Michelin reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described in Section 16(B) below. This Agreement applies to all visitors, users, and others who access the Services (“Users”).
Please read this Agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, as well as indemnities, disclaimers and limitations of Liability
1/ Use of Our Services
This is a contract between you and Michelin. You must read and agree to these terms before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a binding contract with Michelin, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any access to or use of the Services by anyone under 13 is strictly prohibited and in violation of this Agreement. The Services are not available to any Users previously removed from the Services by Michelin.
- Access to the Services
Subject to the terms and conditions of this Agreement, Michelin hereby grants to you a non-exclusive, limited, non-transferable, non-assignable, non-sublicensable, freely revocable license to access and use the Services only as permitted by the features of the Services.
Michelin, its licensors and its and their successors and/or assigns reserve all rights not expressly granted herein in the Services and the Michelin Content (as defined below). Michelin may terminate this license at any time for any reason or no reason.
You acknowledge that you are solely responsible for obtaining, providing and maintaining all telephone, cable, internet, data network access, bandwidth, compatible computer hardware, software, and other devices and equipment needed to access and use the Services, and all charges related thereto.
- Michelin Accounts
We may offer you the ability to register for a Michelin account. If so, your Michelin account could give you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Michelin account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Michelin with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
- You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. Your account may not be used for services to be performed for another person or entity. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Michelin immediately of any breach of security or unauthorized use of your account. Michelin will not be liable for any losses caused by any unauthorized use of your account.
- Services Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, reproducing, or disclosing any part of the Services in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) modifying, preparing derivative works of, licensing, leasing, assigning, sublicensing, selling, reselling, marketing, renting, transferring, publicly displaying, publicly performing, transmitting, streaming, broadcasting, exploiting, exporting, pledging, or otherwise granting or transferring any rights in or to the Services, except as expressly permitted by Michelin; (iii) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Michelin servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Michelin grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from our website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iv) transmitting spam, chain letters, or other unsolicited email; (v) disassembling, decompiling, or reverse engineering the Services, or determining or attempting to determine any source code, algorithms, methods, or techniques used or embodied in the Services; (vi) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (vii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (viii) uploading or introducing invalid data, viruses, malware, worms, or other software agents through the Services; (ix) collecting or harvesting any personal information, including account names, from the Services; (x) using the Services for any commercial solicitation purposes; (xi) accessing or using the Services in order to build a competitive site or service; (xii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity; (xiii) interfering with the proper working of the Services; (ix) accessing any content through the Services through technology or means other than those provided or authorized by the Services; (xv) removing any copyright, trademark or other proprietary notices or labels appearing on any part of the Services; (xvi) permitting the Services to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services or arrangements, or otherwise for processing data or other information on behalf of any third party; (xvii) bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; or (xviii) incorporating the Services into any other materials, products or services not expressly authorized by Michelin.
Accessing any audiovisual content that may be available on the Services for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Services to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
2/ User Content
We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, views, experiences, suggestions, ideas, concepts, questions, data or other content that you (i) submit or post on or through the Service, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us, including any message boards for tire ratings and reviews; or (ii) have posted or uploaded to your social media accounts, including, but not limited to, Instagram, Twitter, Facebook, Tumblr and Pinterest, which are tagged with any Michelin promoted hashtag (collectively “User Content”) shall be deemed nonconfidential and nonproprietary. By submitting or posting any User Content, you grant to Michelin and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including, but not limited to, in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty, or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Michelin will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Michelin shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Michelin retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
By submitting or posting User Content on the Service, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening, sexist, or racially, ethnically or religiously biased or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by Michelin, you will furnish Michelin any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold Michelin and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Michelin does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge Michelin and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by Michelin or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Michelin has no control over, and shall have no liability for, any damages resulting from the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Michelin acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If Michelin becomes aware of any User Content that allegedly may not conform to these Terms, Michelin may investigate the allegation and determine, in its sole discretion, whether to take action in accordance with these Terms. Michelin has no liability or responsibility to Users for performance or nonperformance of such activities.
Michelin has the absolute right to remove and/or delete without notice any user content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against Michelin for such removal and/or deletion. Michelin is not responsible or liable for failure to store posted content or other materials you transmit through the service. You should take measures to preserve copies of any User Content.
