MYTABS™ INDIVIDUAL USER TERMS AND CONDITIONS
Welcome to TABS! These User Terms and Conditions (“Use Terms”) governs Your use of the MyTabs website, the TABS™ mobile application (the “App”), and in-App services and other Content made available to You through any of the foregoing (collectively, the “Services”), as well as your purchase, possession, or use of any tickets, products, or services acquired through the Services (other than Third Party Products, which are addressed below). As used herein, the terms “MyTabs”, “We”, “Us”, and “Our(s)” individually and collectively refer to MyTabs, LLC, a Texas limited liability company, and the terms “You” and “Your(s)” refer to You, the individual user of the Services. A “Listing Member” is a business that participates in the TABS social marketing network made accessible through the Services.
BY VISITING OR USING THE MYTABS WEBSITE, DOWNLOADING OR ACCESSING THE APP, CREATING A MYTABS ACCOUNT, OR OTHERWISE USING THE SERVICES, YOU EXPRESSLY ACCEPT AND AGREE TO BE LEGALLY BOUND BY THESE TERMS WITHOUT RESERVATION, LIMITATION, OR QUALIFICATION. THE PRIVACY POLICY, WHICH YOU MUST READ, CONTAINS IMPORTANT INFORMATION ABOUT THE USE OF YOUR PERSONAL DATA AND OTHER INFORMATION REGARDING YOUR PRIVACY. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OR OUR PRIVACY POLICY, YOU SHOULD EXIT OUR WEBSITE AND MAY NOT ACCESS OR USE ANY OF THE SERVICES OR CONTENT MADE AVAILABLE.
IMPORTANT NOTICE: We may make changes to the Use Terms at any time. It is Your responsibility to check for updates to these Terms when you log into the Services. Any changes We make will be effective immediately when We post a revised version of the Terms on the MyTabs website. By visiting or using the MyTabs website, or by downloading the MyTabs App, or by continuing to use the Services after the Use Terms have been revised, you expressly agree to the Use Terms, as updated. To the extent that these Use Terms are different from a prior version of the Use Terms that You have previously agreed to, these Use Terms shall prevail and control.
1. ACCOUNT REGISTRATION
1.1 The Services are not targeted at children under the age of 13. Children under the age of 13 are not permitted to use the Services. We strongly encourage all parents and guardians to monitor their children’s Internet use. If you use the Services, you affirm you are at least 13 years old.
1.2 When You register for an account (“Account”), We may provide the You with an Account identification and password (Your “Credentials”). We may refuse registration, cancel an Account, or deny access to the Services for any reason. You are responsible for protecting Your Credentials and are solely in control over who may access Your Account or uses the Services on Your behalf. You may not transfer or sell access to your Account. Similarly, You may not use another user’s Account without that user’s permission. You agree that You shall not, nor shall permit any person to, use the Services to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (e) attempt to gain unauthorized access to the Services or Our network infrastructure or their related systems. You shall be responsible for all activity occurring under Your account, and any breach of these restrictions by someone having access to your Account shall be deemed a breach by You. We will not be liable for any harm associated with, related to, or resulting from the disclosure of your Credentials or the use by anyone else of Your Credentials.
1.3 You shall: (i) notify Us immediately of any unauthorized use of Your Account, Your Credentials, or any other known or suspected breach of security; (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of the Licensed Product(s) and/or Content that is known or suspected by You caused by the failure to comply with Section 1.2; and (iii) not provide false identity information. We may require you to change your username and/or password if we believe your Account is no longer secure, or if we receive a complaint that your username violates someone else’s rights.
1.4 We may perform regularly scheduled maintenance during maintenance windows defined by Us. Other scheduled and non-scheduled downtimes may occur. The Services will not be available during these times.
1.5 You understand and agree that You shall be responsible for any third-party mobile carrier or internet service provider fees incurred in connection with the downloading of Content from the Services, or with the sending or receiving of text messages or mobile notifications as described in Section 6 below. You agree to use the Services only with the hardware and software specified by Us, if any. It is not the responsibility of MyTabs to make any changes to the Services to ensure hardware or software compatibility.
