Canadian Terms & Conditions
Last Updated: July 30, 2020
Welcome to the Mobee mobile application (the “App”) and a number of related services and associated websites (collectively, the “Service” or the “Services”) operated by WISER SOLUTIONS (“Mobee,” “we,” “us,” or “our”).
Our Service enables our retail customers (“Mobee Customers”) to deploy Mobee’s network of geographically distributed users (the “Mobee Users”) to collect and verify data requested by Mobee Customers as part of what we define below as “Missions”. In return for completing Missions, Mobee Users are provided with reward points (“Reward Points”), which they can then redeem for gift cards from participating retailers.
This Agreement does not apply to any individual using the Services in his or her capacity as an employee, agent or representative of a Mobee Customer.
Please carefully review the following terms and conditions (this “Agreement”). This Agreement is an electronic contract that sets out the legally binding terms of relationship between Mobee and you. THESE TERMS WILL GOVERN YOUR USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT, USING THE SERVICES AND COMPLETING MISSIONS, YOU ARE AGREEING TO THESE TERMS.
Mobee reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Services or by notifying Mobee Users directly. You are responsible for regularly reviewing this Agreement. Continued use of the Services and/or the Mobee Mobile Application after any such changes are made to this Agreement shall constitute your consent to such changes. Mobee does not and will not assume any obligation to notify Mobee Users of any changes to this Agreement, or the creation or modification of any additional terms.
Use of the Services is permitted only by individuals who can form legally binding contracts under applicable Law. Without limiting the foregoing, you must have reached the age of majority in your jurisdiction of residence to become a Mobee User. If you do not qualify, please do not submit an application to become a Mobee User.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
means the deliverables specified in a Mission for delivery by a Mobee User to Mobee for provision to a Mobee Customer, including but not limited to surveys, digital photographs, opinions, summary conversations, and any other data a Mobee Customer may request the Mobee User attain for them.
means a notice of a Mission provided by Mobee to one or more Mobee Users displayed on the user’s device, which includes a description of the services to be provided by the Mobee Users and the associated Deliverables (the “Mission”), the date by which the Mission must be completed (the “Mission Completion Date”) and the Reward Points associated with the Mission. Once a Mobee User has accepted a “Mission Request” (defined as the opportunity of a Mission within the app) pursuant to Section 2, the Mission Request will become a "Mission Engagement".
1.3 “Mobee Mobile Application”
means the mobile application provided by Mobee to you under a separate license Agreement through which you can view, accept or reject Missions and provide Deliverables in connection with the Service.
For any Mission Engagement, you agree to use your best efforts to perform the Mission such that the Deliverables are satisfactory to us and the Mobee Customers. By accepting a Mission request, you are entering into a binding legal agreement with Mobee to provide the Deliverables for the Reward Points specified in the Mission request. Do not accept a Mission request unless you are sure that you understand what you are being asked to deliver.
In order to accept Missions, you may be required to become a Registered User. For purposes of these Terms, a "Registered User" is a User who has registered an account on the Service ("Account") or has a valid account on the social networking service ("SNS") through which the User has connected to the Services (each such account, a "Third Party Account"). If you access the Service through an SNS as part of the functionality of the Service, you may link your Account with Third Party Accounts by allowing us to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to grant Mobee access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Mobee to pay any fees or making Mobee subject to any usage limitations imposed by such third party service providers. By granting Mobee access to any Third Party Accounts, you understand that Mobee will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account ("SNS Content") so that it is available on and through the Service via your Account. Please note that if a Third Party Account or associated service becomes unavailable or Mobee’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the "Settings" section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Mobee makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Mobee is not responsible for any SNS Content.
