) upload, submit or send to other users of the Service any inappropriate content; (ii) engage in disruptive activities on the Service; or (iii) intentionally interfere with, damage or disable the operation of the Service or any user’s enjoyment of it, by any means. You agree not to send junk mail or spam (SMS or email) to other users of the Service. You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with another person or entity.
E. LOCATION-BASED SERVICES. Some of the features of the Service may enable ProSent to tailor your experience based on your location ("Location-based Services"). In order to use Location-based Services, you must allow ProSent access to your localized position through your mobile phone, which ProSent may accomplish through a variety of means, including GPS location, if available. If you choose to disable Location-based Services on your device, you will not be able to utilize certain features of the Service. By authorizing ProSent to access your location, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service and (ii) ProSent may provide Location-based Services related to your then-current location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, AND PROSENT DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION BASED SERVICES.
F. SUBMITTED CONTENT. In the event that the App provides features that enable users to post any type of content to the Service (such as text, drawings, graphics, audio, video and pictorial works) ("Submitted Content"), you agree that you, and not ProSent, are solely responsible for all Submitted Content that you make available through the Service and the consequences of making such Submitted Content available. Similarly, ProSent is not responsible or liable to you for any Submitted Content provided by other users of the Service, or for any other communication made by users or third parties through the Service (including but not limited to any communication that may be inaccurate, illegal or otherwise objectionable).
By providing Submitted Content to ProSent, you hereby grant ProSent and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license (without any obligation to exercise) to use, reproduce, distribute, modify, prepare derivative works of, display, perform, and otherwise exploit your Submitted Content in connection with the development, operation, and support of the Service and ProSent’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Submitted Content. You also hereby grant to each user of the Service a non-exclusive license to access, use, reproduce, distribute, prepare derivative works of, display, perform, and otherwise exploit such Submitted Content.
ProSent does not allow infringing materials on the Service. Accordingly, you represent and warrant that you own or have the right to grant the foregoing license to any Submitted Content you post, the Submitted Content you post will not infringe any third party’s intellectual property rights or violate the rights of any third party, and the Submitted Content you post will be accurate and up to date. You further acknowledge and agree that ProSent may refuse to allow any Submitted Content on the Service or remove any Submitted Content at any time for any reason.
G. Digital Millennium Copyright Act. ProSent complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). ProSent will promptly terminate without notice the accounts of users that are determined by ProSent to be "repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Submitted Content removed from the Service more than twice. If you have any complaints with respect to material posted on the Service, you may contact our designated agent at the following address:
ProSent Mobile Corporation
39270 Paseo Padre Parkway, #352, Fremont, CA 94539
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of the material that you claim is infringing and where it is located on the Service;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
H. PURCHASING; SERVICE FEES.
1. Third Party Transaction Platform. We do not perform or transact your transactions. We use third party services and technology designed to facilitate your purchase transactions on our Services ("Third Party Platform"). Currently, our Third Party Platform is Two Tap, provided by amber.io, Inc. Your use of Two Tap is governed by Two Tap’s Terms and Conditions (available at https://twotap.com/terms/). We reserve the right to change our Third Party Platform at any time.
2. Your purchases. Our Services use the Third Party Platform to facilitate purchases between you and third party merchants. We are not merchants and do not transaction with your, nor do we process your transactions.
3. Prices. The prices listed on your App checkout page may include (i) the cost of each item you are purchasing, (ii) the cost of shipping each item, (iii) the total cost of your order that will be charged to you, and (iv) other applicable taxes and charges associated with the purchase. Please review this information carefully before finalizing any transactions using our Services.
4. Retailers. Our Third Party Platform facilitates the entire purchase transaction process between you and third party sellers and retailers ("Retailers"). Accordingly, all products you purchase from a Retailer in connection with your use of the Services will be: (i) priced by the applicable Retailer (including but not limited to whether such prices include applicable local, state, or federal taxes, and any additional fees, such as shipping and handling); and (ii) fulfilled, shipped, and otherwise serviced (including but not limited to the policies relating to returns, refunds, and cancellations) by the applicable Retailer. Additional terms may apply to your purchases from Retailers, therefore it is important that you read the applicable Retailers’ terms of sale before you make any purchases.