2. USE OF THE SERVICES
2.1 We agree to make the Services available to You remotely through the Internet, subject to Section 1.4 above.
2.2 We grant to You a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right and license to access the Services and use the App, in object code form only, on Your compatible mobile devices, for Your own personal, non-commercial use, in the United States and its territories in accordance with and subject to these User Terms. The foregoing may provide access to Our proprietary and third-party software and databases. These third-party software elements are subject to additional terms and conditions set forth in their applicable product-specific terms and made a part of and incorporated by reference to these Use Terms. IMPORTANT NOTICE: IF YOU ACCESS AND/OR USE THE SERVICES FROM OUTSIDE OF THE UNITED STATES, YOU DO SO AT YOUR OWN RISK.
2.3 If You install or use the App, We grant you a nonexclusive, royalty-free, non-sublicensable right and license to install and use the App on a single, authorized mobile device for Your personal, non-commercial, and entertainment purposes only. We do not grant you any rights to any related documentation, support, upgrades, maintenance, or other enhancements to the App. We will not provide You with any device, internet access, or wireless connection to use the App. We are not responsible for any interaction between You and another MyTabs App user, or for any information You transmit through the App (including your location).
2.4 In using the Services, You agree that you shall not, nor shall allow any third party to:
(i) submit information that is unlawful, defamatory, offensive, libelous, fraudulent, deceptive, inaccurate, or harmful, or that discloses personal, private or confidential information belonging to others;
(ii) request personal information from a minor or to upload or post content that include the image or likeness of an individual under eighteen (18) years of age without parental consent;
(iii) post dishonest, abusive, harmful, misleading, or bad-faith ratings or reviews, or ratings or reviews that are irrelevant to the Content being reviewed;
(iv) submit or upload any materials for which You do not have permission, right, or license from Us or the rights-holder, or that infringe on the rights of any third party;
(vi) submit or post unsolicited commercial communications, such as (by way of example and not limitation) solicitations, pyramid schemes, chain letters, investment opportunities, contests, and surveys, or engage in spamming or flooding;
(vii) submit, upload, or provide links to material that could be considered obscene, sexually explicit, violent, harassing, hateful, pornographic, lewd, insulting or abusive, that characterizes violence as acceptable, glamorous, or desirable, or that contains any personal contact information or information identifying any third party;
(viii) use any deep-link, or “scrape”, harvest, or otherwise collect user behavior information and/or data;
(ix) impersonate any person or misrepresent Your affiliation another person or entity;
(x) use ticket bot technology to search for, reserve, or purchase tickets through the Services; for clarity, You are prohibited from using automated ticket purchasing software on the Services and from circumventing any security measure, access control system, or other technological control or measure on the Services that is used to enforce a Listing Member’s ticket purchasing limitations; or
(xi) plan, engage in, or encourage any illegal, manipulative, or fraudulent conduct or activity.
We reserve the right, at Our sole discretion, to terminate Your Account, remove or edit content, or deny access to the Services should You breach any of the above restrictions.
2.5 You understand and agree that certain third-party products provided with the Services are provided under a separate license directly from the third-party licensor (“Third Party Products”). You acknowledge and agree that, to the extent that any such Third Party Products are provided with the Services: (i) such Third Party Products are provided to You on an “as-is”, pass-through basis, and as such are provided to You without any warranty, indemnification, support or other representation by Us; (ii) We bear no liability with respect to such Third Party Products and support services for such Third Party Products will be provided at Our sole discretion; and (iii) You may be required to upgrade to new versions of such Third Party Products as they become available and supported by their respective licensors. The Third Party Products that may be included in the Services are identified on Our Website and may be provided by Us as integrated applications or as optional features.