Activities Under your Account - You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to: (1) notify us immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
Necessary Equipment and Software - You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the Mobee Mobile Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
We do not represent or endorse, and shall not be responsible for: (a) the safety, quality, accuracy, reliability, integrity or legality of any Mission, the truth or accuracy of the description of any Mission, any other third party website referenced or described by or accessible through the Service, or any Mobee Customer or other third party advice, opinion, offer, proposal, statement, data or other information (collectively, “Content”) displayed through the Services; or (b) your ability or inability to obtain any Reward(s) through Missions. We reserve the right (but shall have no obligation) to remove any or all Missions or other Content at any time. Reward Points, availability and location are all subject to change at any time. You may not reserve a Mission. A Mission may become unavailable or drop in Reward Points while you are travelling to the location of the Mission.
You agree to release us and our agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising out of or in any way connected with your dispute with any Mobee Customer, in connection with the Mobee Mobile Application. You agree that you will not involve us in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement with any Mobee Customer.
3. Reward Points and Payment
Mobee shall provide the Reward Points (or “Rewards”) for each completed Mission within fifteen (15) days after the Mobee Customer’s acceptance of the Deliverables associated with the Mission. Reward Points do not correspond to any specific monetary value but may be accumulated and redeemed for gift cards issued by third parties though the mobile application. Where permitted by law, Mobee may deduct any payment processing fees it incurs from the amount of the gift card. You will not earn Rewards Points for a Mission if Mobee rejects the Mission or if you otherwise breach this Agreement. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Missions or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you and/or provide certain information to government authorities. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Reward Points and/or suspend your account until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information. Mobee is not involved in, and has no responsibility for, the redemption of Reward Points. Each Mobee User is responsible for redeeming the Reward Points in exchange for the retail gift cards. Mobee, in its sole discretion reserves the right to set expiration timeframes on unredeemed Reward Points, where permitted by law. Unredeemed Reward Points are not transferrable. Mobee may award additional bonus points to you for a variety of reasons associated with activities in the app. These additional points are added solely based on Mobee’s discretion and point amounts can vary.
4. Independent Contractor Relationship
You are, and at all times shall be, an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Mobee and you or between the Mobee Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Mobee that is inconsistent with your being an independent contractor (and not an employee) of Mobee. You shall accept any directions issued by Mobee pertaining to the Missions to be attained and the results to be achieved by you, but you shall be solely responsible for the manner and hours in which services are performed under this Agreement. You are not the agent of Mobee or the Mobee Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of Mobee or the Mobee Customer. You acknowledge and agree that you are obligated to report as income all compensation received by you pursuant to this Agreement, and you agree to and acknowledge the obligation to pay all taxes, including without limitation all federal and state income tax, social security taxes and unemployment, disability insurance and workers’ compensation applicable to you and any person who performs services in connection with this Agreement, and that you will not be eligible for any employee benefits (nor do you desire any of them) and expressly waive any entitlement to such benefits. Without limiting the generality of the foregoing:
4.1 Benefits and Contributions.
You are not entitled to or eligible for any benefits that Mobee may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Mobee will not withhold or make payments for social security or payroll taxes of any kind, make unemployment insurance, employment insurance, pension plan or disability insurance contributions, or obtain workers’ compensation insurance on your behalf, nor you will be entitled to any of the foregoing. If, notwithstanding the foregoing, you are reclassified as an employee of Mobee, or any affiliate of Mobee, by the U.S. Internal Revenue Service, the U.S. Department of Labor, the Canada Revenue Agency or any other federal, state/provincial/territorial or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Mobee. In addition, you waive any and all rights, if any, to participation in any of the fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by Mobee to its employees.
4.3 Compliance with Law.
You will comply with all applicable federal, state/provincial/territorial, local, and foreign laws governing self-employed individuals, including laws requiring registration for and the payment of taxes, such as income and employment taxes, and social security (including workers’ compensation), disability and other premiums or contributions. You will provide evidence satisfactory to Mobee of such registrations and/or payments upon request by Mobee.
Mobee does not conduct Missions in the State of Nevada. Any use of this application in the State of Nevada is a violation of the Mobee User Agreement and the laws of the State of Nevada.
You agree that you will use the Service and Mobee Mobile Application to provide the Deliverables for each Mission to Mobee as described in each Mission Details & Instructions page on or before the applicable Mission Completion Date.