3/ Our Proprietary Rights
Except for your User Content, the Services (including, without limitation, any and all enhancements, modifications, updates and upgrades thereof and specifications therefor) and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, User Content belonging to other Users (the “Michelin Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Michelin and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Michelin Content. Use of the Michelin Content for any purpose not expressly permitted by this Agreement is strictly prohibited. For purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights and proprietary rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws, rules and regulations of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Services, including, without limitation, about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Michelin under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Michelin does not waive any rights to use similar or related ideas previously known to Michelin, or developed by its employees or contractors, or obtained from sources other than you.
4/ Communications with Users
If you have registered for an account with us, you expressly consent and agree that Michelin can contact you using written, electronic or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry. By providing Michelin your email address and/or phone number you expressly consent to our using the email address or phone number to send or text you Services-related notices, including any notices required by law, in lieu of communication by postal mail. If you do not want to receive such email or text messages, opt-out of receiving commercial email communications by clicking on the opt-out link at the bottom of the email or opt out of receiving text messages from us as noted below. We make every effort to promptly process all opt-out and unsubscribe requests. You may not opt out of service-related email communications (e.g., account verification, transactional communications, changes/updates to features of the Services, technical and security notices).
We offer you the chance to enroll to receive recurring SMS/text messages from Michelin. You may enroll to receive text messages about account-related news and alerts from Michelin. By enrolling in Michelin’s SMS/text messaging service, you agree to receive text messages from Michelin to the mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase. Michelin is not responsible for any delays upon sending or receiving text messages. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
To unsubscribe from text messages at any time, text STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to [insert number] or reply STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to any text message you receive from Michelin. You consent that following such a request to unsubscribe, you may receive one final text message from Michelin confirming your request. For help, text HELP to [insert number] or contact us at [insert support email].
Michelin cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7/ Copyright Complaints
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Michelin as set forth in the DMCA.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Michelin and its affiliates that your copyrighted material has been infringed. The preceding is intended to comply with Michelin’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Michelin has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Michelin may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8/ Third-Party Links and Information
9/ Reliance on Information; Transactions
You acknowledge and agree that communications or interactions on or through the Services, or with Michelin or our third-party providers, are at your sole and exclusive risk. We reserve the right, but have no obligation, to monitor disputes between you and any third-party provider related to the Services. We do not represent, warrant or guarantee that any third-party provider or other person or entity contributing to the Services has achieved any particular level of expertise or knowledge or has any specific qualifications or credentials, including, without limitation, as to the subject matter to which their contributions relate. We do not independently verify or attempt to confirm any information they provide, nor their qualifications or credentials. Michelin cannot and does not represent or warrant the accuracy, completeness or truthfulness of the contributions of any third-party provider or other person or entity contributing to the Services.
Michelin will have no responsibility, liability or obligation with respect to your interactions with third-party providers, any third-party provider’s actions or inactions, or the consummation of any transaction that may arise as a result of your use of any Service. You are responsible, in your sole discretion, for determining and choosing which parties are authorized to do business with you. You will be fully and solely liable for any and all transactions that are processed as a result of your use of the Services or otherwise
10/ Termination and Suspension
- Termination and Suspension by Michelin
We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services or terminate this Agreement (in each case, in whole or in part) without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason.
- Effect of Termination
Upon termination of this Agreement for any reason, all licenses set forth in this Agreement will immediately terminate and you will immediately cease using the Services, Michelin will cease providing the Services, and the rights and obligations of both parties to this Agreement will cease (other than any and all obligations that survive pursuant to Section 10(C) hereof).
- Survival of Agreement Terms and Conditions
Upon termination for any reason or no reason, you continue to be bound by the terms and conditions of this Agreement that by their nature should survive such termination.
You agree to defend, at your cost and expense, Michelin and its affiliates and its and their employees, contractors, agents, officers and directors, and each of their respective successors and assigns (collectively, the “Indemnified Parties”), against any and all claims, demands, actions, suits, and proceedings (“Claims”), and to pay the Indemnified Parties any and all damages, obligations, losses, liabilities, fines, penalties, settlements, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) in connection with such Claims, arising from, or related to: (a) your use of and access to (or misuse of) the Services, including any data or content transmitted or received by you; (b) your violation or breach of, or failure to comply with, any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content, any content that is submitted via your account including, without limitation, misleading, false, or inaccurate information; (f) your negligence, gross negligence or willful misconduct; or (g) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
In connection with the foregoing, Michelin will notify you promptly after Michelin becomes aware of any such claim. Michelin has the right to defend and/or settle any such matter in such manner as Michelin deems appropriate, without your consent, and you must reimburse Michelin for all costs reasonably incurred in defending and/or settling any such matter, including reasonable attorneys’ fees.