2.6 To the extent that a Listing Member enables a Third Party Product, the offering, sale, purchase, or consumption of items such as alcohol, cannabis, tobacco, gambling or similar related products (“Age Restricted items”) are provided subject to applicable laws and regulations governing such Age Restricted Items. We have no affiliation with or liability concerning the Listing Member’s offering such Age Restricted Items.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 As between You and Us and subject to any applicable third-party rights, We are and shall remain the sole owner of any and all intellectual property rights concerning the Services and Content being provided to You.
3.2 We or our licensors are providing all text, graphical content, video, data, and other content made available through the Services (collectively, the “Content”) to You solely to support Your permitted use of the Services. We may modify the Content from time to time at Our sole discretion. No other license is granted to You under these Use Terms for any other purpose. Any use of the Services outside of the express permissions granted to You by these Use Terms shall constitute a material breach of these Use Terms.
3.3 The registered and unregistered trademarks, logos, and service marks displayed on the MyTabs website, the App, and/or on any Content are owned by Us or our licensors. You may not use Our trademarks, logos, and service marks, or those of our licensors, in any way without prior written permission.
3.4 Except as expressly permitted herein, You shall not, and shall not allow any third party, to:
(i) copy, reproduce, broadcast, alter, license, transmit, sell, distribute, exhibit, rent, transfer, translate, lease, publish, disclose, display, or create derivative works of the Services or any of the Content, in any form or by any means;
(ii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms in, of, or for the Services or Content by any means; or
(iii) modify, incorporate into the Services or Content, or create derivative works of any part of the Services or Content.
3.5 We reserve the right to seek all remedies available at law and in equity for violations of the terms and conditions set forth in these Use Terms, including the right to block access from a particular Internet address to the Services. You agree that any violation, or threatened violation, by you of these Use Terms will cause Us irreparable and unquantifiable harm, for which monetary damages might be inadequate, and that We are therefore entitled to obtain any injunctive or equitable relief that we deem necessary or appropriate without the requirement of posting bond or other security. These remedies are in addition to any other remedies we may have at law or in equity.
4. USER DATA ENTRY
4.1 The Services may permit you to upload, submit, or otherwise transmit information such as reviews, comments, ratings, photos, images, videos, sounds, text, data, webpage links, and location information; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information (collectively, “User Content”). As between You and Us, You retain all right, title, and interest (including any intellectual property rights) in and to Your User Content. We may host user reviews, media feeds, message boards, and other content streams on the App or MyTabs website. By submitting User Content to Us, You represent to Us that (a) You own, or have the necessary rights and permissions to submit the User Content and to grant the licenses to Us under this Section 4, and (b) you have the written permission of every identifiable person in the User Content to use that person’s name and likeness in the manner contemplated by these Use Terms or, if the person is a minor, the written permission of the minor’s parent or legal guardian.
4.2 You grant to Us and our subcontractors a nonexclusive, worldwide, royalty-free, fully paid, transferable license to host, cache, record, copy, and display Your User Content, for the purpose of making the Services available for use by You. In addition, in submitting User Content to Us, you grant to Us a non-exclusive, royalty-free, irrevocable, transferable, sub-licensable (through multiple tiers, including to Listing Members and other third-party websites and feeds), worldwide right and license to use, reproduce, modify, display, distribute, create derivative works of, archive, perform, commercialize, and otherwise exploit Your User Content, at our sole discretion, in all formats and media channels now known or later discovered, without any compensation or acknowledgement to you or anyone else. In connection with such license, You hereby waive any privacy or rights of publicity or similar rights in an individual’s name or likeness, in addition to any moral or other rights you may have in the User Content so submitted. You represent and warrant that You have the authority to grant the foregoing licenses, and further agree not to use data, materials, or information with the Services for which You do not have authority to grant such licenses. The licenses You grant to Us under this Section 4.2 shall terminate concurrently with the termination of these Use Terms; provided, however, that any User Content submitted to Us prior to the date of termination shall not be affected thereby. You will not make or authorize any claim against Us alleging that Our use of Your User Content violates, infringes, or misappropriates any of your rights.
