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FALOU TERMS OF SERVICE

 

This is the Terms of Service (the “Terms of Service” or “Agreement”) for the Falou App and all websites and mobile apps owned or operated by MOYMER NEGÓCIOS E SERVIÇOS EM TECNOLOGIA LTDA, a limited liability company incorporated in Brazil (“MOYMER” or “we” or “us”), which includes MOYMER’s websites and applications (“MOYMER APPS”) and any other applications, interactive features, widgets and resources offered by MOYMER through website, mobile device or other platforms and any and all associated services provided by MOYMER in connection with any of the foregoing (all of which, are collectively referred to the “Service”).  Please read these Terms of Service carefully before using the Service offered by MOYMER or entering the Service.

 

BY USING THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO ACCESSING, INSTALLING, VISITING, BROWSING, SCRAPING OR CRAWLING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.

 

We reserve the right, in our sole discretion, to change these Terms of Service at any time, and will publish a revised version of these Terms of Service on the Service with the new “Last Updated” date as indicated at the end of this Agreement. Continued access to and use of the Service following any such change means you accept and will abide by the changes. In the event of a material change that may directly affect your account, we will notify you such as by posting a pop-up message in the Service, or updating the “Last Updated” date below.

 

 

1. Acceptance of Terms

This Service is offered subject to the terms of this Agreement, the Privacy Policy, and any additional terms as requested by certain features of MOYMER Apps from time to time.

 

The Service is offered subject to the acceptance of:

A.    All of the terms and conditions contained herein “as is”, no changes;

B.    All other operating rules, policies and procedures that may be published from time to time on the Service by MOYMER;

C.    All additional terms and conditions promulgated by MOYMER from time to time for the use of certain features of the Service.

 

2. Privacy Policy

By accepting these Terms of Service, you agree to abide by the terms of the Privacy Policy, where applicable.

 

3. Eligibility

You must be able to form a binding agreement (in most jurisdictions, 18 years old) to be eligible to use MOYMER APPS.

 

You may use the Service only if you can form a binding contract with MOYMER, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You represent and warrant that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal or guardian consent and are competent to enter into an agreement to accept these Terms of Service and to use the Service. Any use or access to a MOYMER APP by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by MOYMER.

 

4. Mobile Services

Normal message, data and other rates may apply to your use of the Service on your mobile device, certain Service features may be prohibited by your mobile carrier.

 

The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services ”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the related Mobile Services must be in accordance with this Agreement.

 

5. Registration

You agree to provide accurate registration information without violating third party rights. You are solely responsible for your account.

 

As a condition to using certain aspects of the Service, you may be required to register with Service using your email, Apple Id or Google Id. You shall provide MOYMER with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your account.

 

You shall not:

 

A.    Select or use as a username a name of another person with the intent to impersonate that person;

B.    Use as a username a name subject to any rights of a person or entity other than you without appropriate authorization;

C.    Use a domain name (ex. www.nameofdomain.com);

D.    Use a phone number; or

E.    Use as a username a name that is otherwise offensive, vulgar or obscene.

 

MOYMER reserves the right to refuse registration of, or cancel a Username in its sole discretion. As your username is linked to your email, Apple Id or Google Id account, without the need for password authentication, you shall be responsible for keeping your mobile device in your possession or control at all times and password protect access to your mobile device. You shall never use another user’s account without such other user’s express permission. You will immediately notify MOYMER in writing of any unauthorized use of your account, or other account related security breach of which you are aware.  

 

Although MOYMER will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of MOYMER or others due to unauthorized use.

 

6. Ads

The Service may display ads while you use the Service. You may see banners, interstitials and rewarded ads as you interact with the Service.

All the ads displayed on the Service are the sole responsibility of the advertiser or the ad network platform and MOYMER will not be liable for any content shown.

 

7. Free and Premium

On some Services, you can use some features of the Service for free, but to have full-unlimited access to all the features of the Service you have to buy PREMIUM ACCESS. On other Services, to have full-unlimited access to all the features of the Service you have to buy PREMIUM ACCESS.

