Terms of Service
Summary of Material Items
As provided in greater detail in the Terms (and without limiting the express language of these Terms), you acknowledge the following:
- the App is licensed, not sold to you, and that you may use the App only as set forth in these Terms;
- the use of the App may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the App is provided “as is” without warranties of any kind and MyDomino’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration. By accepting these Terms, as provided in greater detail in Section 25 of these Terms, you and MyDomino are each waiving the right to a trial by jury or to participate in a class action;
- the App may require access to the other services on your mobile device; and
- if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below.
MyDomino Service Overview
The Service provides a place where homeowners, renters, and others (“Consumers”) can access information about photovoltaic solar products, renewable energy products, electric vehicles, smart thermostats, heat pumps, and other low carbon lifestyle products (“Products”) and receive information about, and requests quotes from, third parties who install Products (“Installers”). Consumers may also be provided with a means to purchase products, installation and other related services via the Service. The Service also provides a portal where, following registration, Installers can be notified that a Consumer has requested a quote and receive the necessary information to deliver quotes and services.
THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company (each, a “Subscribing Entity”), you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
MyDomino may make future services available that will increase the functionality of the Service. Additional terms and conditions related to any additional functionality will be provided in accordance with Section 14 of these Terms.
Scope of License to Users
License Grant to You
The Service is licensed, not sold, to you for use only under the terms of these Terms. Subject to your complete and ongoing compliance with the terms and conditions of these Terms, MyDomino hereby grants you a personal, limited, revocable, non-transferable license to (i) use the App on compatible, authorized devices that you own or control and (ii) access and use the Site, in both instances solely for your own use or for the Subscribing Entity on whose behalf you are authorized to act.
You may not modify, alter, reproduce, or distribute the App. You may not directly rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in these Terms, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
Applicability to Updates
The terms of these Terms will govern any updates provided to you by MyDomino that replace and/or supplement the App, unless such upgrade is accompanied by a separate license or revised Terms, in which case the terms of that license or revised Terms will govern.
When a Consumer requests a quote from one or more Installers, or purchases any product or service, Consumer will be required to submit certain information to the Service and MyDomino will provide certain Consumer information to the Installers selected by the Consumer. Such information includes, but is not necessarily limited to, the Consumer’s name, phone number and email address. It may also include a utility bill if applicable. Installers may request additional information from Consumers prior to completing a quote. You consent to the provision of such information to Installers.
Installers and other third party merchants are independent third party contractors and are not MyDomino employees, subsidiaries or agents. All contracts for installation are solely between the Installer or such other third party merchant and the Consumer, and MyDomino makes no representation, warranty or guarantee, and hereby disclaim any and all representations, warranties and guaranties, with respect to the products or services provided by an Installer or a third party merchant. Consumers are advised to research any Installer or third party merchant prior to entering into any contract.
Consumer Payment Terms
Consumer shall pay all amounts agreed to by Consumer during the checkout process in the Service. Prices and availability are subject to change without notice. Errors will be corrected where discovered, and MyDomino reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and Consumer’s credit card charged. If Consumer’s credit card has already been charged for the purchase and the applicable order is cancelled, MyDomino will issue a credit to the credit card account used for the purchase in the amount of the charge. Individual bank policies will dictate when this amount is credited to the account.
Terms Applicable to Installers
Installers will be provided with credentials enabling them to access and use the Installer portal portion of the Service where information about Consumers requesting quotes and other information from MyDomino will be provided.
Installer will bear the entire cost, taxes, and expense of conducting its business in accordance with these Terms.
PV Solar Report
If Installer is also a subscriber of the PV Solar Report published by MyDomino, Installer agrees to comply with the terms and conditions applicable thereto, which can be found at http://www.pvsolarreport.com/terms/.
If Installer wishes to use MyDomino’s data export services (the “Data Service”), to obtain data regarding sales of Products among various demographics (“Product Data”), then Installer can register and opt-in for the service. MyDomino hereby grants Installer a limited, non-exclusive, non-transferrable royalty-free right and license to access and use the Data Service to obtain such Product Data. Installers may use Product Data only for internal purposes of one-time research, verification, or direct marketing and may not reproduce or distribute any Product Data to any third parties without MyDomino’s prior written consent.
