Mobile Application End User License Agreement
Last Updated: August 25, 2021
This Mobile Application End User License Agreement (“Agreement“) is a binding agreement between you (“End User” or “you“) and Medina Fiber, LLC (“Medina Fiber“). This Agreement governs your use of the MyMedinaFiber Application, (including all related documentation, the “Application“). The Application is licensed, not sold, to you.
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND MEDINA FIBER AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND MEDINA FIBER WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we provide notice of them, and apply to all access to and use of the Application thereafter. If we materially change this Agreement, we will notify you in accordance with applicable law. Your continued use of the Application following the posting of the revised Agreement means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you.
- License Grant. Subject to the terms of this Agreement, Medina Fiber grants you a limited, non-exclusive, and nontransferable license to:
- download, install, and use the Application for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (“Mobile Device“) strictly in accordance with the Application’s documentation; and
- License Restrictions. You shall not:
- copy the Application, except as expressly permitted by this license.
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
- use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Medina Fiber and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Geographic Restrictions. The Content and Services are based in the state of Ohio in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
- Updates. Medina Fiber may from time to time in its sole discretion develop and provide Application updates, which may include, but are not limited to, upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Medina Fiber has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials“). You acknowledge and agree that Medina Fiber is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Medina Fiber does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Term and Termination.
- The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Medina Fiber as set forth in this Section 9.
- You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
- Medina Fiber may terminate this Agreement at any time without notice if it ceases to support the Application, which Medina Fiber may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
- Termination will not limit any of Medina Fiber’s rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MEDINA FIBER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MEDINA FIBER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MEDINA FIBER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR MEDINA FIBER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BY DOWNLOADING OR USING THE APPLICATION, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, protect, defend, and hold harmless Medina Fiber and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
- US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding that is not subject to arbitration arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the City of Dover and County of Kent. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Arbitration. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws principles. THE PARTIES AGREE THAT ANY CONTROVERSIES, CLAIMS OR DISPUTES ARISING BETWEEN YOU AND MEDINA FIBER, WHETHER IN TORT OR IN CONTRACT, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, OR THE APPLICATION, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON YOUR USE OF THE APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE OR APPLICATION LINKED TO IT. ADDITIONALLY, THE PARTIES AGREE NOT TO PURSUE ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT ON A CLASSWIDE BASIS. THE PARTIES AGREE THAT ANY ARBITRATION RELATED TO OR ARISING OUT OF THIS AGREEMENT WILL BE SOLELY BETWEEN YOU AND THE MEDINA FIBER (NOT BROUGHT ON BEHALF OF OR TOGETHER WITH ANOTHER INDIVIDUAL’S CLAIM). SUCH ARBITRATION SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER ITS COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES, INCLUDING WITH REGARD TO THE SELECTION OF THE ARBITRATORS, AT A LOCATION IN BIRMINGHAM, ALABAMA. SUCH ARBITRATION SHALL BE BINDING UPON BOTH YOU AND MEDINA FIBER. THE AWARD RENDERED BY THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT MAY BE ENTERED UPON IT IN ACCORDANCE WITH APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF. THE PARTIES FURTHER AGREE THAT THE PREVAILING PARTY IN SUCH ARBITRATION SHALL BE ENTITLED TO RECOVER THE COSTS OF SUCH ARBITRATION FROM THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE UNDER APPLICABLE LAW IN ANY COURT HAVING JURISDICTION THEREOF.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THIS AGREEMENT, MEDINA FIBER AND YOU ARE EACH WAIVING THE RIGHT TO LITIGATE IN COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, OR TO BE A PARTY TO A CLASS OR REPRESENTATIVE ACTION. YOU UNDERSTAND THAT ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING.
Notwithstanding the foregoing, neither you nor Medina Fiber are required to arbitrate: (1) any dispute in which either party seeks equitable relief for alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents, or (2) individual claims brought in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
If you are an individual, you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use the Application by following the procedure described below.
