Last Updated: 07.06.2022
Please read these Terms of Service (the “Terms”) and our carefully because they govern your use of the website located at open.store (the “Site”) and the services accessible via the Site offered by Miami Labs, Inc. d/b/a OpenStore (“OpenStore”). To make these Terms easier to read, the Site and our services are collectively called the “Services.”
Important notice regarding arbitration for U.S. customers: when you agree to these terms you are agreeing (with limited exception) to resolve any dispute between you and OpenStore through binding, individual arbitration rather than in court. Please review carefully section 14 “dispute resolution” below for details regarding arbitration.
Agreement to Terms.
By using our Services, you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not access or use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
Please review our Privacy Notice, which also governs your use of the Services, for information on how we collect, use and share personal information.
Changes to these Terms or the Services.
We may update the Terms from time to time at our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
You may use the Services only if you are 18 years or older and capable of forming a binding contract with OpenStore, and not otherwise barred from using the Services under applicable law. For access to certain features of the Services, you may need to register and create an account. For example, when you submit your information to https://merchants.open.store/get-started, we will automatically create an account on your behalf. It's important that you provide us with accurate, complete and current account information and keep this information up to date. If you don't, we might have to suspend or terminate your account. To protect your account, keep the account details and any passwords confidential, and notify us right away of any unauthorized use. You're responsible for all activities that occur under your account.
Offer Extension and No Binding Obligation.
If you share your User Content (as defined below) with OpenStore through the Services, OpenStore is under no obligation to make you an offer. OpenStore cannot guarantee you will receive an offer if you share your User Content. OpenStore makes offers in its sole discretion. Offers made are non-binding for either party and are subject to due diligence. No binding obligation exists unless a definitive purchase agreement is executed by and between you and OpenStore.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
Rights to Content.
User Content. For purposes of these Terms, you may share, submit to us, or make available content such as text, information regarding your business, files, documents, data (including personal information), graphics, images, audio and video to OpenStore through the Services. Anything (other than Feedback) that you share, submit, or otherwise make available to us or share publicly through the Services is referred to as “User Content”. OpenStore does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
Permissions to Your User Content. By making any User Content available through the Services you hereby grant to OpenStore a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon your User Content in connection with providing the Services, to the extent User Content is personal information, to process such information as contemplated by our Privacy Notice, and/or for any other lawful purpose known or invented in the future.
Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. Further, you represent and warrant that, to your knowledge, neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by OpenStore on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Removal of User Content. If you would like to remove your User Content, please contact us at [email protected] You agree that we may remove your User Content by de-identifying and/or anonymizing it. Notwithstanding the foregoing, you acknowledge and agree that we may retain User Content that is personal information in accordance with our Privacy Notice. Further, you should know that in certain instances, some of your User Content may not be completely removed and copies of your User Content may remain in archived/backup copies for our records or as otherwise required by law. We are not responsible or liable for the removal or deletion of (or failure to remove or delete) any of your User Content.
OpenStore Intellectual Property. We may make available through the Services content that is subject to intellectual property rights. We retain all rights to that content.
You agree not to do any of the following:
Upload, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates any applicable law or regulation; or (iii) is fraudulent, false, misleading or deceptive;
Use, display, mirror or frame the Services or any individual element within the Services, OpenStore's name, any OpenStore trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without OpenStore's express written consent;
Access, tamper with, or use non-public areas of the Services, OpenStore's computer systems, or the technical delivery systems of OpenStore's providers;
Attempt to probe, scan or test the vulnerability of any OpenStore system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by OpenStore or any of OpenStore's providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by OpenStore or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a OpenStore trademark, logo URL or product name without OpenStore's express written consent;
Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Links to Third Party Websites or Resources.
The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at [email protected] Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 6(b), 6(c), 6(e), 7, 9, 10, 11, 12, 13, 14, and 15.
The services are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement, and any warranties arising out of course of dealing or usage of trade. We make no warranty that the services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the services. No advice or information, whether oral or written, obtained from company or elsewhere will create any warranty or condition not expressly stated in these terms.
You will indemnify and hold OpenStore and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms.
Limitation of Liability.
To the maximum extent permitted by law, neither OpenStore nor its service providers involved in creating, producing, or delivering the services will be liable for any incidental, special, exemplary or consequential damages, or damages for lost profits, lost revenues, lost savings, lost business opportunity, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services of any kind arising out of or in connection with these terms or from the use of or inability to use the services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not OpenStore or its service providers have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
To the maximum extent permitted by the law, in no event will OpenStore's total liability arising out of or in connection with these terms or from the use of or inability to use the services exceed one hundred dollars ($100).
The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between OpenStore and you.
Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all disputes that you and OpenStore are not required to arbitrate will be the state and federal courts located in the Miami-Dade County, and you and OpenStore each waive any objection to jurisdiction and venue in such courts.
We each agree that any dispute arising out of, relating to or concerning these Terms and the Services will be resolved by confidential, binding arbitration administered by JAMS under its arbitration rules then in effect available at www.jamsadr.com (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Further, each party agrees that all information related to any disputes and related arbitrations will remain confidential and not be disclosed to any third party, except as necessary for purposes of conducting allowed third party discovery within the arbitration and/or enforcing a final arbitral award in a court of competent jurisdiction. All arbitration hearings shall be conducted in Miami, Florida. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. Notwithstanding any provision to the contrary, you agree to bring any claim or dispute against OpenStore within one year after the occurrence of the event giving rise to such dispute. You and OpenStore agree that each may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding (“Class Action Waiver”). Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with yours or OpenStore’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Reservation of Rights. OpenStore and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between OpenStore and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between OpenStore and you regarding the Services. With the exception of the Class Action Waiver in Section 14 of these Terms, if any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without OpenStore's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. OpenStore may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by OpenStore under these Terms will be given: (i) via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Rights. OpenStore's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of OpenStore. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact OpenStore at [email protected]