You agree that the Deliverables will be the sole and exclusive property of Mobee. You hereby irrevocably and unconditionally assign to Mobee all right, title and interest worldwide in and to the Deliverables and all intellectual property rights thereto, including but not limited to all copyrights, moral rights, and similar rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to Mobee, then (a) you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against Mobee with respect to such rights, and (b) to the extent you cannot (as a matter of law) make such waiver, you unconditionally grant to Mobee an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit and otherwise use the Deliverables in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the Deliverables. At Mobee’s request, you will (i) cooperate and assist Mobee both during and after the term of this Agreement, in perfecting, maintaining, protecting and enforcing Mobee’s rights in the Deliverables, and (ii) execute and deliver to Mobee any document deemed necessary or appropriate by Mobee in its discretion to perfect, maintain, protect or enforce Mobee’s rights in the Deliverables or otherwise carry out the purposes of this Agreement. You hereby irrevocably designate and appoint Mobee and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to execute, deliver and file any and all documents with the same legal force and effect as if executed by you, if Mobee is unable for any reason to secure your signature on any document needed in connection with the actions described in this section. You acknowledge that this appointment is coupled with an interest.
6.1 Use and Disclosure.
During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) not disclose or permit others to disclose any Confidential Information to any third party without obtaining Mobee’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Mobee’s or any Mobee Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Mobee Customers) that Mobee considers to be confidential or proprietary or Mobee has a duty to treat as confidential. Any Missions or Mission requests are Confidential Information and cannot be disclosed to third parties.
6.2 Standard of Care.
You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care. While you are completing a Mobee Mission, you agree to not disclose that you are using the Mobee app or that you have any affiliation with a brand that may be mentioned within the Mission. You agree to comply with any direction given by store employees while you are completing your Mission, including but not limited to, leaving the premises.
6.3 Reverse Engineering.
You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the Mobee Mobile Application, any other software, products, models, prototypes, or other items provided by Mobee that use, embody, or contain Confidential Information.
Your obligations under Sections 6.1 and 6.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Mobee’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Mobee, or is required by law or court order, provided that you immediately notify Mobee in writing of such required disclosure and cooperate with Mobee, at Mobee’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
Upon Mobee’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Mobee or, if so directed by Mobee, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Mobee in writing that you have fully complied with the foregoing obligations.
7. No Conflicts
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Mission Engagement, or that is otherwise inconsistent with this Agreement, or any Mission Engagement. You further represent and warrant that you will not submit a Mission request for a Mission that involves a brand and/or retailer with whom you have a previous or existing relationship (including, but not limited to, employment, friendship or familial) and if such relationship only becomes evident to you after your Mission Engagement, you immediately notify Mobee of such relationship and terminate the Mission Engagement.
8. Representations And Warranties
In addition to the representations and warranties in section 7 above, you represent, warrant, and covenant that:
(a) You will not, in the course of performing any Mission, infringe or misappropriate, and neither the Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right or other right of any other person, including rights of privacy and publicity; (b) All Deliverables and all elements thereof are your original works and you have all rights necessary to grant the rights set forth in this Agreement; Neither the Deliverables nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to Mobee; (d) You will not grant, directly or indirectly, any right or interest in any Deliverable to any other person; (e) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers); (f) The Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Mission Engagement and this Agreement, and will be of a professional and serviceable quality. In the event of a breach of this warranty, without limiting any other rights or remedies Mobee may have, you will promptly replace the Deliverables at no additional charge to Mobee.
You agree to indemnify and hold Mobee, its affiliates and their respective directors, officers, agents, and employees harmless to the extent of any obligation imposed on Mobee (i) to pay withholding taxes or similar items or (ii) resulting from your being determined not to be an independent contractor. You will indemnify and hold harmless Mobee, its affiliates and their respective directors, officers, agents, and employees from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and Rewards) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement, or any Mission Engagement, by you or any intentional misconduct or negligence by you in performing any Mission.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE GREATEST EXTENT PERMITTED BY LAW. ALL MISSION ENGAGEMENTS ARE AT YOUR OWN RISK.