You may opt out of the arbitration and class actions waiver set forth above by sending a written notice of your decision to opt-out in accordance with this section. If you do so, neither you nor Medina Fiber can force the other to arbitrate. To opt out, you must notify Medina Fiber in writing no later than thirty (30) days after first becoming subject to this Agreement. Your notice must include your name and address, the name and the email address you used to set up your account for the Application, and an unequivocal statement that you want to opt out of this arbitration. Send your notice to: 3500 Blue Lake Dr., Suite 225, Birmingham, AL 35243. In the event of a dispute between you and Medina Fiber, to invoke your opt-out right, you must retain a copy of your opt-out notice, as well as proof of mailing of your opt-out notice within the prescribed period.
If you elect to opt out, each of you and Medina Fiber irrevocably (i) consents to the exclusive jurisdiction and venue of the courts in the State of Delaware in connection with any matter arising out of this Agreement, (ii) waives any objection to such jurisdiction or venue, (iii) agrees not to commence any legal proceedings related hereto except in such courts, (iv) consents to and agrees to accept service of process to vest personal jurisdiction over it in any such courts and (v) waives any right to trial by jury in any action in connection with this Agreement.
This section may be amended from time to time. If you did not opt out of mandatory arbitration as provided above, you may reject any change we make to this section by sending us notice within thirty (30) days after first becoming subject to the amended Agreement. Send your notice rejecting changes to this section to: 3500 Blue Lake Dr., Suite 225, Birmingham, AL 35243. In the event of a dispute between you and Medina Fiber, to invoke your right to apply an earlier version of this section, you must retain a copy of your rejection notice, as well as proof of mailing of your rejection notice during the period of time in which you intend to pursue any claim. Medina Fiber reserves the right to make additional amendments to this section. If you wish to reject additional changes to this section, you must notify us in accordance with this section for each change in accordance with the terms hereof.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other terms, the terms of this Agreement shall govern.
- Contact. The Application is provided by Medina Fiber, LLC, 3500 Blue Lake Dr., Suite 225, Birmingham, AL 35243.
Please direct any questions, complaints, or claims with respect to the Application to:
- Additional Terms Related to Apple.
- Acknowledgement: You acknowledge that the Agreement is concluded between you and Medina Fiber only, and not with Apple, and Medina Fiber, not Apple, is solely responsible for the Application and the content thereof.
- Scope of License: The license granted to you for the Application is limited to a non-transferable license to use the Application on any Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such Application may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
- Maintenance and Support: Medina Fiber is solely responsible for providing any maintenance and support services with respect to the Application, as specified in the Agreement, or as required under applicable law. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
- Warranty: Medina Fiber is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Medina Fiber’s sole responsibility.
- Product Claims: You acknowledge that Medina Fiber, not Apple, is responsible for addressing any claims from you or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application’s use of the HealthKit and HomeKit frameworks.
- Intellectual Property Rights: You acknowledge that, in the event of any third-party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Medina Fiber, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third-Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Application.
- Third-Party Beneficiary: You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary thereof.
- Additional Terms Related to Google.
By downloading the Application from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google“), you specifically acknowledge and agree that:
- To the extent of any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the (“Google Play Terms“), and (b) the other terms and conditions in this Agreement, the Google Play Terms shall apply with respect to your use of the Application that you download from Google Play.
- Google does not have any responsibility or liability related to compliance or non-compliance by Medina Fiber or you (or any other user) under these Terms or the Google Play Terms.
- You must contact Medina Fiber concerning any defects or performance issues in the Application. Medina Fiber is solely responsible for providing, and Google has no obligation provide, maintenance and support for the Application. Support requests, as well as questions, complaints, or claims regarding the Application, may be directed to 3500 Blue Lake Dr., Suite 225, Birmingham, AL 35243.
- The Agreement is solely between you and Medina Fiber only, and not with Google. Google is only a provider of the Google Play Store where you acquired the Application (“Google-Sourced Software“). Medina Fiber, and not Google, is solely responsible for its Google-Sourced Software. Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service.
- Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement.
- Google is a third-party beneficiary to the Agreement as it relates to Medina’s Google-Sourced Software.