4.3 If You or someone using your Account transmits User Content to a third-party website or other hosting service that is linked to or made accessible by the Services, You provide Us with the consent to enable any such transmission of User Content, but such interaction is solely between You and the third-party website or hosting service. We make no warranties or representations about such third-party sites or hosting services and shall have no liability for the Your use of such third-party sites or hosting services.
4.4 If we are notified that your User Content violates these Use Terms, we may investigate the allegation and may decide to remove your User Content and cancel your Account. You agree that We have the right, without liability to You or any third party, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third party, as We believe is reasonably necessary or appropriate to enforce and/or verify Your compliance with any part of this Agreement (including but not limited to Our right to cooperate with any legal process concerning Your use of the Services, and/or any third-party claim that your use of the Services is unlawful and/or infringes such third party's rights).
4.5 If You are a copyright owner or an agent thereof and believe that Content infringes upon your copyright rights, You may submit to Us a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Us with the following information in writing (see 17 U.S.C. § 512(c)(3) for further details):
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to be infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iv) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to allow the Us to locate the material;
(v) information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and if available, an e-mail address;
(vi) a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vii) a statement that the information contained in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that if You fail to comply with all of the above requirements of this Section 4.5, Your DMCA notice may not be valid. Please be advised that there may be legal consequences for sending a false or frivolous takedown notice; therefore, We encourage You to consult with legal counsel prior to filing any DMCA notice or counter-notice.
5. PROMOTIONAL OFFERINGS
In addition to the Terms, contests, games, sweepstakes, or other promotional offerings (collectively, "Promotions") made available through the Services may have specific rules that are different from these Use Terms. You may choose to receive mobile alerts by signing up or participating in a Promotion. If you do, you authorize us to use automated technology to send messages to the mobile phone number you provide when you sign up. By participating in a Promotion, you will become subject to those rules. Therefore, please review the Promotion’s applicable rules prior to participating in such Promotion. The Promotion rules will control over any conflict with these Use Terms, except that in all instances the arbitration agreement and class action waiver set forth in Section 13 below, will control and continue to apply.
6. MOBILE COMMUNICATIONS
6.1 If You use the Services, We may communicate with you via electronic messages, including email, text message/SMS, or mobile push notifications in accordance with our Privacy Policy. Message and data rates may apply, according to Your rate plan provided by Your wireless carrier. You are responsible for all mobile carrier data or text message charges resulting from Your use of the Services, including from any push notifications provided by the Services. We will not be responsible for any text messaging or other wireless charges incurred by You or by a person who has access to Your wireless device or telephone number.
6.2 You agree that We are not providing You with access to the Internet or mobile phone carrier access to use the Services, and that You remain responsible for Internet access. We do not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. We are not responsible for any non-delivery, misdelivery, or untimely delivery of any mobile messaging, or for Your deletion of or failure to store any mobile messaging from Us.
7. GROUP ACTIVITY AND PURCHASES
7.1 Individual App users may form and organize groups within the App for attending events, making purchases, exchanging messages, or otherwise participating in activities or using the Services (each of these, a “Group Member” and collectively, the “Group”). The organizer of a Group (the “Organizer”) must be eighteen (18) years old or older and the parent or legal guardian of any Group Member under the age of thirteen (13). When a Group Member leaves or is removed from a Group, the remaining Group Members may no longer be able to access the former Group Member’s User Content.
7.2 If You are the Organizer of a Group, You will be required to set up a valid Group payment method for your Group Members to use for making purchases through the Services, subject to any purchase limits as detailed in Section 7.4. You will be responsible for all of Your Group Members’ purchases via the Group payment method. If You delete the Group, or a Group Member leaves or is removed from the Group, You may be charged for pending purchases made by such Group Members using the Group payment method.