9. Whistleblower Protection; Other Notices
For the avoidance of doubt, you understand that pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. You further understand that nothing contained in this Agreement limits your ability to (A) communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to Mobee, or (B) share compensation information concerning you or others, except that this does not permit you to disclose compensation information concerning others that you obtain because your responsibilities require or allow access to such information.
10. Limitation of Liability
IN NO EVENT WILL MOBEE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. MOBEE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (A) TEN DOLLARS ($10.00) AND (B) AGGREGATE AMOUNT OF REWARDS OWED BY MOBEE FOR MISSIONS PERFORMED UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor” and you waive any other similar provision of the laws of any other applicable jurisdiction.
11.1 Termination by Mobee.
Mobee may terminate this Agreement and/or any Mission Engagement, in whole or in part, at any time with or without cause for its convenience, in which case Mobee is obligated to pay you Rewards earned by you through the effective date of termination or expiration. Mobee may withdraw any Mission request at any time prior to your acceptance thereof pursuant to Section 2. Reasons for termination include, but are not limited to, creation of multiple accounts, reverse engineering, misuse of Mobee, etc. Users terminated for convenience have up to seven (7) days to redeem any points earned prior to such termination. Users terminated for cause will forfeit all Reward Points earned.
11.2 Termination by You.
Effective upon fifteen (15) days prior written notice to Mobee, you may terminate this Agreement at any time and Mobee will de-activate your account and remove you from all subsequent mailing lists and communications.
Any obligations hereunder which by their nature continue beyond the termination or expiration of this Agreement will survive any such termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
12. General Provisions
12.1 Governing Law; Venue.
This Agreement is governed by the laws of the State of Delaware without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Delaware for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against Mobee.
IN CONSIDERATION OF YOUR CONSULTING RELATIONSHIP WITH MOBEE, ITS PROMISE TO ARBITRATE ALL DISPUTES RELATED TO YOUR RELATIONSHIP WITH MOBEE, AND YOUR RECEIPT OF THE COMPENSATION, AND OTHER BENEFITS PAID TO YOU BY MOBEE, AT PRESENT AND IN THE FUTURE, YOU AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING MOBEE AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF MOBEE, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM YOUR CONSULTING RELATIONSHIP WITH MOBEE OR THE TERMINATION OF YOUR CONSULTING RELATIONSHIP WITH MOBEE, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION PURSUANT TO CALIFORNIA LAW/THE LAW OF THE STATE IN WHICH SERVICES ARE PROVIDED. DISPUTES THAT YOU AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR COMMON LAW CLAIMS. YOU FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT MOBEE MAY HAVE WITH YOU. YOU FURTHER AGREE THAT YOU WILL NOT ASSERT CLASS ACTION OR REPRESENTATIVE ACTION CLAIMS AGAINST MOBEE IN ARBITRATION OR OTHERWISE, NOR WILL YOU JOIN OR SERVE AS A MEMBER OF A CLASS ACTION OR REPRESENTATIVE ACTION, AND THAT YOU WILL ONLY SUBMIT YOUR OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. YOU understand that either party may lawfully seek enforcement of this Arbitration AND EQUITABLE RELIEF Agreement and the Class Action Waiver under the FAA and seek dismissal of such actions or claims. Notwithstanding any other clause contained in this Arbitration Agreement, any claim that all or part of the Class Action Waiver is invalid, unenforceable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration. The claims not covered by this Agreement are claims that are not arbitrable by law, which include claims under the California Private Attorney General Act (“PAGA”) only for so long as PAGA claims are held to be not arbitrable by law by the California Supreme Court, the Ninth Circuit Court of Appeals, or the United States Supreme Court.
