Last updated: January 7, 2021
FiveStar Mobile Application
The FiveStar Mobile Application (“App”) and all services provided through the App (collectively, “Services”) are made available by FiveStar App, Inc. (“FiveStar,” “us,” “our,” and/or “we”). Certain features of the App and Services may be subject to additional guidelines, terms, or rules, which will be posted through the App or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. References to “you” and “your” refer to you, a user of our App and/or Services.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST FIVESTAR ON AN INDIVIDUAL BASIS, NOT AS A 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.
2.1 Account Creation. In order to use certain features of the App and Services, you must register for an account with FiveStar (“FiveStar Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information at all times. You may not create more than one FiveStar Account. FiveStar may suspend or terminate your FiveStar Account as provided in this Agreement below.
2.2 Account Deletion. You may delete your FiveStar Account at any time, for any reason, through the App.
2.3 Account Responsibilities. When you create a FiveStar Account, information about the device you use to access the App and Services will be registered with your account for your authentication to the App and Services. You are fully responsible for all activities that occur under your FiveStar Account. You agree immediately to notify FiveStar of any unauthorized use, or suspected unauthorized use, of your FiveStar Account or any other breach of security. Your access to the App and Services, and your account, is solely for your own personal use. Except with the express authorization of another user to access and use the App and Services on such user’s behalf, you shall not authenticate to the App and Services as any other user at any time, or attempt to impersonate another user, or any person who is not a user.
3. MOBILE APP.
3.1 Personal, Non-Commercial Limited License. Subject to the terms of this Agreement, FiveStar grants you a limited, revocable, non-transferable, non-exclusive license to install and use the App, in executable object code format only, solely on your own handheld mobile device, for your personal, non-commercial use.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the App or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the App or Services; (c) you shall not access the App or Services in order to build a similar or competitive product or service; (d) except as expressly stated herein or otherwise permitted by FiveStar in advance in writing, no part of the App or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means (including by, e.g., scraping, mirroring, framing, embedding, or linking); and (e) your use of the App and Services shall at all times comply with all applicable laws and regulations. Commercial use of any content made available through the App or the Services is strictly prohibited without the specific prior written consent of FiveStar. Any future release, update, or other addition to functionality of the App or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on the App or any Services content must be retained on all copies thereof.
3.3 Modification. FiveStar reserves the right, at any time, to modify, suspend, or discontinue the App and/or Services, or any part thereof, with or without notice. You agree that FiveStar will not be liable to you or to any third party for any modification, suspension, or discontinuance of the App or Services, or any part thereof.
3.5 App Platforms.
(a) Generally. You acknowledge and agree that the availability of the App is dependent on the third-party app platform from which you received the App, e.g., the Apple App Store® or the Google Play® Store (“App Platform”). You acknowledge that this Agreement is between you and FiveStar and not with the App Platform provider. FiveStar, not the App Platform provider, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Platform provider in connection with the App. Each App Platform may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable agreements, terms, and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform provider (and its subsidiaries) is a third-party beneficiary of this Agreement and will have the right to enforce this Agreement. You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms when accessing and obtaining the App from an App Platform.
(b) Use of the Application on an Apple Device.
(i) If you use the App on an Apple device, then you agree and acknowledge that:
(1) Apple, Inc. bears no duties or obligations to you under the Terms, including, but not limited to, any obligation to furnish you with maintenance and support services;
(2) You will have no claims, and you waive any and all rights and causes of action against Apple with respect to the App or this Agreement, including, but not limited to claims related to maintenance and support services, intellectual property infringement, liability, consumer protection, or regulatory or legal conformance; and
(3) Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
(ii) Please also be advised of the following requested permissions and their purpose when using the App on an Apple device:
(c) Use of the Application on an Android Device.
(d) Use of the Application on a Samsung Device.
(i) If you use the App on a Samsung device, then you agree and acknowledge that:
(1) Samsung, Inc. bears no duties or obligations to you under the Terms, including, but not limited to, any obligation to furnish you with maintenance and support services;
(2) You will have no claims, and you waive any and all rights and causes of action against Samsung with respect to the App or this Agreement, including, but not limited to claims related to maintenance and support services, intellectual property infringement, liability, consumer protection, or regulatory or legal conformance; and
(3) Samsung and Samsung’s subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of the Terms, Samsung will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
4.1 Text Messaging. You agree that FiveStar, its affiliated companies, and necessary third-party service providers and those acting on its behalf may send you operational and informational text (SMS) messages about your use of the App and Services at the mobile phone number you provide us. FiveStar may also send marketing or other promotional messages to the extent that you have provided the appropriate opt-in consent. Messages from FiveStar may include, but are not limited to: operational communications concerning your FiveStar account or use of the App or Services, updates concerning new and existing features on the App or Services, communications concerning promotions run by us or our third-party partners, and news concerning FiveStar and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. Your agreement to receive promotional texts is not a condition of any purchase or service offered by FiveStar. If you change or deactivate the phone number you provide to FiveStar, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems.