7.3 MyTabs and the Listing Members use third party payment services providers to store Your payment card information and process your payments to Listing Members and third parties. You understand and agree that, when you register a payment card, We or Our third-party payment services providers may verify that the payment card You registered is valid, including by authorizing a low-value, temporary charge. You are able to update Your saved payment information (for example, if your card has been re-issued with a new account number and/or expiration date). Alternatively, We and Our third party payment services providers may obtain updated payment method information from your bank or financial services institution, provided you have authorized your bank or financial services institution to provide such updated information. You also understand and agree that when You use the App to make a purchase from a Listing Member, the Listing Member will be the merchant of record. Listing Members may require additional information other than your payment card information to verify Your purchase. You represent and warrant that You are of sufficient age and have all legal rights to use all payment methods that You register.
7.4 To discourage unfair event ticket purchasing practices, the Listing Member may restrict the purchase of tickets via the Services to a specified quantity. Each Account must be linked to a unique individual, and must contain valid and verifiable information. Neither Groups nor multiple Accounts may be created or used to circumvent or exceed a Listing Member’s published ticket limits. If You exceed or attempt to exceed the Listing Member’s published ticket limits, we reserve the right to cancel, without notice, any or all orders or tickets, in addition to blocking your ability to purchase tickets. If We cancel an order placed by You for violating the restrictions in this Section 7.4, the canceled ticket(s) may be refunded at face value (excluding applicable fees). We will not be liable to You or anyone else if the Listing Member declines the issuance of a refund for canceled tickets due to Your violation of this Section 7.4.
7.5 Should an event be canceled, postponed, rescheduled, or moved, and the Listing Member approves the refunding of the tickets for such canceled, postponed, rescheduled, or moved event, only the original purchaser will be eligible for any available credits or refunds from the Listing Member. MyTabs will not be liable for any travel or other expenses that You, Your Group, a Group Member, or anyone else incurs in connection with a cancelled, postponed, rescheduled, or moved event.
8. DATA PRIVACY; DATA SECURITY
8.1 We will maintain and enforce reasonable technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to Your User Content that are at least equal to industry standards for applications similar to the MyTabs App.
8.2 With respect to all Personal Data provided to Us by or through You, You will be responsible as the sole data controller for complying with all applicable laws that regulate the processing of Personal Data, including special categories of data. “Personal Data” means any information that can be used to identify a specific individual, such a name, email address, home address or phone number that is provided, uploaded, or transferred to Us to store, process, or transfer on Your behalf. You agree to obtain all legally required consents, authorizations and approvals and make all necessary disclosures before (a) including any Personal Data in User Content and (b) using the Services. You confirm and acknowledge that You are solely responsible for any Personal Data that may be contained in the User Content that You upload, including any information which any Group Member shares with third parties on Your behalf. You are solely responsible for determining the purposes and means of processing any Personal Data by Us under these Use Terms that is outside of Our normal data processing procedures, including that such processing according to Your instructions will not place Us in violation of applicable data protection laws.
8.3 We will only process Personal Data in a manner that is reasonably necessary to provide the Services to You, and only for that purpose. We will only process Personal Data in delivering the Services, and You agree that the description provided by Us is consistent with Your processing instructions. If You are required by applicable law to provide information about or access to Personal Data to any individual or to a relevant authority, We will reasonably cooperate with You in providing such information or access.
8.4 You acknowledge and agree that at the point of Your upload of User Data into the Services, We (a) do not control the transfer of data over telecommunications facilities, including the Internet, and (b) despite employing industry standard practices and safeguards to protect against the accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to data, We cannot commit to particular confidentiality obligations if You have accessed the Services in a public Internet environment or over an unsecured network.
8.5 You fully understand and that We cannot and do not guarantee or warrant that files available for download from the internet or will be free of viruses or other harmful code. You are responsible for implementing sufficient procedures, checkpoints, and security to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Services for any reconstruction of any lost data. Except as specifically provided in these Use Terms, We make no representations or warranties regarding any security functions. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT AND/OR MOBILE DEVICE, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY OUTPOUT OR ITEMS OBTAINED THROUGH THE SERVICES, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE APP OR THE MYTABS WEBSITE, OR ON ANY WEBSITE LINKED TO IT.
