TERMS AND CONDITIONS FOR MIO MARKETPLACE LLC.
This User Agreement is effective upon acceptance for new users as of 3/26/2022.
In this User Agreement:
- About MiO
- Using MiO
- Policy Enforcement
- Fees and Taxes
- Listing Conditions
- Purchase Conditions
- International Buying & Selling
- Notice of Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
- Financial transactions
- Contact Authorizations, recording calls, analyzing Message Content and movement on site as well as within but not limited to CRM communication
- Additional Terms
- Cancelations for sellers
- Cancelations for buyers
- MiO guarantees
- Managing payments and renewals
- Disclaimer of Warranties; Limitation of Liability
- Legal Disputes
In this User Agreement, these entities are individually and collectively referred to as ” MiO Marketplace”, “Mio”, “we,” or “us.” Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see “Disclaimer of Warranties; Limitation of Liability” and “Legal Disputes” provisions below). It also contains an Agreement to Arbitrate which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes (“Agreement to Arbitrate”)). If you do not opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
The below contains terms & conditions as set forth by both buyers & sellers and it is implied that both sides are aware of the conditions as set forth on both parties behalf.
In order to comply with all federal and regional non-disclosure and non-collusion policies in the U.S., MiO will do all it can in its capacity to ensure other publishers cannot access other publisher campaigns or opportunities.
This may limit some publishers who may feel that they also act on behalf of clients as an agency. MiO reserves all rights to exclude access to those parties we deem to be part of the media sales community at our discretion and will do all that it can to limit any potential opportunities for collusion within reason.
Outside of U.S. – For additional information on non-US policy please request via email to email@example.com
Our platform DOES track certain movements and actions within our website in order to provide real time feedback to our users and partners. We DO incorporate 3rd party technology to help with that tracking & feedback and by signing up for our services you are implying consent with any of the stated policies of those parties. For more questions regarding this please email them to firstname.lastname@example.org
2. About Mio Marketplace
MiO is a marketplace that allows users to offer, sell and buy various forms of media in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. MiO is not a party to the transaction, and it is not a seller or a traditional auctioneer.
Any guidance we provide as part of our services, such as pricing, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, MiO has no control over and does not guarantee: the existence, quality, safety or legality of campaigns or opportunities advertised or placed within the marketplace; the truth or accuracy of users’ content or listings; the ability of sellers to sell opportunities; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or disputes that may arise within the use of campaign elements.
3. Using MiO
In connection with using or accessing our services you agree to comply with this User Agreement, our policies, our terms, and all applicable laws, rules, and regulations, and you will not:
- breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;
- use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;
- fail to pay for campaigns purchased by you for you and/or on behalf of other clients or brands, unless you have a valid reason as set out in a MiO policy, for example, the seller has materially changed the campaigns description after you bid
- fail to deliver media sold by you, unless you have a valid reason as set out in a MiO policy;
- manipulate the price of any campaign or opportunity or interfere with any other user’s listings;
- post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- take any action that may undermine the feedback or ratings systems
- transfer your MiO account (including feedback) and user ID to another party without our consent;
- distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
- distribute viruses or any other technologies that may harm MiO or the interests or property of users;
- use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of MiO;
- interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
- export or re-export any MiO application or tool, except in compliance with the export control laws, and rules and policies of any relevant jurisdictions;
- infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Bid For Media. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to MiO or someone else;
- infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;
- commercialize any MiO application or any information or software associated with such application, except with the prior express permission of MiO;
- harvest or otherwise collect information about users without their consent; or
- circumvent any technical measures used to provide our Services.
Furthermore you agree that MiO has the right to:
- Include or exclude certain forms of media at its discretion
- Delist any auction it may deem does not comply with certain regulations locally, regional or nationally
- Understand as a buyer or seller that MiO is not responsible to ensure all state, national and local guidelines and restrictions are followed including issues related to taxation.
- All tax issues of collecting or reporting are between the buyer and seller and not MiO
Sellers must meet MiO’s minimum performance standards. Failure to meet these standards may result in MiO charging you additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing MiO and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating our policies, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement.
We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers. The foregoing does not limit or impair our right to refuse, modify, or terminate all or part of our Services to anyone, or to terminate this agreement with anyone, for any reason at our discretion.
5. Fees and Taxes
The fees we charge for using our Services are listed on our pricing pages. We may change our selling fees from time to time by posting the changes on the MiO site fourteen (14) days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
You must have payment method on file when selling using our Services and pay all fees and applicable taxes associated with your use of our Services by the payment due date.
