Last Updated: January 1, 2023
Without limiting the foregoing, by accessing and using the Website, you specifically acknowledge and agree as follows:
- YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE DISPUTE RESOLUTION PROVISIONS, WHICH PROVIDE FOR THE RESOLUTION OF MOST DISPUTES THROUGH THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND ALSO INCLUDE CERTAIN WAIVERS, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION AND CLASS ARBITRATION WAIVERS.
License and Conditions
Flash Mobile grants you a limited, royalty-free, non-exclusive license to access and make use of the Website. As a condition of such license, you acknowledge and agree that:
- you will not download (except as required to access and make use of the Website), reproduce, modify, copy, resell, or use for any commercial or non-commercial purpose any (i) Intellectual Property; (ii) service listings, descriptions, or price lists; or (iii) other content appearing on the Website;
- you will not reproduce or store any part of the Website or its content in or on another website;
- if you are an Independent Business Owner (IBO), you will use the Website in compliance with your IBO Agreement; and
- you will not alter the Website or any of its content.
If you provide Flash Mobile with any comments, suggestions, recommendations, requests, or any other feedback (“Feedback”), Flash Mobile may use such feedback to improve the Website or for any other purpose. Furthermore, Flash Mobile shall own such Feedback and Flash Mobile and its affiliates, licensees, clients, partners, third-party providers and other authorized entitled may use, license, distribute, reproduce, and commercialize the Feedback, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to Flash Mobile.
Visitor Material and Conduct
You may not post on, or transmit to or from the Website, any material that:
- is threatening or abusive, defamatory or scandalous, obscene or pornographic, seditious, liable to incite hatred, discriminatory, blasphemous, in breach of confidence or privacy, or otherwise illegal or inappropriate;
- you do not have the legal right to use;
- constitutes or encourages conduct that would constitute a criminal or civil offense or give rise to criminal or civil liability; or
- could harm the Website or Flash Mobile’s network or systems (such as computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, or other malicious software or harmful data).
Links to and from Other Websites
You may link to the Website subject to the following conditions:
- You do not replicate any page of the Website; /li>
- You do not use, alter, copy, or remove any Intellectual Property;
- You do not state or imply that Flash Mobile endorses any services other than its own;
- You do not present incorrect information about Flash Mobile;
- If you are an IBO, you adhere to the requirements of your IBO Agreement.
Disclaimer of Warranties and Limitation of Liability
Flash Mobile seeks to make the Website available 24 hours a day and to ensure that the information on the Website is accurate and updated; however, Flash Mobile is not responsible for the availability of the Website and shall not be liable if the Website is unavailable at any time or for any period, or if the information on the Website is incorrect, incomplete, or outdated. Access to the Website may be suspended without notice. Flash Mobile may make changes to the content of the Website at any time without notice.
Change in Terms
Dispute Resolution by Binding Arbitration
PLEASE READ THE FOLLOWING DISPUTE RESOLUTION PROVISIONS CAREFULLY, AS THESE PROVISIONS PROVIDE FOR THE RESOLUTION OF MOST DISPUTES THROUGH THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND ALSO INCLUDE CERTAIN WAIVERS, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION AND CLASS ARBITRATION WAIVERS.
A. Dispute Resolution Generally
- a. All Disputes (in any case, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory), to the extent not prohibited by applicable law, shall be resolved by final and binding arbitration, pursuant to the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”) (available at the following address: https://www.adr.org/sites/default/files/Commercial%20Rules.pdf) or other applicable AAA rules, as in effect at the time of the arbitration and as modified herein. You may contact the AAA in writing at one of its locations (i.e., SouthPark Towers, 6000 Fairview Rd., Suite 1200, Charlotte, NC 28210). You may also obtain additional information about the AAA and its procedures from the AAA’s website, at www.adr.org. The arbitrator(s), not a court, will determine issues of arbitrability or waiver of arbitrability, and you waive any right to have a court determine issues of arbitrability. Notwithstanding the foregoing in this subsection 8(B)(a), either you or Flash Mobile may bring an individual action against the other party in small claims court (or comparable court of competent jurisdiction) so long as the only parties to that action are you and Flash Mobile and the total value of the claims made in the action is less than the claim limit applicable in the jurisdiction in which the claim is filed. Following the contact required in Section 8(A) above and prior to commencing an arbitration proceeding with the AAA, a party seeking to arbitrate any Dispute must send to the other party, via certified mail, a written Notice of Dispute (“Notice”). The Notice to you must be sent by Flash Mobile to the physical address provided in your initial contact pursuant to Section 8(A) above or, if you failed to provide a physical address, then you agree to accept Notice via email. The Notice to Flash Mobile must be addressed to ACN Communication Services, LLC, Attn: Legal Department, 1000 Progress Place, Concord, NC 28025. The Notice must (i) describe the nature and basis of the claim or Dispute; and (ii) describe the specific relief sought. You and Flash Mobile each expressly agree to attempt to resolve any Dispute by first sending (or making reasonable efforts to send) the Notice to the other party prior to initiating or commencing an arbitration proceeding with the AAA.
- b. If a Dispute is not satisfactorily resolved within sixty (60) days after the Notice is sent, either party may then commence an arbitration proceeding with the AAA.
- c. If the amount involved in the Dispute is less than $20,000, the arbitration will be conducted, at your election, (i) in person in the jurisdiction in which your primary residence is located, or (ii) by telephonic hearing. If the amount in the Dispute is $20,000 or more, the arbitration will be conducted in Charlotte, North Carolina. Each of you and Flash Mobile has the right to be represented by an attorney in any arbitration.