9. ARTIFICIAL INTELLIGENCE; DATA USE RIGHTS
9.1 Certain features in the Services use artificial intelligence ("AI"), including generative AI, to provide you with Services. We may engage with third-party entities or utilize third-party large language models in developing and providing these services. We process data You may input and any generated data for purposes of providing You with the Services, for product improvement, quality and troubleshooting purposes, and for other purposes in accordance with these Use Terms and Our Privacy Policy. When engaging with third-party entities, we do not permit such them to train their own models based on Personal Data or otherwise sensitive data provided to Us[, unless in exceptional circumstances, where the use case will undergo a robust internal review and approval process]. All information and Content generated by such AI tools are provided on an "as-is" and "as-available" basis. We make no representations of any kind concerning the accuracy, relevance or completeness of such Content and are not responsible for any damage or losses arising from Your use of or reliance on such Content.
9.2 You agree that We and Our Listing Members may collect and use technical data and related information—including but not limited to technical information about Your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Services. We, as well as the Listing Members, may use this information, as long as it is in a form that does not personally identify You, to improve Our products and service offerings, the Listing Member’s products and service offerings, or to provide other services or technologies to you.
10. WARRANTY DISCLAIMER
WE PROVIDE THE SERVICES TO YOU ON "AS IS" AND "AS AVAILABLE" BASIS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, INTERRUPTIONS, DELAYS, ERRORS, OR IMPERFECTIONS. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
FOR CALIFORNIA RESIDENTS ONLY: IN USING THE SERVICES, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
11. INDEMNIFICATION
You will, at Your sole expense, defend, indemnify, and Us, Our Listing Members, and Our respective directors, officers, employees, agents, successors and assigns (the “MyTabs Indemnified Parties”) harmless, from and against any damages, losses, and expenses of any kind (including reasonable legal fees and costs) due to action brought against the MyTabs Indemnified Parties or any of them to the extent that such action is based on a claim that the submitted User Content, information and/or materials, used by a MyTabs Indemnified Party within the scope of the representations and permissions given by You as evidenced in these Use Terms, by itself infringes, violates, or misappropriates any third-party copyright, patent, or other intellectual property right, privacy right, right of publicity, or data privacy right. In such case, You shall pay all costs and damages awarded against Us and/or the MyTabs Indemnified Party as a result of such claim.
12. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES
12.1 Listing Members are solely responsible for their interactions with You and any and all claims, injuries, illnesses, damages, liabilities, and costs suffered by You as a result of Your interaction with or visit to any Listing Member or from any promotion, offer, product or service of any Listing Member. You must resolve all disputes directly with the Listing Member. To the maximum extent permitted by applicable law, you hereby release the Us from any and all such claims.
12.2 THE ALLOCATION OF RISK BETWEEN US IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MYTABS. OUR AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OR THE USE OF THE SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THEM. THE LIMITED REMEDIES IN THIS SECTION 12.1 WILL APPLY EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
12.3 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MYTABS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, PROFIT OR FOR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR FOR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) ANY FAILURE OF ANOTHER USER OF THE SERVICES TO ADHERE TO THE USE RESTRICTIONS IN SECTION 2.4 ABOVE; (D) PERSONAL INJURY OR PROPERTY DATAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES; (D) ANY ERRORS, MISTAKES, INACCURACIES, OR OMISSIONS IN ANY CONTENT; (E) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (F) ANY BUGS, VIRUSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL OR DESTRUCTIVE ELEMENTS WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES; (G) COST OF REPLACEMENT GOODS OR SERVICES; (H) LOST, STOLEN, OR DAMAGE TICKETS, OR THE FAILURE OF A LISTING MEMBER OR VENUE TO HONOR A TICKET; (I) LOSS OF GOODWILL OR REPUTATION; OR (J) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
13.1 YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY DISPUTE, CLAIM, OR CONTROVERSY RELATING IN ANY WAY TO THE TERMS, YOUR USE OF THE SITE, OR PRODUCTS OR SERVICES SOLD, DISTRIBUTED, ISSUED, OR SERVICED BY OR THROUGH US—IRRESPECTIVE OF WHEN THAT DISPUTE, CLAIM, OR CONTROVERSY AROSE—WILL BE RESOLVED SOLELY BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH IN THE TERMS, RATHER THAN IN COURT. YOU AND WE THEREBY EACH AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, AND AGREE THAT YOU AND WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
13.2 The arbitration agreement and class action waiver set forth in this Section 13 shall be subject to the following limited exceptions:
(i) If a claim involves the conditional license(s) granted to You, either of Us may file suit in a federal or state court located within Harris County, Texas, and You and We both consent to the jurisdiction and venue of such courts for this purpose.