5. Payments. All payments for products purchased from Retailers are facilitated by the Third Party Platform and processed by the applicable Retailer or its designee(s). You acknowledge and agree that ProSent is not liable or otherwise responsible for any breaches of credit card or debit card security or privacy by such third-parties. You agree to pay for all products and services that you purchase in connection with your use of the Services, and the Third Party Platform may charge your selected payment method for any such fees owed.
6. Cancellations. ProSent is not the retailer or supplier of any of the products you purchase, and we do not process your orders. We cannot confirm or cancel your purchase transactions. Please contact the applicable Retailer for policies, questions, or concerns regarding your cancellations.
I. PRODUCT DESCRIPTIONS AND LIST PRICES. ProSent does not warrant that product descriptions, prices, or other content made available by or from Retailers, Third Party Platforms, third party web sites, manufacturers or suppliers and accessed through our Service are accurate, complete, reliable, current, or error-free. If a product you purchase in connection with your use of the Service itself is not as described, your sole remedy is to contact the applicable Retailer. The List Price (defined below) displayed for products available for purchase on the Service of the third-party retailer, manufacturer or supplier and accessed through our Service represents the full retail price listed on the product itself, suggested by such third-party Retailer, manufacturer or supplier, or estimated in accordance with standard industry practice or the estimated retail value for a comparably featured item offered elsewhere ("List Price"). The List Price is a comparative price estimate and may or may not represent the prevailing or "best" price at any particular time. In the event of pricing discrepancies, such as an item’s actual price being higher than the price stated on the Service, you agree that your sole recourse is to contact the applicable Retailer.
J. RETAILER RELATIONSHIP. If you have any questions or concerns regarding the products that you have ordered through our Third Party Platform partner, please contact the applicable Retailer. Though ProSent may pass through certain product marketing materials provided to it by applicable retailers and manufacturers, you should contact these applicable Retailers and manufactures for product support and service regarding the use, operation, or features of any product you purchase through the Service. Please contact the applicable Retailer or manufacturer regarding product support and customer service matters.
K. RESERVATION OF RIGHTS. The Service is owned and operated by ProSent. The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service (the "ProSent Materials"), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All ProSent Materials, including intellectual property rights therein and thereto, are the property of ProSent or its subsidiaries or affiliated companies and/or third-party licensors. Unless expressly permitted in these TOS, you may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the ProSent Materials. ProSent reserves all rights not expressly granted in these TOS. You shall not acquire any right, title or interest to the ProSent Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these TOS. All trademarks, service marks, and trade names are proprietary to ProSent, its affiliates, its licensors and/or the third parties providing services, products, or content in connection with the Service, and may not be exploited without the express permission of the owner of such marks or as otherwise authorized under these TOS.
L. TERM AND TERMINATION. These TOS will remain in effect until terminated. These TOS, and your rights and licenses hereunder, will terminate immediately upon your breach of the TOS. You may terminate the TOS by uninstalling the App and ceasing use of the Service. ProSent may terminate the Service and/or these TOS at any time for any reason without liability to you. Sections entitled Submitted Content, Reservation of Rights, Term and Termination, No Liability for Third Parties, Warranty Disclaimer, Limitation of Liability, Limitations by Applicable Law, Indemnity, Dispute Resolution, and Miscellaneous shall survive any termination of these TOS.