12.2.1 Procedure. YOU AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JAMS, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”). YOU AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO ANY ARBITRATION HEARING. However, the arbitrator shall not have the authority to decide issues of arbitrability or enforceability of this arbitration provision. Notwithstanding any contrary terms in the JAMS rules, the arbitrator will not have the authority to determine whether this Arbitration Agreement or any portion of it is enforceable, revocable or valid, the arbitrability of disputes, or whether claims may be arbitrated on a class, collective, or representative basis. YOU ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. YOU AGREE THAT EACH PARTY SHALL BE RESPONSIBLE FOR PAYING SUCH PARTY’S OWN FEES AND COSTS. To the extent YOU bring a claim against MOBEE, YOU shall pay for the costs of arbitration, including any administrative or hearing fees charged by the arbitrator or JAMS, except that YOU shall pay any filing fees associated with any arbitration that YOU initiate, but only so much of the filing fees as YOU would have instead paid had YOU filed a complaint in a court of law. To the extent the foregoing cost-splitting provisions are found not to comply with such then-applicable law, the arbitrator shall reform this Arbitration Agreement such that it is enforceable and consistent with then-applicable decisional or statutory law. YOU AGREE THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT OF LAW. CONSULTANT agree that this Agreement and its validity, construction, and performance shall be governed by the Federal Arbitration Act (the “FAA”) and cases decided thereunder and, to the extent relevant, the laws of the State of California. Further, the terms and procedures governing the enforcement of this Agreement shall be governed by and construed and enforced in accordance with the FAA, and not individual state laws regarding enforcement of arbitration agreements. YOU agree that the decision of the arbitrator shall be in writing. YOU agree that any arbitration under this Agreement shall be conducted in SAN MATEO COUNTY, California, or the site of the closest JAMS office to YOU in YOUR home state. The arbitrator’s decision regarding the claims shall be final and binding upon the parties and shall be enforceable in any court having jurisdiction thereof.
12.2.2 Remedy. EXCEPT AS PROVIDED BY THE FAA AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN CONSULTANT AND MOBEE. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE FAA AND THIS AGREEMENT, NEITHER CONSULTANT NOR MOBEE WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.
12.2.3 Administrative Relief. YOU UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT YOU FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY, INCLUDING, BUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE YOU FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW.
12.2.4 Voluntary Nature of Agreement. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY MOBEE OR ANYONE ELSE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT AND THAT YOU HAVE ASKED ANY QUESTIONS NEEDED FOR YOU TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL. FINALLY, YOU AGREE THAT YOU HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF YOUR CHOICE BEFORE SIGNING THIS AGREEMENT.
If any provision of this Agreement, or part thereof, is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision, or part thereof, will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. To the extent any such provision, or part thereof, cannot be modified so as to be enforceable, it shall be struck and the remainder of this Agreement will be unimpaired by such striking.
12.4 No Assignment.
This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Mobee’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Mobee may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
Mobee may give any notice required by this Agreement by means of a general notice on the Service, electronic mail to your email address on record with Mobee, or by written communication sent by first class mail or pre-paid post to your address on record with Mobee. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Mobee, addressed to email@example.com.
Mobee’s remedies for any breach of this Agreement by you will include without limitation damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Mobee for which monetary damages would not be an adequate remedy and, therefore, Mobee will be entitled to injunctive relief (including specific performance) without the need to post a bond. The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8 Time Is of the Essence.
Time is of the essence in the performance of the Missions and your other obligations under this Agreement.
12.9 Entire Agreement; Amendments.
This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications, representations and understandings between the parties. Except as permitted herein, no modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
In the event that you provide Mobee with any feedback regarding the Service or the Mobee Mobile Application, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Service or the Mobee Mobile Application (“Feedback”), you hereby assign to Mobee all rights in the feedback, including but not limited to, the right to use such feedback and related information in any manner we deem appropriate.
12.11 Modifications to Mobee Mobile Application.
Mobee reserves the right at any time to modify or discontinue, temporarily or permanently, the Mobee Mobile Application or the Service (or any part thereof) with or without notice. You agree that Mobee shall not be liable to you or to any third party for any modification, suspension or discontinuance of the App or the Service including any unredeemed Reward Points accumulated at the time of such discontinuance.
The parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.