4.2 Opt-Out. You may opt out of receiving text messages from FiveStar at any time by replying STOP to any text message from FiveStar. If you opt-out of receiving all text messages from FiveStar, you will not be able to use certain Services without agreeing to receive operational text messages. You may continue to receive text messages for a short period while FiveStar processes your request, and you may also receive text messages confirming the receipt of your opt-out request.
4.3 Push Notifications. When you install our App on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by adjusting your mobile device’s settings.
4.4 Email. You agree that we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
5.1 User Content. “User Content” means any and all information and content about a user that is input into the App or submitted to the Services by or on behalf of a User, including without limitation, content in the user’s profile, images, photos, videos, and other audio, visual, or audiovisual content. You acknowledge and agree that FiveStar is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. FiveStar does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content.
5.2 User Content Restrictions. You agree not to use the App or Services to collect, upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature, as determined by FiveStar in its sole discretion; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third-party (including, e.g., any obligation of non-disclosure or confidentiality).
5.3 User Content Responsibilities. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). FiveStar is not obligated to backup any User Content and You are solely responsible for creating backup copies of your User Content, if you desire.
5.4 Right to Remove Content. You agree that FiveStar has the right to remove any content, including User Content, from the App or Services at any time, with or without cause. FiveStar also has the right to refuse, move, or block access to any material submitted on or through the App or Services, and to establish general practices and limits concerning use of the App and Services. The decision of whether or not to remove content from the App or Services is within FiveStar’s sole and complete discretion. FiveStar has no obligations, contractual or otherwise, to take or refrain from taking any action. Under no circumstances will FiveStar be liable for removing or failing to remove any content.
5.5 License. You hereby grant, and you represent and warrant that you have the right to grant, to FiveStar an irrevocable, perpetual, non-exclusive, royalty-free and fully-paid, worldwide license to use, reproduce, distribute, publicly display and perform, modify, adapt, prepare derivative works of, incorporate into other works, and otherwise exploit your User Content, and to grant sublicenses of the foregoing, for the purposes of providing the App and Services to you, for any specific purpose identified in connection with our solicitation or collection of your User Content, and as otherwise permitted by our privacy policies. For the avoidance of doubt, except where limited by applicable law, this license continues even after you stop using the App or Services, including without limitation with respect to aggregate and de-identified data derived from your User Content and any residual backup copies of your User Content made in the ordinary course of our business. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. Additionally, we may receive User Content from our affiliates and third-party partners, such as information from forms, photos, videos, and other content that you provide at an event that we sponsor, which we may use to pre-populate a profile within the App for you. For this use of User Content, we rely, in the first instance, on the licenses, permissions, and other authorizations obtained by such affiliates and third-party partners and, in turn, provided to us relating to such User Content and, once you have accepted this Agreement by use of the App, upon the foregoing license to User Content.
5.6 Feedback. If you provide FiveStar any feedback or suggestions regarding the App or Services (“Feedback”), you hereby assign to FiveStar all rights in the Feedback and agree that FiveStar shall have the right to use such Feedback and related information in any manner it deems appropriate. FiveStar will treat any Feedback you provide to FiveStar as non-confidential and non-proprietary. You agree that you will not submit to FiveStar any information or ideas that you consider to be confidential or proprietary.
5.7 Other Users. Each user of the App and Services is solely responsible for any and all of such user’s User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and we assume no responsibility for any User Content. Your interactions with other users are solely between you and such users. You agree that FiveStar will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any other user, we are under no obligation to become involved.