(ii) If the arbitration agreement set forth in this Section 13 is held unenforceable for any reason, any litigation against us may be brought only in a federal or state court located within Harris County, Texas, and You and We both consent to the jurisdiction and venue of such courts for this purpose.
13.3 You and We each retain the right to participate in a class-wide settlement of claims.
13.4 You are responsible for Your own attorneys’ fees; We will not pay any attorneys’ fees unless ordered to do so by the arbitrator. For clarity, in cases where a statute gives you the right to recover attorneys’ fees if You prevail, the arbitrator may award attorneys’ fees pursuant to that statute.
13.5 With the exception of suits for injunctive relief and the provisions of Section 13.2 above, any and all differences and disputes of whatsoever nature arising out of this Agreement shall be put to binding arbitration in the City of Houston, State of Texas, pursuant to the laws relating to arbitration there in force, before a single arbitrator. The selection of the arbitrator and the arbitration proceedings shall be conducted in accordance with the rules of the American Arbitration Association. Until such time as the arbitrator finally closes the hearings, either You or Us shall have the right by written notice served on the arbitrator and on an officer of the other party to specify further disputes or differences under these Use Terms for hearing and determination. The arbitrator may grant any relief which (s)he deems just and equitable and within the scope of these Use Terms, including, but not limited to, specific performance. Judgment may be entered upon any award made hereunder in any court having jurisdiction. You shall be required to notify Us within thirty (30) days of the commencement of any arbitration between You and third parties which may concern Our Services in connection with these Use Terms and shall afford Us an opportunity, at Our sole option, to participate in such arbitration.
13.6 The arbitrator shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of the contract evidenced by these Use Terms, including, but not limited to, any claim that all or any part of these Use Terms is void or voidable; however, in the event of a dispute about which particular version of these Terms you agreed to, a court will decide that specific question. This arbitration agreement is intended to be broadly interpreted and will survive termination of these Use Terms.
14. GOVERNING LAW
14.1 These Use Terms shall be governed by the laws of the State of Texas, notwithstanding any conflict of laws provisions that may call for the application of the law of any other jurisdiction. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods shall apply to these Use Terms.
14.2 YOU AND MYTABS EACH ACKNOWLEDGE AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT THAT IS NOT SUBJECT TO SECTION 13 COULD INVOLVE FACTUAL ISSUES WHICH WOULD BE RESOLVED MOST EFFICIENTLY BY A BENCH TRIAL, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15. FORCE MAJEURE
Under no circumstances will We be liable or responsible to You, or be deemed to have defaulted under or breached these Use Terms, for any failure or delay in fulfilling or performing any term of these Use Terms, when and to the extent such failure or delay is caused by any circumstances beyond Our reasonable control (each, a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Use Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or regulation or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
16. EXPORT CONTROLS; U.S. GOVERNMENT END USERS
16.1 You may not use, export, or re-export any Content or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not a citizen of or 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
16.2 The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any Content with only those rights set forth therein.
17. TERM AND TERMINATION
17.1 These Use Terms are effective until terminated by You or Us. Your rights under these Use Terms will terminate automatically if You fail to comply with the Use Terms. You agree that We shall not be liable to You for any termination of these Use Terms or for any effects of any termination of these Use Terms.