If you wish to dispute the information a collection agency reported to a credit bureau regarding your MiO account, you must contact the collection agency directly.
MiO has NO obligation to collect sales taxes on sales you make using our Services – all financial transactions are directly between the buyer and seller.
We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
We may, at our discretion, limit your ability to link outside the platform and/or limit the ability to upload files that exceed our stated size limitations.
6. Listing Conditions
When listing a media opportunity for sale on our Services, you agree to comply with MiO‘s listing policies and selling practices policy and also agree that:
- You assume full responsibility for the campaign offered and the accuracy and content of the listing,
- Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). MiO can’t guarantee exact listing duration,
- The content you provide complies with all of our listing policies, including the images, videos and text policy which states you are responsible for ensuring your listing does not include images or information owned by others and/or other copyright holders. You assume also responsibility and hold MiO harmless should a dispute arise from the use of copyrighted material.
- Content that violates any of MiO‘s policies may be modified, obfuscated or deleted at MiO‘s sole discretion.
- We may revise product data associated with listings to supplement, remove, or correct information,
- We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- buyer’s location, search query, browsing site, and history;
- campaigns location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
- seller’s history, including listing practices, seller ratings, MiO policy compliance, feedback, and defect rate; and
- number of listings matching the buyer’s query,
- To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer,
- Some advanced listing upgrades will only be visible on some of our Services,
- MiO ‘s duplicate listing policy (which limits each campaign to one) may also affect whether your listing appears in search results,
- Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results,
- We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results may vary for individual listings.
- MiO Media has no responsibility for campaign performance of any product that you list, buy or sell using our Services. You are solely responsible for compliance with any campaign restrictions as both a buyer and/or a seller.
7. Purchase Conditions
When buying an item on our Services, you agree to the rules and policy’s as a buyer and that:
- You are responsible for reading the full item listing before making a bid or committing to buy,
- You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted),
8. International Buying and Selling; Translation
Many of our Services are accessible or viewable internationally. We may in the future offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion. Sellers and buyers will be responsible for complying with all laws and regulations applicable to the international sale, purchase, payment and use of campaigns if purchased by companies or entities based outside of the United States.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against MiO, our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. MiO takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including MiO users). You may use that content solely in your MiO listings. MiO may modify or revoke that permission at any time in our sole discretion. The product data may include copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that MiO is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.
10. The name ” MiO ” and other MiO Marketplace marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of MiO in the U.S. and other countries. They may not be used without the express written prior permission of MiO Marketplace.
11. Renewals and payment responsibilities.
MiO has a policy in place to renew existing agreements automatically at time of renewal unless previously requested to NOT auto-renew and/or in those markets that do not allow for auto renew subscription services.
If you are a subscriber to our system as a seller, you are responsible for ensuring payment is received monthly by the MiO service. Expired payments or payments where processing has been restricted for any reason may be subject to additional payment or penalties not limited to the cost of collecting or processing past due payments.
Furthermore should you wish to cancel your existing contract you must do so in writing and sent by certified mail within 30 days of renewal to MiO Marketplace– 327 11th Avenue North – Suite 203C, St. Petersburg, FL 33701. MiO reserves the right to update this address without notice and without requiring a new agreement to our terms and conditions. If you are unsure at any point of the correct address please see the “contact us” page on miomarketplace.com
12. Authorization to Contact You; Recording Calls; Analyzing Message Content
MiO may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. MiO may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), by agreeing to these terms and conditions, you are providing your consent but may request to opt-out of these services vis email to email@example.com with the subject line “remove from text communications”. Our collection, use, disclosure, retention, and protection of your personal information is governed by our Terms & Conditions agreement. MiO may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. You may change your marketing communications preference for calls at any time, including through the communications preference section of your MiO profile page. You may also opt-out of a specific text marketing campaign by replying “STOP” to such marketing text message.
MiO may share your telephone number with its authorized service providers. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by MiO to carry out the purposes identified above.
MiO may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with MiO or its agents for quality control and training purposes, or for its own protection.
MiO automated systems may scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of MiO‘s User Agreement, including the incorporated terms, notices, rules, and policies. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. MiO may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If MiO provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose or distribute a user’s information to a third party for purposes unrelated to our Services.
13. Additional Terms
All seller cancellations of orders must be in accordance with our order cancellation policies as outlined in this Terms & Conditions agreement. Sellers canceling auctions and/or buyers canceling contracts previously accepted as completed within the platform may cause accounts to be suspended at the discretion of MiO.
Collections and additional payment agreements
As a seller if we cannot get reimbursement from you any disputes regarding payments are strictly between the buyer and seller.