5.8 Sharing of User Information and Ratings. The App and Services provide information about users using the App and Services to other users, such as certain profile information, videos uploaded by users, and other information or content shared by users through the App or Services. FiveStar makes commercially reasonable efforts to indicate clearly when a user is using a feature that permits the sharing of information with other users. FiveStar does not and cannot verify all information provided by users. FiveStar has no control over and makes no representations or warranties as to the identity of any user, and FiveStar disclaims, and you release FiveStar from, any and all liability relating thereto. Users should exercise caution and judgment when interacting with other users, in both online and offline interactions, as when interacting with any other individual a user does not know. The App and Services also provide a means by which users may rate other users’ videos (e.g., on a scale of one to five stars) without permitting narrative commentary relating to the video. These ratings are monitored and processed by the App and Services to rank videos (e.g., to display the “Top 5” highest rated videos of the day). We use certain technology to provide for fair rating and ranking systems, including to detect and stop cheating, “hacking,” “gaming,” or employing means of deceptively or unfairly influencing such ratings and rankings. Users who seek to deceptively or unfairly manipulate the rating or rankings systems, as determined by FiveStar in its sole discretion, shall be subject to censure (including disqualification from ratings or rankings), suspension, or termination of their FiveStar Account. FiveStar disclaims, and you release FiveStar from, any and all liability relating to ratings and rankings made by other Users and how such ratings and rankings are processed by the technology used by FiveStar.
6. ACCEPTABLE USE POLICY. The following sets forth FiveStar’s “Acceptable Use Policy”:
6.1 Technological Restrictions. You agree not to use the App or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the App or Services or violate the regulations, policies or procedures of such networks; (e) attempt to or impersonate another user or FiveStar or gain unauthorized access to the App or Services, other computer systems or networks connected to or used together with the App or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the App or Services; or (g) introduce software or automated agents or scripts to the App or Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip, scrape, or mine data from the App or Services.
6.2 Monitoring, Suspension, and Termination. We reserve the right to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content and/or terminating your FiveStar Account in accordance with this Agreement, as provided below) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
You agree to indemnify and hold FiveStar and its affiliates, and its and their directors, officers, members, principals, owners, employees, agents, representatives, contractors, successors, and assigns, harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the App or Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. FiveStar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of FiveStar. FiveStar will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE APP AND SERVICES ARE AT YOUR SOLE RISK. THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. EXCEPT FOR THOSE WARRANTIES MADE AND EXPRESSLY IDENTIFIED AS WARRANTIES BY FIVESTAR, FIVESTAR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) THE APP OR SERVICES; (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE APP OR SERVICES; AND (C) THE ACTS OR OMISSIONS OF USERS THROUGH THE APP OR SERVICES, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. FIVESTAR MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE APP OR SERVICES ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. FIVESTAR ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE APP OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY AND RELEASE.
To the maximum extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event shall FIVESTAR or any of its affiliates or suppliers (including any of its or their partners, officers, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PRINCIPALS, employees, agents, contractors, successors, or assignees) be liable to you for any indirect, special, incidental, exemplary, punitive, or consequential damages, whether arising in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), NOR FOR ANY damages arising from delay, loss of goodwill, loss of or damage to data, interruption in use or availability of data, loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connectiON with (a) the APP OR SERVICES; (b) any products and services offered through the APP OR SERVICES; OR (C) ANY ACTS OR OMISSIONS OF USERS THROUGH THE APP OR SERVICES, even if FIVESTAR or any of its affiliates or suppliers has been advised of the possibility of such damages. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FIVESTAR AND its affiliates AND suppliers (including any of its or their partners, officers, DIRECTORS, MEMBERS, MANAGERS, OWNERS, PRINCIPALS, employees, agents, contractors, successors, AND assignees) TO YOU EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID OR PAYABLE TO FIVESTAR BY YOU UNDER THIS AGREEMENT, AND (B) one hundred U.S. dollars ($100). THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM OR LIABILITY ARISES in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), AND EVEN IF FIVESTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR LIABILITY. THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the App or Services. We may (a) suspend your rights to use the App or Services (including your FiveStar Account) or (b) terminate this Agreement, at any time and for any reason whatsoever, at our sole and complete discretion. Upon termination of this Agreement, your FiveStar Account and right to access and use the App and Services will terminate immediately. You understand that any termination of your FiveStar Account involves deletion of your User Content associated therewith from our Services and databases. FiveStar will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your FiveStar Account or deletion of your User Content. Sections 2, 3.4, 3.5, 4.4, 5, 7, 8, 9, 10, 12, 13, and 14 of this Agreement will survive termination.
11. COPYRIGHT POLICY.
FiveStar respects the intellectual property of others and asks that users of our App and Services do the same. In connection with our App and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials. If you believe that any portion or content of our App or Services unlawfully infringes the copyright(s) in a work and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- Your physical or electronic signature;
- Description of the copyrighted work(s) that you claim has been infringed;
- Description of the material on our services that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good-faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The Designated Copyright Agent for FiveStar is:
1997 Annapolis Exchange Parkway, Suite 200
Annapolis, MD 21401
12. CHOICE OF LAW, ARBITRATION AGREEMENT, JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION.
12.1 Choice of Law. This Agreement is governed by the laws of the State of Delaware, without regard to conflict of law provisions.