Installer will (a) not engage in any deceptive, misleading, illegal or unethical practices, (b) not make any representations or warranties with respect to Products except as set forth in printed marketing collateral or documentation furnished by the applicable manufacturer, (c) not use the Service in any way that would cause the Service or Product Data to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. or similar statute, or for any purpose relating to eligibility for credit, employment, license or other benefit granted by a governmental authority, or in connection with underwriting individual insurance, (d) not use the Service to create, develop, enhance or structure any database, or create models, analytics, derivative products or other derivative works for resale or external distribution, (e) not disassemble, decompile or reverse engineer any portion of the Data Services or Service, (f) not export, re-export, use, or store, directly or indirectly, any information related to the Service outside of the United States, (g) conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of MyDomino; and (h) comply with all applicable federal, state, and local laws and regulations. Installer will indemnify and defend MyDomino from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that MyDomino may incur as the result of any action brought against MyDomino and arising out of the acts of Installer or its agents in breach of these Terms.
Notwithstanding anything to the contrary, without MyDomino’s prior written approval, Installer shall not provide the Service to the following entities, their affiliates or subsidiaries, nor their successors in interest: Acxiom, America Online, Inc. (AOL), CBCInnovis, CD-Data, Choice Point, Costar Group, Data Solutions, DataWarehouse, Data Verify, Digital Risk, Experian, Equifax, Fair Isaac Corporation, Fidelity National Financial (FNF), Fidelity National Information Services (FNIS), Fidelity National Insurance Company, Fidelity National Title Group, First Data Solutions, FiServ, FNC, Google, Haines, InfoUSA, Insurance Service Office (ISO), International Data Management (IDM), Interthinx, iPlace, ISGN, Land America, Lender Processing Services, Lending Tree, Lexis/Nexis, MacDonald-Detweiler, MasterFiles, Merlin Data, Microsoft, Myriad Development, National Data Cooperative, National Information Services, New Reach, Real Net, RJ Peters, Sedgwick CMS, Stewart Information Services Corporation, SW Financial, TPG Capital, Thompson-West Group, TransUnion, Veros, Yahoo!, and Zillow. Installer shall not sell the Service to the top twenty mortgage originating and or servicing lender institutions, as listed in the National Mortgage News or other similar Thomson Media publication, without MyDomino’s prior written approval. Installer agrees that solicitation or ad copy prepared in connection with the Service shall be devoid of any references to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address. MyDomino reserves the right to audit the process for reviewing such solicitations and ad copy along with the actual solicitation and ad copy.
Installers agree to pay to MyDomino a vendor referral fee (“VRF”) in accordance to the Vendor Referral Fee Agreement (“VRF Agreement”) signed with each Installer or in accordance with terms of the Installers’ referral fee program. Installers will provide MyDomino with a valid credit card upon registration, and authorize MyDomino to charge all sums described in the VRF Agreement to such credit card. Installer’s account will be suspended if any charge is denied or charged back. MyDomino may seek pre-authorization of such credit card account to verify that the credit card is valid and has the necessary funds or credit available to cover the applicable fees. MyDomino may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time. Additional products and services may be offered by the Service in the future, for which additional fees may be charged. Notice of such additional fees will be provided in accordance with Section 14 of these Terms, and use of such additional products or services following notice of such fees shall be deemed acceptance of, and agreement to pay, any changed or additional fee.
User Content Generally
Certain features of the Service may permit users to post content, including messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
Limited License Grant to MyDomino
By posting or publishing User Content, you grant MyDomino a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by MyDomino may be without any compensation paid to you.
Limited License Grant to Other Users
By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize MyDomino and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 9 and in the manner contemplated by MyDomino and these Terms; and
- your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
User Content Disclaimer
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. MyDomino may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MyDomino with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, MyDomino does not permit copyright-infringing activities on the Service.
Digital Millenium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. S512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
344 20th Street, Suite 220
Oakland, CA 94612
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- 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
- 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.