12/ No Warranty
to the maximum extent permitted by law, use of the Services is at your own risk, and the Services are provided on an “as is,” “where is, “as available,” and “with all faults” basis. to the maximum extent permitted by law, the Services are provided without warranties of any kind, whether express or implied, and Michelin and its affiliates, licensors, contractors, subcontractors, suppliers, consultants, advertisers, agents, and other representatives, and each of their respective successors and assigns (collectively with Michelin, the “Michelin Parties”) expressly disclaim any and all such warranties, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment, system integration and/or data accuracy. No opinion, advice or information, whether oral or written, obtained by you from any of the michelin parties, through the Services or otherwise will create any warranty not expressly stated herein. The Michelin Parties cannot and do not guarantee or promise any specific results from use of the services. Without limiting the foregoing, the Michelin Parties do not warrant that the content is accurate, reliable or correct; that the Services will meet your requirements; that the Services will be available at any particular time or location, uninterrupted, error-free, or secure; that any defects or errors will be corrected; that data will not be corrupted or lost; or that the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Services.
Michelin does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a third party through the Services or any hyperlinked website or site, and Michelin will not be a party to or in any way monitor any transaction between you and third-party providers or other users of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
13/ Limitation of Liability
To the maximum extent permitted by applicable law, in no event will any of the michelin parties (defined above) be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, these services. Under no circumstances will Michelin be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Services or your account or the information contained therein.
To the maximum extent permitted by applicable law, Michelin assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) death, personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Services; (c) any unauthorized access to or use of our secure servers and/or any personal information stored therein; (D) any interruption or cessation of transmission to or from the Services; (E) any malfunctions, delays or other failures inherent in the use of the internet; (F) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Services by any third party; (G) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Services; and/or (H) User Content, the defamatory, offensive, or illegal conduct of any third party. Without limiting the foregoing, the michelin parties will not be liable for the conduct, whether online or offline, of any third-party provider, user of the Services or other person or entity contributing to the services and you hereby release the Michelin parties from any and all claims, proceedings, liabilities, obligations, damages, losses or costs (actual and consequential) of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with such conduct. In no event will Michelin, its affiliates, agents, directors, employees, suppliers, or licensors’ collective, aggregate liability to you for any claims, proceedings, liabilities, obligations, damages, losses or costs exceed $100.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Michelin has been advised of the possibility of such damage. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
The Services are controlled and operated from facilities in the United States. Michelin makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws, rules and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. The Services (and all materials found on the Services) are solely directed to individuals, companies, or other entities located in the United States.
14/ Additional Terms for Mobile Applications
B. Mobile Applications from Apple App Store. The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Michelin, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Michelin as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Michelin as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Michelin, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Michelin acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
C. Mobile Applications from Google Play Store. The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Michelin only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Michelin, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Michelin’s Google-Sourced Software.]
15/ Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law. You agree that: (i) the Services will be deemed solely based in South Carolina; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than South Carolina. This Agreement will be governed by the internal substantive laws of the State of South Carolina, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Greenville County, South Carolina for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our Intellectual Property Rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Greenville, South Carolina is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Michelin. For any dispute with Michelin, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Michelin has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Greenville, South Carolina, unless you and Michelin agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section will be deemed as preventing Michelin from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Services for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and Michelin are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Michelin without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
- Notification Procedures and Changes to the Agreement. Michelin may provide notifications, whether such notifications are required by law or are for marketing or other business- related purposes, to you via email notice, text message notice, written or hard copy notice, or through posting of such notice on our website, as determined by Michelin in our sole discretion. Michelin reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Michelin is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Michelin may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Services after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Services.
- Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Michelin in connection with the Services, will constitute the entire agreement between you and Michelin concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement will be unenforceable.
- No Waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Michelin’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
California Residents. The provider of services is set forth herein. 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 Sites of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.