Depending on the Service, when you start using the Service your account will be set up as a FREE account, allowing you to access limited features of the service free of any charges. At any time, you may buy a PREMIUM subscription which gives you access to all or part of the features of the Service as set forth below:

A.    Depending on the Service, some features of the Service will be made available for the users with a FREE account so they can try the Service. You understand that if you have a FREE account, the access to these features may be restricted at any time. MOYMER doesn’t have the obligation to provide you with free features and will choose to do so at its sole discretion.

B.    If you enjoy the Service, you can buy a PREMIUM or PRO subscription that will grant access to all or part of the features available on the Service at the moment of the purchase. You understand and acknowledge that MOYMER may deactivate, change or upgrade existing features at any time and at its sole discretion.

C.    If you decide to buy a PREMIUM or PRO subscription, you must agree to the subscription period and to pay the full Price disclosed on the moment of the purchase. You also agree and acknowledge that as you are purchasing a subscription service, your account will be billed continuously for the subscription until you terminate it as set forth below.

D.    You acknowledge and agree that the price for the subscription may vary from time to time, with or without notice. Therefore, you agree that on the renewal of your subscription you will be charged the most updated price for the PREMIUM or PRO subscription.

E.    You acknowledge and agree that MOYMER may give special offers subject to extra terms or restrictions and that these offers are non-transferable, non-cumulative and can’t be shared with other users.

F.     At the moment you create your account, you may use a PROMOTIONAL CODE. A PROMOTIONAL CODE might give you a discount that will vary depending on which code you use. You acknowledge and agree that the discount may change or be cancelled at any time and that a PROMOTIONAL CODE has an undetermined lifetime so it can be discarded by MOYMER at any time.

G.    Depending on the subscription, when you buy the PREMIUM or PRO subscription, all or part of the available features will be instantly made available for you to use. However, if at the time of the auto-renewal of your subscription we don’t receive a confirmation that you have made the payment, you may lose access to all features of the Service until your payment is confirmed.

H.    Once you become a PREMIUM or PRO user, we'll automatically make all or part of the features of the Service available for you to use. Therefore, you acknowledge and agree that you won’t be able to ask for a refund for the amount paid.

I.      At the moment of an automatic renewal, you acknowledge and agree that if the payment is not confirmed with success in less than 30 days, we can cancel your subscription and restrict your access to certain or all features of the Service.

All payments will be processed by Apple if you have an iOS device or by Google if you have an Android device. Therefore, you acknowledge and agree that:

A.    If you buy a PREMIUM or PRO subscription via an iOS device, in addition to these Terms of Service you agree to the Terms of Service (https://www.apple.com/br/legal/internet-services/terms/site.html) and Privacy Policy (https://www.apple.com/legal/privacy/) of the Apple App Store.

B.    If you buy a PREMIUM or PRO subscription via an Android device, in addition to these Terms of Service you agree to the Terms of Service (https://play.google.com/intl/en/about/play-terms.html) and Privacy Policy (https://policies.google.com/privacy?hl=en&gl=br) of the Google Play.

C.    If you decide to cancel your subscription, for any reason, you may enter the App Store or Google Play (depending on which you first subscribed to PREMIUM or PRO) in any of the following links and follow the instructions: https://play.google.com/store e https://www.apple.com/ios/app-store/.

D.    If you buy a PREMIUM or PRO subscription via an iOS device, this subscription can't be used on Android devices. As well as, PREMIUM or PRO subscriptions bought via Android devices, can't be used on iOS devices.

8. Ownership of Service and MOYMER Content

All content you see on the Service, unless submitted by you, are owned or licensed by third parties. Your use of the Service does not give you ownership to those content.

 

You agree that the Service contains MOYMER Content specifically provided by MOYMER, its business partners and other Service Users and that such MOYMER Content is protected, (individually or as a collective work or compilation) by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. The elements of the MOYMER Content (collectively, “MOYMER Content”) include without limitation, the user interface, interactive features, button icons, content, software, code, data, art, graphics, animation, videos, images, text, music, sound effects, all audio and audiovisual elements, look-and-feel, design, layout, organization, presentation, navigation, compilation, trade dress and stylistic convention of the Service and other materials you may view on or access through the Service. MOYMER Content also includes all communication and comments made by other Service Users and any other information or material uploaded by other Service Users on the Service. Your use of the Service does not give you ownership of any MOYMER Content not submitted by you.