MyDomino will promptly terminate without notice the accounts of users that are determined by MyDomino to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose, to advertise, sell, or exchange any products or services relating to illicit or illegal activities, in any way that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
- use the Service outside of the United States;
- use the Service, without MyDomino’s express written consent, to communicate or facilitate any commercial advertisement or solicitation, except as expressly permitted in these Terms;
- restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users;
- use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Materials (as defined in Section 16) available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent MyDomino makes available the means for embedding any part of the Service or Materials;
- create a new account with MyDomino, without MyDomino’s express written consent, if MyDomino has previously disabled an account of yours;
- access, tamper with, or use non-public areas of the Service, MyDomino’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of MyDomino’s providers;
- sell, relicense, or redistribute the Service in whole or in part;
- sell or otherwise transfer the access granted herein or any Materials or any right or ability to view, access, or use any Materials (including by altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; or using any trademarks, service marks, design marks, logos, photographs or other content belonging to MyDomino or obtained from the Service); or
- attempt to do any of the foregoing in this Section 11, or assist or permit any persons in engaging in any of the activities described in this Section 11.
Third-Party Services and Linked Websites
MyDomino may provide tools through the Service that enable you to export information, including User Content, to third party service, including through features that allow you to link your account on MyDomino with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons) (“Third Party Services”). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
Availability of the Service
The availability of the Service may vary substantially from area-to-area, and circumstances may exist or arise that prevent MyDomino from providing all or a portion of the Service. In addition, the Service may experience downtime due to regularly scheduled or emergency maintenance by MyDomino or its service providers.
Termination of Use
Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, MyDomino, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such the modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.
Ownership; Proprietary Rights
The Service is owned and operated by MyDomino. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service, including Product Data and the Data Service, (collectively, the “Materials”) provided by MyDomino are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of MyDomino or our third-party licensors. Except as expressly authorized by MyDomino, you may not make use of the Materials. MyDomino reserves all rights to the Materials not granted expressly in these Terms.
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless MyDomino and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “MyDomino Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any other user or third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE MYDOMINO ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (I) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE MYDOMINO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MYDOMINO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE MYDOMINO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE MYDOMINO ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MYDOMINO ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE PAID TO MYDOMINO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (II) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Software
If you are using the App, the software you download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail in Section 29. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in these Terms is intended to impose further restrictions on your use of the Third Party Software.
Consent to Use of Data
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending MyDomino or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to MyDomino, you agree that:
- MyDomino has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and MyDomino is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant MyDomino and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
These Terms 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 MyDomino 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 Materials included in the Service are appropriate or available for use in other locations.
In the interest of resolving disputes between you and MyDomino in the most expedient and cost effective manner, you and MyDomino agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. 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 Terms, 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 Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MyDomino ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding subsection 25.1, 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 in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and MyDomino 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 Terms, 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 MyDomino.
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”). MyDomino’s address for Notice is: MyDomino Inc. 344 20th Street, Suite 220, Oakland, CA 94612. 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 MyDomino may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MyDomino 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, MyDomino shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by MyDomino in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
In the event that you commence arbitration in accordance with these Terms, MyDomino 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 MyDomino 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.
No Class Actions
YOU AND MYDOMINO 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 MyDomino 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.
In the event that MyDomino makes any future change to this arbitration provision (other than a change to MyDomino’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to MyDomino’s address for Notice, in which case your account with MyDomino shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
If Subsection 25.6 is found to be unenforceable or if the entirety of this Section 25 is found to be unenforceable, then the entirety of this Section 25 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 23 shall govern any action arising out of or related to these Terms.
Third Party Disputes
MYDOMINO IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE MYDOMINO (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Consent to Electronic Communications
The services hereunder are offered by MyDomino Inc., located at 344 20th Street, Suite 220, Oakland, CA 94612. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
Terms of Third Party Software
NOTICE REGARDING APPLE. You acknowledge that the EULA is between you and MyDomino only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and 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 App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App 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 App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and upon your acceptance of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary of the EULA. 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. If MyDomino provides a translation of the English language version of these Terms, then the translation is provided solely for convenience, and the English version shall prevail.