PAYMENT TO MIO:
- At any time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You may make changes to your default payment method through the Personal Information section under the Account payment profile on MiO Marketplace. You are responsible for maintaining the accuracy of information we have on file, and you consent to MiO updating such stored information from time to time based on information provided by you, your bank or other payments services providers. You will only provide information about payment methods that you are authorized to use.
- You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of managed payments. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the payments entity has no control over, or responsibility or liability for, such fees or actions.
14. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in MiO ‘s applications may not occur in real time. Such functionality is subject to delays beyond MiO’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, in no event will MiO (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or Bid For Media was advised of such damages or losses. Without limiting the generality of the foregoing, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- the content you provide (directly or indirectly) using our Services;
- your use of or your inability to use our Services;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any MiO products;
- the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake opportunities;
- a suspension or other action taken with respect to your account or breach of the Abusing MiO Section above;
- the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
- your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from 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. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of our Services or your breach of any law or the rights of a third party.
18. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND MiO Marketplace HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term “related third parties” includes your and MiO respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, MiO’s, and these entities’ respective employees and agents.
You and MiO agree that any claim or dispute at law or equity that has arisen, or may arise, between you and MiO (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of MiO or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and MiO, except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
You and MiO each agree that any and all disputes or claims that have arisen, or may arise, between you and MiO (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of MiO or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court.
Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act (“FAA”), and to the extent not inconsistent with the FAA, the laws of the State of Florida, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate.
1,Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND MIO MARKETPLACE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS
If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court (pursuant to Section 18.C below), subject to your and MiO’s right to appeal the court’s decision. All other claims will be arbitrated.
2. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be administered by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules and the AAA’s Commercial Arbitration Rules, and the AAA’s International Centre for Dispute Resolution Rules (as applicable), as modified by this Agreement to Arbitrate. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA’s rules are available at www.adr.org and www.icdr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court (pursuant to Section 18.C below) shall select the administrator.
A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute (“Notice”). The Notice to MiO must be sent to MiO Marketplace., Attn: Litigation Department, Re: Notice of Dispute, 327 11th Avenue North, St. Petersburg, FL, 33701. MiO will send any Notice to you to the physical address we have on file associated with your MiO account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and complete all information on the Notice form, including a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account.
If you and MiO are unable to resolve the claims described in a valid Notice within 30 days after MiO receives that Notice, you or MiO may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to MiO at the following address: MiO Marketplace 327 11th Avenue North, St. Petersburg, FL, 33701. In the event MiO initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your MiO account. Any settlement offer made by you or MiO shall not be disclosed to the arbitrator.
If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in St. Petersburg, Florida, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or MiO may attend by telephone, unless the arbitrator requires otherwise. The language of the arbitration will be English.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same MiO user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
3. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If you complied with the Notice of Dispute procedures of Section 2 of this Agreement (“Arbitration Procedures”) and the value of the relief sought is $10,000 or less, at your request, MiO will pay all administration and arbitrator fees associated with the arbitration. Any request for payment of fees by MiO should be submitted by mail to the AAA along with your Demand for Arbitration and MiO will make arrangements to pay administration and arbitrator fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse MiO for all fees associated with the arbitration paid MiO on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
5. Opt-Out Procedure
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO MiO Marketplace ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 327 11TH AVENUE NORTH, SUITE 203C, ST. PETERSBURG, FL 33701
IF YOU “OPT-OUT” PLEASE NOTE THAT THIS MAY CAUSE YOUR ACCOUNT TO BE SUSPENDED AND/OR REVOKED AND DOES NOT LIMIT YOUR OBLIGATION UP UNTIL THE DATE AND CONFIRMATION OF RECEIPT.
You must complete and mail the request to us in order to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the MiO account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
6. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against MiO prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and MiO. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.miomarketplace.com at least 30 days before the effective date of the amendments and by providing notice through the MiO Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
All claims or disputes that are not subject to the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate and all matters brought pursuant to and in aid of the Agreement to Arbitrate will be resolved exclusively by a state or federal court located in St. Petersburg, Florida. You and MiO agree to submit to the personal jurisdiction of the courts located within St. Petersburg, Florida for the purpose of litigating all such claims, disputes, or matters.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.miomarketplace.com
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.miomarketplace.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you through the MiO Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a MiO representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
Without limiting MiO‘s ability to refuse, modify, or terminate all or part of our Services, MiO may also terminate this Agreement with anyone at any time for any reason, at our sole discretion, by giving notice of such termination.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the MiO service site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and MiO, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Holds and Restricted Funds, Managed Payments, Additional Terms, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.