 

9. Use of MOYMER Content

You do not have rights to use MOYMER Content in any manner other than those explicitly authorized under this Agreement.

 

You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any MOYMER Content or third party submissions or other proprietary rights not owned by you,

A.    without the consent of the respective owners or other valid right, or

B.    in any way that violates any third party right.

 

Subject to your complete and ongoing compliance with this Agreement, MOYMER hereby grants you a revocable, exclusive, non-transferable, non-sub licensable, royalty-free and worldwide right and license to access and use the Service for your personal, non-commercial use and solely in strict compliance with the provisions of this Agreement.

 

10. Trademarks

Your use of the Service does not grant you the right to use trademarks owned by MOYMER or third parties unless authorized under this Agreement.

 

All trademarks, logos, service marks and trade names, displayed on the Service or on MOYMER Content are registered or unregistered Trademarks of MOYMER, its business partners and/or others, and may not be used unless authorized by the Trademark owner.  Nothing contained on the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Service.

 

11. Consideration

You acknowledge and agree that your access to and use of the Service, the MOYMER Content and the services provided through the Service constitute adequate consideration to you in exchange for your agreement to comply with the terms of this Agreement. You waive any rights to any revenues and/or goodwill MOYMER may generate from your use of the Service.

 

12. User Content

A.    By posting User Content on the Service, you represent and warrant that:

 

a.    You own the rights or licenses to your User Content, you have obtained the necessary consents from people or organizations contributing to the content. You own, or have the necessary licenses, rights, consents, and permissions to use and authorize MOYMER to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by MOYMER and these Terms of Service, and to grant the rights and license set forth in this Section. You have the consents from for all persons appearing in, and all persons and entities otherwise licensing, granting or contributing rights, materials or services in connection with, the User Content, including without limitation, all persons performing or appearing on camera or whose voice is audible in the User Content (including without limitation, the rights to use their respective names, likenesses and identities), all location releases, intellectual property (but specifically excluding any logos or trademarks of foods or beverages or other similar items that may appear in any User Content) licenses, clip licenses and music licenses, so that the User Content is free and clear for MOYMER’s and your use under this Agreement;

b.    Your User Content does not infringe third party rights. Your User Content, MOYMER 's use of such User Content pursuant to this Agreement, and MOYMER 's exercise of the license rights set forth in this Section, do 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;

                                    ii.     Slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or

                                   iii.     Violate any applicable law or regulation;

c.    No payment needed. There is no need for any payment to any other person or entity, to use, and to authorize us to use, your User Content in all manners contemplated by these Terms of Service (including the User Content License set forth below).

 

B.    User Content License. You grant to MOYMER and its affiliates a non-exclusive, fully-paid, royalty-free, unrestricted, perpetual, irrevocable, fully transferable (in whole or in part), assignable, worldwide with the right to grant and authorize sublicenses, under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control, to use, reproduce, transmit, perform, display, exhibit, distribute, index, comment on, modify, reformat, create derivative works based upon, perform and otherwise exploit your User Content, in whole or in part, alone or in combination with other content or material, in all media formats and channels now known or hereafter devised (including by way of example but in no way a limitation, the internet, mobile devices, and through any future means or methods of downloading and/or streaming now known or hereinafter devised) in connection with the Service and MOYMER's (and its successors’, transferees', sub licensees' and their respective affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof), all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "User Content License"). We cannot be responsible for maintaining your User Content that you provide to us, and we may delete or destroy your User Content at any time. You grant MOYMER and its affiliates, transferees and sub licensees (and their respective affiliates) the right to use your name and Service Username that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Service and these Terms of Service;

C.    No Responsibility for MOYMER Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, MOYMER Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such MOYMER Content.