17.2 You may elect to terminate these Use Terms at any time by deleting the App and its data from Your device. In such case, you must cease all use of the App and the Content. You understand that any termination of your Account may involve deletion of any User Content stored in your Account for which We will have no liability whatsoever.
18. SPECIAL PROVISIONS FOR THE MOBILE APP
18.1 This Section 18 applies only if you access the Services through a mobile device running Apple’s iOS or Google’s Android operating systems. If you access the Services through a mobile application, the applicable terms for the platform from which you download the mobile application (“Platform Terms”), such as the Apple App Store or Google Play Store, may apply in addition to these terms and conditions.
18.2 These Use Terms incorporate and supplement the Apple, Inc. (“Apple”) terms and conditions, including the Licensed Application End User terms therein (“Apple Terms”). You also acknowledge and agree:
(i) Neither Apple nor Google has no obligation at all to provide any support or maintenance services and neither are responsible for the content in the mobile application. If you have any maintenance or support questions in relation to the mobile application, or any concerns regarding content in the mobile application, please contact Us or Google, not Apple;
(ii) Neither Google nor Apple have any responsibility for Content within the App. If you have any concerns regarding Content in the App, please contact Us as described within these Use Terms;
(iii) Except as otherwise expressly set out in these Use Terms, any claims relating to the possession or use of the App are between you and US; neither Google nor Apple shall be a party; and
(iv) Neither Apple nor Google will be responsible or liable to You with respect to any third party claim, or the investigation, defense, settlement and discharge thereof: (1) that Your possession or use (in accordance with these Use Terms) of the App infringes, violates, or misappropriates any intellectual property rights; (2) relating to any product warranties other than in the Platform Terms, whether express or implied; (3) product liability claims; (4) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (5) claims arising under consumer protection or similar legislation.
18.3 If the App that you have purchased does not conform to any warranty applying to it, you may notify Apple or Google, which may refund the purchase price of the mobile application to you subject to then-current Platform Terms. Subject to that, and to the maximum extent permitted by law, neither Apple nor Google give or enter into any warranty, condition or other term in relation to the mobile application and will not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the mobile application or as a result of you or anyone else using the App or relying on any of its content. Apple and Google shall be intended third-party beneficiaries of this Section 18.
19. NOTICES AND COMMUNICATIONS
We may notify you with respect to the Services by sending You an email message to Your email address or a letter via postal mail to Your mailing address, or by a posting on the Services. Notices from Us shall become effective immediately. We may also contact You by email or push notification to send You additional information about the Services. You may send Us communications by emailing Us at tabs@mytabs.app . Notices sent to Us by email shall be effective as of the timestamp showing confirmation of transmission.
20. GENERAL PROVISIONS
20.1 Entire Agreement. These User Terms supersede all prior representations, arrangements and understandings between You and Us relating to the subject matter hereof and except as expressly provided herein is intended by MyTabs and You to be a complete and conclusive statement of the terms and conditions of this agreement.
20.2 Amendment. No amendment to these Use Terms will be effective or binding upon You or Us unless set forth in writing and duly executed by each of MyTabs and You.
20.3 Non-Waiver. The waiver or failure of either You or Us to exercise in any respect any right provided for in these Use Terms shall not be deemed a waiver of any further right hereunder.
20.4 Headings. Captions and headings are used in these Use Terms for convenience only and shall have no effect on the construction and/or interpretation of the contents of the respective provision.
20.5 Assignment. Any attempt by You to sell, sublicense, assign or transfer any of Your rights, duties, or obligations under these Use Terms, in whole or in part, shall be void and of no effect. All rights and obligations of MyTabs under this Agreement may be exercised by Us or any of Our successors or assigns, including but not limited to any agents, distributors, or subcontractors, as may be appointed at Our discretion. Furthermore, all releases or other benefits in Our favor shall apply to such successors or assigns, where applicable.
20.6 Severability. If any provision of this Agreement is held to be invalid, void, ineffective, unenforceable and/or illegal, such will not affect the validity and/or enforceability of the remaining provisions of this Agreement.