M. NO LIABILITY FOR THIRD PARTIES. On the Service, ProSent may provide: (i) links to other sites including the content therein ("Reference Sites"); (ii) vouchers and certificates redeemable for discounts on products or services of third-party merchants ("Offers"); or (iii) third-party materials, content, advertisements, products or services ("Third-Party Offerings"). ProSent has no control over third parties, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, safety, operability or availability of such Reference Sites and Third-Party Offerings. The inclusion of any link, Third-Party Offerings or Offer on the Service does not imply our affiliation, endorsement, investigation or monitoring thereof or of the business practices of the associated third party or merchant. Access and use of Reference Sites (including the information, materials, products, and services on Reference Sites or available through Reference Sites), Offers and Third-Party Offerings is solely at your own risk. Our terms and policies do not govern your use of any service other than the Service. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
The merchant or any user who issues the Offers (the "Merchant") is solely responsible for redeeming any Offer. The Offer is subject to the terms and conditions of the Merchant. The Merchant is solely responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Merchant or its products and services. ProSent expressly disclaims any responsibility for all products and services provided by a Merchant or any other third party, and you waive, and release ProSent and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to: (i) any Offer (including the terms governing the redemption of such Offer, any inability to redeem the Offer, and any fraudulent activity related to the Offer); (ii) any service or product provided by a Merchant or other third party; or (iii) any act or omission by any Merchant (including Merchant’s failure to comply with the terms of an Offer or applicable law).
N. WARRANTY DISCLAIMER. We do not give any warranty or guarantee of any kind that product descriptions or any other content of the Service is accurate, complete, reliable or error-free. Product warranties and guarantees may be provided to you by each applicable Retailer, supplier, or manufacturer of your purchased items in respect of their products. We are not responsible for the products you purchase from third-party Retailers, manufacturers or suppliers in connection with your use of the Services. THE APP AND THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROSENT DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. PROSENT EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO: (I) THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES; (II) THE SERVICE BEING UNINTERRUPTED, AVAILABLE FOR USE AND ERROR FREE; (III) THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION AVAILABLE THROUGH THE SERVICE; AND (IV) ANY OFFERS OR THIRD-PARTY OFFERINGS, PRODUCTS OR SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD OR OTHERWISE OBTAIN INFORMATION, MATERIALS OR DATA THROUGH THE SERVICE OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, NECESSARY MAINTENANCE OR REPAIR TO YOUR PROPERTY (INCLUDING YOUR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS.
O. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL PROSENT, ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, PARTNERS OR AGENTS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF (I) THESE TOS; (II) YOUR USE OR A DELAY OR INABILITY TO USE THE SERVICE OR ANY REFERENCE SITES; (III) ANY OFFERS, INFORMATION, PRODUCTS AND SERVICES ADVERTISED IN OR OFFERED OR OBTAINED THROUGH THE SERVICE; (IV) PROSENT'S REMOVAL OF ANY MATERIALS OR CONTENT SUBMITTED OR POSTED ON ITS SITE; OR (V) ANY OTHER INTERACTIONS WITH PROSENT, EVEN IF PROSENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS LIMITATION SHALL APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO PRODUCTS AND SERVICES RECEIVED BY YOU THROUGH THE USE OF AN OFFER OBTAINED BY YOU THROUGH THE SERVICE OR ADVERTISED ON THE SERVICE).
P. LIMITATIONS BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Q. INDEMNITY. You agree to indemnify, defend and hold ProSent and its affiliates, officers, directors, suppliers, and customers harmless from and against any and all claims, losses, damages, liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of: (i) your use or misuse of the Service; (ii) your Submitted Content; (iii) your violation of these TOS; (iv) your violation of any applicable law or regulation; (v) your violation of the rights of any third parties; or (vi) any use of the Offers other than according to the applicable terms and conditions of the issuing Merchants. ProSent reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of ProSent. ProSent will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
S. GOVERNING LAW. These TOS shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and ProSent agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that ProSent Materials included in the Service are appropriate or available for use in other locations.
T. DISPUTE RESOLUTION AND ARBITRATION. In the interest of resolving disputes between you and ProSent in the most expedient and cost effective manner, you and ProSent agree that any and all disputes arising in connection with these TOS shall be resolved by confidential binding arbitration.