You understand that MOYMER shall have the right to reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Service or otherwise through the Service is the sole responsibility of the person from which such content originated and that MOYMER will not be liable for any errors or omissions in any content; and that MOYMER cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.

 

You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms of Service.

 

13. FTC Compliance

When making statements about products or services on the Service, you agree to abide by FTC Guidelines regarding Endorsements and Testimonials.

 

You agree that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any MOYMER Content or User Content, including that you will

 

      I.         Make only accurate statements that represent your genuine experience with any product or service and

     II.         Make all required disclosures pursuant to the Federal Trade Commission’s (“ FTC ”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such Guides may be amended from time-to-time by the Federal Trade Commission. Follow this link for further information on complying with the FTC’s guidance: https://www.ftc.gov/enforcement.

 

14. User Submission

When you submit ideas to MOYMER, we are not obligated to use your ideas, nor are we obligated to compensate you if we use your ideas, nor are we obligated to keep your ideas confidential.

 

You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“User Submission"). By submitting any User Submission, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place MOYMER under any fiduciary or other obligation, and that we are free to use the User Submission without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, MOYMER does not waive any rights to use similar or related ideas previously known to MOYMER, or developed by its employees, or obtained from sources other than you.

 

15. Public Forums and Communication

MOYMER is not responsible for any content or interactions happening in the Service unless otherwise stated in this Agreement.

 

"Public Forum" means any area, site or feature that may be offered as part of any Service that offers the opportunity for you to submit your User Content for viewing by one or more Service Users, such as your audio messages and text messages.

 

You are solely responsible for your User Content submitted by you under your MOYMER Username. We have no duty to monitor any Public Forum. You understand that when using the Service, you will be exposed to MOYMER Content from a variety of sources, and that MOYMER is not responsible for the appropriateness, accuracy, usefulness, safety, or intellectual property rights of or relating to such MOYMER Content. You further understand and acknowledge that you may be exposed to MOYMER Content that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MOYMER with respect thereto, and agree to indemnify and hold MOYMER, its parent, subsidiaries, affiliates, and/or business partners, harmless to the fullest extent allowed by law regarding all matters related to your use of the Service.

MOYMER does not endorse any MOYMER Content or any opinion, recommendation, or advice expressed therein, and MOYMER expressly disclaims any and all liability in connection with MOYMER Content.

 

We owe you no obligation, and therefore may refuse to post, deliver, remove, modify or otherwise use or take any action with respect to your User Content that you submit.

 

Please keep in mind that you are solely responsible for your interactions with other users. We reserve the right, but have no obligation, to monitor disputes between you and other users. MOYMER will have no liability for your interactions with other users.

 

16. Prohibited User Conduct

You warrant and agree that, while accessing or using the Service, you will not, nor will you assist or permit any person, to:

A.    Make unauthorized copies of any content made available on or through the Service;

B.    Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party or use the Service to provide time sharing or similar services for any third party;

C.    Impersonate any person or entity or misrepresent your affiliation with any other person or entity, whether actual or fictitious, including anyone from the Service or MOYMER, or provide false personal information;

D.    Submit any materials or communicate any information that (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; (d) harms or can reasonably be expected to harm any person or entity; or (e) otherwise encourage users to perform any activity that puts themselves or others at risk;

E.    Use the Service or its Service in violation of the intellectual property or other proprietary or legal rights of MOYMER or any third party;

F.     Post content that actively promotes or glorifies self-harm. This includes content that urges or encourages others to: cut or injure themselves, embrace anorexia, bulimia, or other eating disorders, or commit suicide rather than, e.g., seeking counseling or treatment, or joining together in supportive conversation with those suffering or recovering from depression or other conditions;

G.    Submit any materials or communicate any information that is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them;

H.    Unless otherwise approved by MOYMER, submit any materials or communicate any information that is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);

I.      Use the Service or Service that MOYMER find, in its sole discretion, to use MOYMER’s resources or MOYMER Content with the effect of or displacing the market for MOYMER;

J.    Try to influence/modify the voting system that is an integral part of the competitive system on the Service, such as Challenges;