- d. The number of arbitrators shall be mutually agreed upon by the parties; provided, however, that in event the parties cannot agree on the number of arbitrators, the AAA Rules will control. In all cases, the award of the arbitrator(s) shall be accompanied by a reasoned opinion. Punitive or exemplary damages shall be allowed only to the extent that the remedy is expressly available under Applicable Law. Discovery shall consist of interrogatories, document requests, and no more than five depositions of seven hours or less each, per side; provided, however, that the arbitrator(s) may award additional discovery upon motion by either party and a showing of need and/or the inability to pursue or defend claims absent additional discovery.
- e. The party initiating the arbitration must pay the applicable AAA filing fee when submitting its written request for arbitration to the AAA. Unless otherwise provided for in the AAA Rules, all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator, will be divided equally between the parties.
- f. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys’ fees and expenses for witnesses, document production, and evidence presentation. The arbitrator(s) shall have the authority to award the same damages and other relief that would have been available to the parties as individual claimants in court.
- g. Any award may be confirmed and enforced in any court of competent jurisdiction. The arbitration will be confidential, and neither you nor Flash Mobile may disclose the existence, content, or results of the arbitration, except as necessary to conduct the proceedings, to confirm and enforce the award, to its own legal or financial advisors, by agreement, or as may be required by Applicable Law.
C. CLASS ARBITRATION WAIVER
EACH DISPUTE WILL BE RESOLVED ON AN INDIVIDUAL BASIS. EACH OF YOU AND FLASH MOBILE SPECIFICALLY AGREE THAT YOU MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR GROUP PROCEEDING. NO CLASS, COLLECTIVE, REPRESENTATIVE, OR GROUP ARBITRATIONS ARE PERMITTED EVEN IF ALLOWED UNDER THE APPLICABLE AAA RULES. EACH PARTY AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, COLLECTIVE, REPRESENTATIVE, OR GROUP PROCEEDING (“CLASS ARBITRATION WAIVER”). EACH OF YOU AND FLASH MOBILE ACKNOWLEDGE THAT THE CLASS ARBITRATION WAIVER IS MATERIAL AND ESSENTIAL TO THE RESOLUTION OF ANY DISPUTE. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, SUCH THAT CLASS, COLLECTIVE, REPRESENTATIVE, OR GROUP ARBITRATION IS ALLOWED, THEN THE ENTIRETY OF SECTIONS 8(B) ABOVE AND 8(F) BELOW (BUT ONLY SECTIONS 8(B) ABOVE AND 8(F) BELOW) SHALL BE NULL AND VOID, AND IF A PARTY CHOOSES TO PROCEED WITH ITS CLAIM IT MUST DO SO IN COURT PURSUANT TO SECTIONS 8(D) AND 8(E) AND ARTICLE 9 BELOW. NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THESE DISPUTE RESOLUTION PROVISIONS, THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, AND VALIDITY OF THE CLASS ARBITRATION WAIVER AND ANY ATTENDANT QUESTION OR DISPUTE REGARDING THE VOIDANCE OF THE ARBITRATION PROVISIONS SET FORTH IN SECTION 8(B) ABOVE, SHALL IN EACH CASE BE DECIDED ONLY BY A COURT AND NOT BY AN ARBITRATOR.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THESE DISPUTE RESOLUTION PROVISIONS TO THE CONTRARY, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS, COLLECTIVE, REPRESENTATIVE, GROUP, OR APPLICABLE PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY, OR PRAYERS FOR RELIEF, MAY BE MAINTAINED IN ANY ARBITRATION HELD PURSUANT TO THESE DISPUTE RESOLUTION PROVISIONS.
D. CLASS ACTION WAIVER
IN THE EVENT ANY DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, FOR ANY REASON, EACH OF YOU AND FLASH MOBILE AGREE THAT SUCH DISPUTE WILL ONLY BE RESOLVED ON AN INDIVIDUAL BASIS. EACH OF YOU AND FLASH MOBILE SPECIFICALLY AGREE THAT YOU MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR GROUP PROCEEDING.
E. JURY TRIAL WAIVER
TO THE EXTENT ANY DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, FOR ANY REASON, IF NOT PROHIBITED BY APPLICABLE LAW, EACH OF YOU AND FLASH MOBILE HEREBY WAIVE ANY RIGHT TO A JURY TRIAL TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
F. Delegation to Arbitrator
Except as provided in Section 8(C) above, you and Flash Mobile acknowledge and agree that the arbitrator(s), and not any federal, state, or local court, shall have exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or validity of these Dispute Resolution Provisions, including without limitation any claim that these Dispute Resolution Provisions are void or voidable.
If any provision contained in these Dispute Resolution Provisions is deemed invalid or unenforceable, such provision shall be modified automatically to the minimum extent necessary to render the parties’ agreement to arbitrate valid and enforceable. If a provision conflicts with a mandatory provision of applicable law, the conflicting provision shall be severed automatically, and the remainder construed to incorporate the mandatory provision. In the event of such severance or modification, the remainder shall not be affected.
H. Termination and Survival
These Dispute Resolution Provisions shall remain in effect even after the expiration or termination of your use of the Website.
Governing Law and Jurisdiction
Waiver and Severability
Statement on Accessibility
Flash Mobile is committed to making its website usable by all people, including those with disabilities, by meeting or exceeding the requirements of the Web Content Accessibility Guidelines 2.0 Level A/AA (WCAG 2.0 A/AA). We regularly monitor our Website in an effort to make our content accessible to all visitors. Monitoring the accessibility of our Website is an ongoing process as we continually make improvements and enhancements to the Website. While you are visiting our Site(s), you will notice that we offer links to third-party sites and Flash Mobile does not control or remedy the way content is portrayed on those third-party sites.
In case of any questions, please contact us by emailing at email@example.com or writing to us at 1000 Progress Place, Concord, NC 28025; Attention: Legal Department.
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