Last updated: July 15, 2020
My Lemonade Stand, PBC d/b/a .Mighty (“Mighty,” "we,” “us,” or“our") is the operator of the Mighty service available at www.mighty.business and other associated websites and mobile applications that link to this Policy, which provide an interactive, e-commerce platform through which kids can be their own CEOs and sell products (collectively the "Services"). The following Terms of Service (the “Terms”) serve as an agreement between you and us and set forth the terms and conditions by which you may access and use the Services. The Terms apply to all users of the Services, including users who create and curate shops (“Shop CEOs”),buyers, and other users and visitors to the Services. For purposes of these Terms, we refer to all users collectively (including creators) as “you,” “your,” or “users.” If you are under age 18, you may only use the Services with the consent of your parent or legal guardian. Please be sure your parent or legal guardian has reviewed and discussed these Terms with you.
If you are a parent or guardian of a user under the age of 18, you acknowledge and agree that you have the authority to provide this consent on behalf of such user, and that you provide consent for such user to use the Services.
PLEASE READ THESE TERMS CAREFULLY, AS THEY GOVERN YOUR USE OF THE SERVICES. PLEASE ALSO FULLY REVIEW SECTION 14 “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” AS THIS PROVISION WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING SECTION 14, PLEASE DO NOT USE THE SERVICES.
We reserve the right, in our sole discretion, to change or modify portions of these Terms at any time. If we do this, depending on the nature of the change, we will post the changes on the Services and indicate the new effective date at the top of the document. Depending on the type of change, we may also provide you other reasonable means of notification as required by applicable law. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the newTerms. In addition, when using certain Services, you will be subject to any additional terms applicable to such Services that may be posted on the Services from time to time.
Account Registration. You may be required to register in order to access and use the Services. If you register, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted during registration. You are fully responsible for any and all activities that occur under your password or account, and it is your responsibility to ensure that your password remains confidential and secure. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security using the contact information contained at the end of this document, and (b) ensure that you exit from your account at the end of each session when accessing the Services. We will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Services. We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of theServices. We have no obligation to retain your account or User Content (as defined below) for any period of time beyond what may be required by applicable law, or as otherwise in our discretion.
To help ensure that the Services remain a safe and fun place for all users, users are expected to comply with the following rules. You agree that you will not use the Services to:
engage in any conduct, or post or distribute any content, that is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, discriminatory, racially hateful, ethnically or otherwise objectionable, restricts or inhibits any other person from using or enjoying the Services, or which may expose us or any users to any harm or liability of any type
post any content that is deliberately designed to provoke or antagonize people, especially trolling and bullying, harm, hurt, scare, distress, embarrass, or upset people
post or distribute any content that (i)infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,”“pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation
scrape, access, monitor, index, frame, link, or copy any Content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any API provided or approved by us
breach the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services
interfere with or disrupt the Services or servers or networks connected to the Services
violate any applicable local, state, national or international law, or any regulations having the force of law
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity
access or use the Services if you are not fully able and legally competent to agree to these Terms or are not authorized to use the Services by your parent or legal guardian.
We reserve the right, at any time and without notice, to investigate and take appropriate legal action against anyone who, in our sole discretion, violates these Terms, including without limitation, removing the offending Content from the Services, suspending or terminating the account of such violators, and/or reporting them to law enforcement authorities.
Services Content, Software and Trademarks. You acknowledge and agree that the Services may contain code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, features, or other materials (“Content”) that are the property of Mighty and/or its affiliates and that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Mighty, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Content.
Subject to the Terms, you are hereby granted anon-exclusive, limited, non-transferable, non-sub licensable, revocable, worldwide license to access and use the Services, and to access the Content solely for your personal, non-commercial use. Mighty reserves all rights not expressly granted herein in the Services and the Content. You acknowledge and agree that Mighty may terminate this license at any time for any reason or no reason.
The “My Lemonade Stand” and “Mighty” name and logos are trademarks and service marks of Mighty (collectively the “MightyTrademarks”). Other product and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Mighty. Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Mighty Trademarks displayed on the Services, without our prior written permission in each instance.