K.    Use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;

L.    Attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;

M.   Delete or alter any material MOYMER or any other person or entity posts on the Service;

N.    Access, tamper with, or use non-public areas of the Service, the MOYMER’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of the MOYMER’s providers;

O.   Create a new account with MOYMER, without MOYMER’s express written consent, if MOYMER has previously disabled an account of yours;

P.    Solicit, or attempt to solicit, personal information from other Users of the Service;

Q.   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 that person, or collect information about users of the Service;

R.    Gain unauthorized access to the Service, to other Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;

S.    Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;

T.    Violate any applicable federal, state, or local laws or regulations or the terms of this Agreement.

You alone are responsible for the consequences of any of your activities while you are visiting or using the Service.

 

17. Third Party Advertising and Sponsorship

You will not be entitled to third party advertising and sponsorship revenues generated by MOYMER.

 

You understand and agree that third-party advertising or sponsorship, in any commercially reasonable format, may be made available to users of the Service, including in connection with uploaded entries. You expressly agree that you shall not be entitled to any sharing or other compensation whatsoever for any revenue generated by (or received by MOYMER for) the display of any such advertisements or sponsorships.

 

18. Links From The Service to Third Party Sites

You are solely responsible for your activities on third party sites you link to from the Service.

 

The Service may contain links to third-party websites, apps, advertisers, vendors, services or other events or activities that are not owned or controlled by MOYMER (each, a “Linked Site”).  You acknowledge and agree that MOYMER does not operate or control in any respect, or necessarily endorse, the information, content, products, services, advertising, or other materials that may be found on a Linked Site.  When you link to a Linked Site, you become subject to their terms of service and privacy policy rather than to ours. You assume sole and complete responsibility for, and we do not accept any responsibility for any losses or penalties incurred as a result of, your use of a Linked Site, any transactions between you and the Linked Site, and any reliance on the contents of a Linked Site is at your own risk.

 

19. Right to Monitor and Editorial Control

MOYMER reserves the right, but not the obligation, to monitor or review MOYMER Content. MOYMER may disclose any information as requested by law, and reserves the right to refuse to post or remove a MOYMER Content for any reason, any time, with or without notice.

 

MOYMER reserves the right, but does not have an obligation, to monitor and/or review all MOYMER Content posted to the Service or through the Service’s services or features by users, and MOYMER is not responsible for any such materials posted by users. However, MOYMER reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request. MOYMER shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any MOYMER Content that is available on the Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.  We may also impose limits on certain features or restrict your access to part or all of the features or services without notice or penalty if we believe you are in breach of the guidelines set forth in this paragraph, our terms and conditions or applicable law, or for any other reason without notice or liability. If at any time MOYMER chooses, in its sole discretion, to monitor the MOYMER Content, MOYMER nonetheless assumes no responsibility for such MOYMER Content, no obligation to modify or remove any inappropriate MOYMER Content, and no responsibility for the conduct of the user or other person or entity submitting any such MOYMER Content.

 

20. Agreement not with App Stores

To use the Service, you agree to also abide by the terms and conditions of the App Store from which you download the Service.

You acknowledge and agree that the availability of the Service is dependent on the third party from whom you received the Service e.g., Google’s Google Play or Apple’s App Store (each, an “App Store”).  You acknowledge that this Agreement is between you and MOYMER and not with the App Store.  Each App Store may have its own terms and conditions to which you must agree before downloading the Service from it.  You agree to comply with, and your license to use the Service is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.

 

21. Indemnification

YOU AGREE TO INDEMNIFY AND HOLD HARMLESS MOYMER AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SPONSORS, ADVERTISERS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR CONTENT, INCLUDING MOYMER'S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS OF SERVICE; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY MOYMER. THE SERVICE RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF MOYMER. MOYMER WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.

 

22. Digital Millennium Copyright Act Take-Down Notice

MOYMER has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of the designated Copyright Agent to receive Notification of Claimed Infringement ("Copyright Agent") is listed at the end of this Section.