12.2 Pre-Arbitration Dispute Resolution. We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party may seek to submit the dispute to arbitration by sending to the other party, by certified mail, a written Notice of Dispute. The Notice of Dispute to us should be sent to our address identified in this Agreement below (“Notice Address”).
12.3 Arbitration Agreement. Except for disputes brought in small claims court, all disputes between you and FiveStar arising out of, relating to, or in connection with the App or Services shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for consumer arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND FIVESTAR AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in this Agreement to the contrary, we agree that if FiveStar makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice of to FiveStar. Information on AAA and how to start arbitration can be found at www.adr.org.
12.4 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
12.5 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the App or Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
12.6 Forum Selection. If the arbitration procedure in this Section is found unenforceable or not to apply for a given dispute, then the parties agree that the proceeding must be brought exclusively in a court of competent subject matter jurisdiction with geographic jurisdiction over Wilmington, Delaware.
13. CONSENT TO RECEIVE NOTICES ELECTRONICALLY.
14.1 Availability. FiveStar will make reasonable efforts to keep the App and Services operational. However, certain technical difficulties, routine maintenance/upgrades and other events outside the control of FiveStar may, from time to time, result in temporary interruptions to the App and Services. In addition, FiveStar reserves the right at any time and from time to time to modify or discontinue (on a temporary or permanent basis) certain functions of the App and/or Services or the entirety of the App and/or Services, with or without notice.
14.2 No Support or Maintenance. You acknowledge and agree that FiveStar will have no obligation to provide you with any support or maintenance in connection with the App or Services.
14.4 Links to Affiliate Websites. The App and Services may contain links to websites controlled or offered by our affiliates or related companies, which may contain terms of service that are different from this Agreement. You should read the terms of service and privacy policies at the destination of each such link, as your accessing the destination of each such link constitutes your agreement to be bound by the applicable terms of service and privacy policies.
14.5 Third-Party Properties. The App and Services may contain links to or refer to physical venues, geographical sites, websites on the Internet, and/or products or services that are not under the control of or maintained by FiveStar, including advertiser websites and popular social media platforms (“Third Party Properties”). The Third Party Properties are not under the control of FiveStar and FiveStar is not responsible for the content of any Third Party Properties. FiveStar does not endorse or make any representations about these Third Party Properties, or any information, materials, or products found thereon. You acknowledge that FiveStar is providing any links or references to such Third Party Properties to you solely as a convenience to you. If you access any of the Third Party Properties linked to by the App or Services, you do so at your own risk. In no event shall FiveStar be liable for any loss, claim, damages, costs, or negative experiences that may arise in connection with your access to or use of any Third Party Properties. Any dealings with third parties (including advertisers) included within the App, Services or Third Party Properties, or participation in promotions offered by third parties, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. FiveStar shall not be responsible or liable for any part of any such dealings or promotions.
14.6 Access and Use Where Prohibited. Access to and use of the App and Services are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation this Section.
14.7 Operation of the App and Services from the United States of America. By accessing and using the App and Services, you acknowledge and agree that FiveStar controls and operates all parts of the App and Services from its offices in the United States of America and that the App and Services are intended for use by users located in the United States of America. Unless expressly stated to the contrary, FiveStar makes no representation that the App or Services are appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the App and Services are solely directed to individuals, companies, or other entities located in the United States of America. FiveStar reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product, or service made on or through the App and Services is void where prohibited. If you access or use the App or Services from outside the United States of America, you are entirely responsible for compliance with applicable local laws and other applicable laws. You may not use any portion of the App or Services in violation of applicable export laws and regulations.
If you access the App or Services from outside the United States, you acknowledge and agree that your information may be transferred to and maintained on computers and servers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. Your consent to the Agreement followed by your submission of such information represents your agreement to the transfer of such information to the United States and the collection, use, and disclosure of your information in accordance with United States law and the FiveStar Privacy Policies.
14.8 Miscellaneous. This Agreement constitutes the entire agreement between you and us regarding the use of the App and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by FiveStar of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and FiveStar. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without FiveStar’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. In the event FiveStar’s performance of this Agreement, or any obligation hereunder, is prevented, restricted, or interfered with by reason of acts of God or of the public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of FiveStar, FiveStar shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference.
15. FIVESTAR CONTACT INFORMATION.
1997 Annapolis Exchange Parkway, Suite 200
Annapolis, MD 21401