1. Generally. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these TOS, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these TOS. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TOS, YOU AND PROSENT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
2. Exceptions. Notwithstanding subsection 1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
3. Arbitrator. Any arbitration between you and ProSent will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these TOS, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting ProSent.
4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). ProSent's address for Notice is: ProSent Mobile Corporation located at 39270 Paseo Padre Parkway, #352, Fremont, CA 94539. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or ProSent may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or ProSent shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, ProSent shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by ProSent in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.00, whichever is greater.
5. Fees. In the event that you commence arbitration in accordance with these TOS, ProSent will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Alameda County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse ProSent for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
6. No Class Actions. YOU AND PROSENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ProSent agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
7. Modifications. In the event that ProSent makes any future change to this arbitration provision (other than a change to ProSent's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to ProSent's address for Notice, in which case your account with ProSent shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
8. Enforceability. If Subsection No Class Actions. YOU AND PROSENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ProSent agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. is found to be unenforceable or if the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section DISPUTE RESOLUTION AND ARBITRATION. In the interest of resolving disputes between you and ProSent in the most expedient and cost effective manner, you and ProSent agree that any and all disputes arising in connection with these TOS shall be resolved by confidential binding arbitration. shall govern any action arising out of or related to these TOS.
U. MODIFICATIONS. ProSent reserves the right, in its sole discretion, to change, modify, add, or remove portions of these TOS on a going-forward basis at any time. Please check these TOS periodically for changes on the ProSent website (currently available at http://www.stylechatmobile.com/sc_pages/TermsOfService.html), through the App, or both. The TOS will be identified as of the most recent date of revision and will be effective immediately upon posting, except in the event any such modification materially alters your rights hereunder. In the event that the modification materially alters your rights hereunder: (i) we will attempt to notify you directly through a message sent to the email address you have provided to ProSent, if any, or a pop-up window or other notification when you access or use the Service; (ii) such materially modified TOS will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you; and (iii) no modifications to these TOS will apply to any dispute between you and ProSent that arose prior to the date of such modification. Additionally, if the changed TOS materially modify your rights or obligations, we may require you to provide consent by accepting the changed TOS. If you do not accept the changed TOS, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed TOS. If you are dissatisfied with these TOS, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
V. MISCELLANEOUS. These TOS constitute the entire agreement between you and ProSent, and supersede any and all prior agreements, negotiations, or other communications between you and ProSent, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. In the event that any provision of these TOS is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these TOS; and (b) the validity and enforceability of all of the other provisions hereof shall in no way be affected or impaired thereby. You may not assign these TOS without the prior written consent of ProSent, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. ProSent may assign these TOS without restriction. Subject to the foregoing, these TOS shall be binding on the parties and their respective successors and permitted assigns. You acknowledge and understand that if ProSent is unable to provide the Service as a result of a force majeure event ProSent will not be in breach of these TOS. A force majeure event means any event beyond the control of ProSent. The failure to exercise, or delay in exercising, a right, power or remedy provided in these TOS or by law shall not constitute a waiver of that right, power or remedy. ProSent's waiver of any obligation or breach of these TOS shall not operate as a waiver of any other obligation or subsequent breach of the TOS.
X. CONTACTING PROSENT. The Service hereunder is offered by ProSent Mobile Corporation located at 39270 Paseo Padre Parkway, #352, Fremont, CA 94539. You may contact us by sending correspondence to the foregoing address or by emailing us at legal@ProSentmobile.com. If you are a California resident, you may have these TOS mailed to you electronically by sending a letter, containing your electronic mail address and a request for these TOS, to the foregoing address.
Y. NOTICE REGARDING APPLE. You acknowledge that these TOS are between you and ProSent only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and if applicable, Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of any App infringes that third party's intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple's subsidiaries, are third party beneficiaries of these TOS, and upon your acceptance of these TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOS against you as a third party beneficiary of these TOS. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.