 

A.    Reporting Copyright Infringement. If you are a copyright owner or an agent thereof, and believe that any MOYMER Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that MOYMER is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, e-mail address;
5. A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

B.    MOYMER’s Action. Upon receipt of proper notification of claimed copyright infringement, MOYMER will:

1. Remove or disable access to the infringing material;
2. Notify the content provider or user that it has removed or disabled access to the material; and
3. Repeat offenders will have the infringing material removed by MOYMER from the system and MOYMER will terminate such repeating offender’s access to the Service.

C.   Copyright Counter-Notice. If the content provider or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or pursuant to the law, the content provider or user must send a counter-notice containing the following information to the Copyright Agent listed below:

1. A physical or electronic signature of the content provider or user;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the content provider or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material;
4. Content provider's or user's name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's or user's address is located, or if the content provider's or user's address is located outside the United States, for any judicial district in which MOYMER is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, MOYMER may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed material will be allowed to be uploaded by the original sender or any event participant in 10 to 14 business days or more after receipt of the counter-notice, at MOYMER 's discretion.

D.   Foreign Counter-Notification.  If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for users who are infringers. So, if you are not sure whether content you posted on the Service is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading "Copyright Counter-Notification".

MOYMER’s designated Copyright Agent to receive notification of claimed infringement is:

 

MOYMER

MOYMER NEGÓCIOS E SERVIÇOS EM TECNOLOGIA LTDA

ATTN: Gabriel Santos

Rua Domingos de Morais, 2187, Bloco Paris, Cj 521

Vila Mariana, São Paulo, SP BRAZIL 04035-000

Email: copyright@moymer.com

E.    False Notifications of Claimed Infringement or Counter Notifications.  The Copyright Act provides that:

Any person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorney's fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [the Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

17 U.S.C. § 512(f).

The Company reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

 

23. Void Where Prohibited

MOYMER controls and operates the Service from offices in Brazil. We make no representation that MOYMER Content is appropriate or authorized for use in all countries, states, provinces, counties or any other jurisdictions. Not all products or services mentioned on the Service are available to all persons or in all geographic locations or jurisdictions MOYMER, its business partners and vendors reserve the right to limit the provision of their products or services to any person, geographic area, or jurisdiction they so desire and to limit the quantities of any products or services that they provide. Any content, offer or service on the website is void where prohibited and the user automatically indemnifies MOYMER from any legal or statutory outcomes resulting from their decision or action. MOYMER reserves the right to block access to the Service by certain international users. When you access the Service, you are responsible for compliance with all applicable local laws.

 

24. Warranty Disclaimer

TO THE FULLEST EXTENT PERMITTED BY LAW, MOYMER AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “MOYMER PARTIES”) MAKE NO WARRANTIES REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON SERVICE, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETE APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE MOYMER PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOUR USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.

 

THE MOYMER PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEIR RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO COMPANY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.

 

THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE MOYMER PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.

 

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

THE SERVICE DOES NOT WARRANT THAT YOUR ACTIVITIES IN CONNECTION WITH OR USE OF THE CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, THE SERVICE SPECIFICALLY DISCLAIMS SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE CONTENT, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACCESS AND ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE, THE SERVICES OR THE CONTENT.

 

25. Limitation of Liability

IN NO EVENT WILL ANY MOYMER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH MOYMER PARTY HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. MOYMER’s LIABILITY, AND THE LIABILITY OF ANY OTHER SERVICE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF WHAT YOU HAVE PAID US FOR THE PAST THREE MONTHS AND U.S. $100.

The Service is operated by MOYMER from its facilities in Brazil. MOYMER makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE SERVICE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, APP, PROPERTY, PRODUCT, PROGRAM, CONTENT OR OTHER TEXT/AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY OR LICENSED TO MOYMER AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SERVICE, SERVICES, CONTENT, PRODUCT, PROGRAM, MUSIC, YOUR USER CONTENT OR OTHER TEXT/AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.

 

26. Third Party Disputes

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE MOYMER PARTIES 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.

