These Terms of Service (these “Terms”) govern your use of (i) the website located at https://open.store (the “Site”) owned and operated by Miami Labs, Inc. d/b/a OpenStore (“OpenStore”, “us”, “we”, or “our”) and (ii) any online services made available via the Site (“Online Services”). The Site and the Online 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 15 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
Agreement to Terms.
Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By using the 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 the Privacy Notice (https://open.store/privacy) (the “Privacy Notice”) for information on how we collect, use and share personal information.
Changes to these Terms or the Services.
We may update these 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 these 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 the 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 for your internal business purposes only and only if you are not 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. 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.
You may share User Content (as defined below) with us in contemplation of an offer or proposal from OpenStore with respect to an acquisition of your business, use of our "OpenStore Drive" service, or other services offered from time to time. OpenStore is under no obligation to make you an offer or proposal (whether for an acquisition of your business, use of our "OpenStore Drive" service, other services offered from time to time, or otherwise). OPENSTORE MAKES OFFERS AND PROPOSALS, AS APPLICABLE, IN ITS SOLE DISCRETION. Offers and proposals made are non-binding for either party and are subject to due diligence. No binding obligation exists unless and until a definitive purchase agreement or service agreement is executed by and between you and OpenStore covering the subject matter of the offer or proposal, as applicable.
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. 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 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, distribute, publicly display and publicly perform your User Content in connection with providing the Services and, 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 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. If you decide to cease using the Services, you will be solely responsible for removing access provided to OpenStore for your third-party services, platforms and social media sites.
Removal of User Content. We are not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. 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. Further, 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. All content on the Site, or otherwise made available via the Services, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like, the trademarks, service marks and logos contained therein, the design of the Site and/or Services, and all software and other technology (collectively, “Company IP”), are owned by or licensed to us and/or our affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, altered, distributed, transmitted, broadcast, displayed, sold, licensed, removed, obscured, or otherwise exploited for any other purposes whatsoever. We reserve all right, title and interest not expressly granted in and to the Services and Company IP, including all associated proprietary intellectual property rights. Using the Site and/or Services does not give you any ownership of or right in or to any Company IP. You acknowledge that the Services and Company IP are protected by copyright, trademark, and other laws of the United States.
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.
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, 7(b), 7(c), 7(e), 8, 9, 10, 11, 12, 13, 14, 15 and 16.
THE SERVICES (INCLUDING THE SITE) 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 OPENSTORE 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 laws of the State of New York, without regard to its conflict of laws provisions, except to the extent preempted by U.S. federal law. Except as otherwise expressly set forth in Section 15 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (as defined below) will be the state and federal courts located in Miami-Dade County, Florida, and you and OpenStore each waive any objection to jurisdiction and venue in such courts.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND OPENSTORE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND OPENSTORE FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND OPENSTORE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. OPENSTORE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against OpenStore, that OpenStore has against you, or that you have or OpenStore has arising from or relating to these Terms, the Services, or any aspect of the relationship between you and OpenStore as it relates to these Terms or the Services, including any privacy or data security claims (collectively, "Disputes" and each a "Dispute"), you and OpenStore agree to attempt to first resolve the Dispute informally via the following process:
If you assert a Dispute against OpenStore, you will first contact OpenStore by sending a written notice of your Dispute (“Dispute Notice”) to OpenStore by certified mail addressed to 2916 N. Miami Ave., Suite 1100, Miami, Florida 33127 or by email to [email protected]. The Dispute Notice must (A) include your name, mailing address, email address, and telephone number, (B) describe the nature and basis of the Dispute, and (C) set forth the specific relief sought.
If OpenStore asserts a Dispute against you, OpenStore will first contact you by sending a written notice of OpenStore’s Dispute (“OpenStore Notice”), and each of a Dispute Notice and OpenStore Notice, a “Notice”) to you via email to the primary email address associated with your account. The OpenStore Notice must (A) include the name of a OpenStore contact and the contact’s email address and telephone number, (B) describe the nature and basis of the Dispute, and (C) set forth the specific relief sought.
If you and OpenStore cannot reach an agreement to resolve the Dispute within thirty (30) days after you or OpenStore receives such a Notice, then either party may submit the Dispute to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines will be tolled for thirty (30) days from the date that either you or OpenStore first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
Disputes Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or OpenStore, including any disputes in which you or OpenStore seek injunctive or other equitable relief for the alleged unlawful use of your or OpenStore’s intellectual property or other infringement of your or OpenStore’s intellectual property rights (“IP Disputes”), all Disputes, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Disputes that are not related to intellectual property or intellectual property rights but are jointly filed with IP Disputes, that are not resolved in accordance with Section 15(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section 15 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules (as defined below), the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
Arbitration Procedure. All Disputes must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA. The then-current version of the AAA’s Commercial Arbitration Rules, which are available on the AAA’s website (adr.org) (the "AAA Rules"), as amended by these Terms as follows, will apply to any arbitration between you and OpenStore:
YOU AND OPENSTORE AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND OPENSTORE ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against OpenStore or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
Any in-person appearances will be held in Miami-Dade County, Florida.
You and OpenStore agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and OpenStore agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against OpenStore or against you by the same or coordinated counsel or are otherwise coordinated.
In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and OpenStore understand and agree that when twenty-five (25) or more similar claims are asserted against OpenStore or you by the same or coordinated counsel or are otherwise coordinated resolution of your or OpenStore’s Dispute might be delayed.
For such coordinated actions, you and OpenStore also agree to the following coordinated bellwether process. Counsel for claimants and counsel for OpenStore will each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases will be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side will select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
A single arbitrator will preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
This bellwether process will continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
The statute of limitations and any filing fee deadlines will be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or OpenStore’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
A court will have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against OpenStore or you.
One Year to Assert Disputes. To the extent permitted by law, any Dispute by you relating in any way to these Terms, the Services, or any aspect of the relationship between you and OpenStore as it relates to these Terms or the Services, must be filed within one year after such Dispute arises; otherwise, the Dispute is permanently barred, which means that you and OpenStore will not have the right to assert the Dispute.
Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at [email protected] or by certified mail addressed to 2916 N. Miami Ave., Suite 1005, Miami, Florida 33127 Attention: OpenStore Legal. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
Rejection of Future Arbitration Changes. You may reject any change we make to Section 15 (except address changes) by personally signing and sending us notice within 30 days of the change via email at [email protected] or by certified mail addressed to 2916 N. Miami Ave., Suite 1005, Miami, Florida 33127 Attention: OpenStore Legal. If you do, the most recent version of Section 15 before the change you rejected will apply.
Severability. If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms, (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15, and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.
Residents Outside the United States. Notwithstanding anything to the contrary in these Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding these Terms either by following the arbitration procedure detailed above in this Section 15 or, if given the right by applicable law, by submitting the Dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the Dispute to the courts of the jurisdiction in which you reside.
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. Except to the extent otherwise provided in Section 15 above, 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].