 

27. Interstate Nature of Communications

When you visit our Service, you acknowledge that in using the Service to send electronic communications (including but not limited to email, search queries, uploading videos, photos and files to Service and other Internet activities), you will be causing communications to be sent through MOYMER’s computer networks, portions of which may be located in various locations in the United States and portions of which are located abroad. As a result, and also as a result of MOYMER’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature will result in the transmission of U.S. interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the service results in U.S. interstate data transmissions.

 

28. Special Note to International Users

The Service is hosted in the United States. If you are a user accessing the Service from the European Union, Asia, North America or any other region with laws or regulations governing personal and business data collection, use, and disclosure, that differ from U.S. laws, please be advised that through your continued use of the Service, which are governed by U.S. law, our Privacy Policy, and our Terms of Service, you are transferring your personal and business information to United States and you consent to the transfer, storage, and processing of your information, including but not limited to User Content and any personal information, to and in United States and/or other countries. If you are using the Service from a country embargoed by the United States, you agree that you will not conduct any commercial activities using or through the Service.

 

29. Termination

MOYMER may terminate, change, limit, suspend or discontinue any aspect of the Service at any time. MOYMER may restrict, suspend or terminate your access to the Service and/or this Agreement if we reasonably believe or suspect you have acted inappropriately on the Service or you are in breach of these Terms of Service or applicable law, or for any other reason without notice or liability. Additionally, MOYMER may terminate or limit use or access privileges to the Service of users who are repeat infringers of intellectual property rights and third party rights. Please note that deleting your User Content or uninstalling the Service does not terminate this Agreement or cancel your account. You may terminate this Agreement and cancel your account at any time, via the functionality offered in the app or by contacting us at help@moymer.com.  This Agreement is effective until terminated by you, or by MOYMER for any reason, with or without notice. Upon any termination of this Agreement, you agree to discontinue your use and access of the Service and to immediately destroy all materials obtained from it.

In event that the account is terminated, we will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. We may retain and continue to display Information that you post in areas of the Service that are accessible by others.  Also, information that you post in such areas may be retained, copied, reposted and distributed by others.

All provisions of the Terms of Service, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitation of liability.

 

30. Apple App Store Additional Terms and Conditions

The following additional terms and conditions apply to you if you are using a MOYMER App from the Apple App Store.  To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 28, the more restrictive or conflicting terms and conditions in this Section 28 apply, but solely with respect to the MOYMER App from the Apple App Store.

A.    Agreement not with Apple, but Apple terms govern if more restrictive: MOYMER and you acknowledge that this Agreement is concluded between MOYMER and you only, and not with Apple, and MOYMER, not Apple, is solely responsible for the MOYMER App and the content thereof.  To the extent this Agreement provides for usage rules for MOYMER App that are less restrictive than the Usage Rules set forth for MOYMER App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies;

B.    Limited license: The license granted to you for MOYMER App is limited to a non-transferable license to use MOYMER App on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service;

C.   Apple not responsible for maintenance and support: MOYMER is solely responsible for providing any maintenance and support services with respect to MOYMER App, as specified in this Agreement (if any), or as required under applicable law. MOYMER and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to MOYMER App;

D.   No warranty from Apple: MOYMER is solely responsible for any product warranties, whether expressed or implied by law, to the extent not effectively disclaimed. In the event of any failure of MOYMER App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for MOYMER App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to MOYMER App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be MOYMER’s sole responsibility;

E.    Apple not responsible for product claims: MOYMER and you acknowledge that MOYMER, not Apple, is responsible for addressing any claims of you or any third party relating to MOYMER App or your possession and/or use of MOYMER App, including, but not limited to: (i) product liability claims; (ii) any claim that MOYMER App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit MOYMER’s liability to you beyond what is permitted by applicable law;

F.    Apple not responsible for intellectual property infringements claims: MOYMER and you acknowledge that, in the event of any third party claim that MOYMER App or your possession and use of MOYMER App infringes that third party’s intellectual property rights, MOYMER, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;

 

31. Apple as Third Party Beneficiary

MOYMER and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

 

32. Dispute Resolution

Except for users accessing the Service from the United States, you will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Terms of Service exclusively in the civil courts of the Court of District of São Paulo-SP, Brazil and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of Brazil, will govern this Terms of Service, as well as any claim that might arise between you and us, without regard to conflict of law provisions.

 

For users accessing the Service from the United States, you agree to the dispute resolution described below.

A.    Mandatory Arbitration. For users accessing the Service from the United States, for any dispute with MOYMER, you agree to first contact us at help@moymer.com and attempt to resolve the dispute with us informally. In the unlikely event that MOYMER has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims"), by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information;

a.    Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by a reputable courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to the Company, to you via any other method available to the Company, including via e-mail. The Notice to the Company should be addressed to RUA DOMINGOS DE MORAIS, 2187, BLOCO PARIS, CJ521, VILA MARIANA, SAO PAULO, SP BRAZIL, 04035-0000, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and the Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES ("Rules"), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available at http://www.adr.org. If you are required to pay a filing fee to commence arbitration against MOYMER, then MOYMER will promptly reimburse you for your confirmed payment of the filing fee upon the MOYMER’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than U.S.$1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee;

b.    Arbitration Proceeding. The arbitration will be conducted in English. A single independent and impartial arbitrator with his or her primary place of business in New York County, New York will be appointed pursuant to the Rules, as modified herein. You and MOYMER agree the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction;

c.    No Class Actions/Jury Trial Waiver.   REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE MOYMER APP FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND MOYMER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU AND MOYMER WAIVE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR MOYMER WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. YOU ALSO AGREE NOT TO PARTICIPATE IN CLAIMS BROUGHT BY A PRIVATE ATTORNEY GENERAL OR IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT;

d.    Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidence a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement;

B.    Equitable Relief.  Nothing in this Section shall be deemed as preventing MOYMER from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation or violation of MOYMER’s data security, intellectual property or other proprietary rights. You acknowledge that, in the event MOYMER or a third party breaches this Agreement, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against MOYMER, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement;

C.    Claims. You and MOYMER agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred;

D.    Improperly Filed Claims. All claims you bring against MOYMER must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section, MOYMER may recover attorneys’ fees and costs up to $5,000, provided that MOYMER has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim;

E.    Modifications. In the event that MOYMER makes any future change to the Mandatory Arbitration provision (other than a change to MOYMER’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to MOYMER’s Arbitration Notice Address, in which case your account with MOYMER and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement;

F.     Enforceability. If only Section 30.i.c or the entirety of this Section 30 is found to be unenforceable, then the entirety of this Section 30 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 31 will govern any action arising out of or related to this Agreement.

 

33. Miscellaneous

This Agreement is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Mandatory Arbitration provision above, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision above is found to be unenforceable.

 

You agree that MOYMER may assign any of its rights and licenses granted hereunder and/or transfer, subcontract or delegate any of its obligations under this Agreement without restriction.  This Agreement is personal to you and you may not transfer or assign it to a third party. This means that in the event you dispose of any device on which you have installed any MOYMER App, such as by sale or gift, you are responsible for deleting any such MOYMER App from your mobile device prior to such disposition.

 

Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

 

If any part of this Agreement is determined to be invalid or unenforceable under applicable law including but not limited to the warranty disclaimers and liability limitations stated above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.

 

MOYMER may provide you with notices, including those regarding changes to these Terms of Service, by postings on the Service, which includes push notifications.  Also, you consent to using push notifications (if notification is turned on by you) to send you MOYMER App related notices, including any notices required by law, in lieu of communication by postal mail. You may provide MOYMER with notices only by mail to the address indicated below:

 

MOYMER

MOYMER NEGÓCIOS E SERVIÇOS EM TECNOLOGIA LTDA

Rua Domingos de Morais, 2187, Bloco Paris, Cj 521

Vila Mariana, São Paulo, SP BRAZIL 04035-000

 

This Agreement constitutes the entire agreement between you and MOYMER with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and MOYMER with respect to the Service.  A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.

 

Any rights not expressly granted in this Agreement are reserved to MOYMER.

 

Last Updated: February 14th, 2024