Notice of Intellectual Property Infringement. In accordance with the Digital Millennium CopyrightAct (DMCA) and other applicable law, it is the policy of Mighty, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Services, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section512(c)(3) to confirm these requirements):
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of your copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material you claim is infringing is located on the Services (providing us with website URL is the quickest way to help us locate content quickly);
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Our copyright agent can be reached as follows: Mighty Copyright Agentc/o ZwillGen PLLC email@example.com 1-202-296-3585
You acknowledge that Mighty does not have an obligation to pre-screen Content, but that Mighty and its designees will have the right in their sole discretion to refuse or remove any Content that is available via theServices, or to edit Content in any way. Without limiting the foregoing, Mighty and its designees will have the right, in their sole discretion, to remove anyContent that violates these Terms or is deemed by Mighty to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information relevant to the Services(“Submissions”), provided by you to Mighty or its partners are non-confidential and Mighty and its partners will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
The Services may provide, or third parties may provide, links or other access to third-party sites and services. Mighty has no control over such sites and services and Mighty is not responsible for and does not endorse such sites and services. You further acknowledge and agree that Mighty will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or services. Any dealings you have with third parties while using the Services are between you and such third parties, and you agree that Mighty is not liable for any loss or claim that you may have against any such third party.
To the fullest extent permitted by law, you agree to release, indemnify, and hold Mighty and its partners and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of theServices, any Content, your violation of these Terms, or your violation of any rights of another. If you are a California resident, you waive California CivilCode Section 1542, which says: “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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHER WISE EXPRESSLY PROVIDED HEREIN, MIGHTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, AND NON-INFRINGEMENT.MIGHTY MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF THE SERVICES, CONTENT,USER CONTENT, OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, BE ACCURATE, COMPLETE, OR UP TO DATE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MIGHTY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL,EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO,DAMAGES FOR LOSS OF GOODWILL OR OPPORTUNITY, USE, DATA OR OTHER INTANGIBLE LOSSES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EVEN IF MIGHTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I)THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR TO YOUR ACCOUNT DUE TO YOUR FAILURE TO KEEP YOUR ACCOUNT CREDENTIALS SECURE AND CONFIDENTIAL; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (V) PERFORMANCE OR NON-PERFORMANCE; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL MIGHTY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MIGHTY IN THE LAST TWELVE (12) MONTHS, IF ANY, OR, IF GREATER,ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. FOR EXAMPLE, NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OR OUR EMPLOYEES,AGENTS, OR SUBCONTRACTORS. HOWEVER, IFYOU ARE A RESIDENT OF NEW JERSEY, THESE LIMITATIONS WILL APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OFTHE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TODISCONTINUE USE OF THE SERVICES.
You agree that you are solely responsible for your interactions with any other third party arising out of your use of the Services, including, by way of example and not limitation, any carrier, copyright owner, or other user, and Mighty and our affiliates will have no liability or responsibility with respect thereto. Mighty reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of theServices.
These Terms are governed by the laws of the State of California, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to these Terms are the state courts located in Los Angeles County, California, or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Application. You and we agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled“Mandatory Arbitration and Class Action Waiver” is intended to be interpreted broadly and governs any and all disputes between you and us. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;(ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute with us before taking any formal action by contacting us using the contact information provided below in Section 17. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (seethe subsection entitled “Exception” below), you and we agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and we agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
Binding Arbitration. If we do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), as long as the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS ComprehensiveArbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions.
Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and maybe entered as a judgment in any court of competent jurisdiction.
Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of theDemand for Arbitration, plus the appropriate filing fee, to JAMS, and (iii) Send one copy of the Demand for Arbitration to us at the contact information provided below in Section 17.
When you initiate arbitration against us, you are required to pay up to $250 of the Filing Fee to initiate arbitration. To the extent the filing fee for the arbitration exceeds that amount, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the UnitedStates, arbitration shall be initiated in California, United States, and you and us agree to submit to the personal jurisdiction of any federal or state court in California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and we expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets—but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. county (or parish) of your residence or in California, either party may elect to have such dispute adjudicated in such small claims court.Such election can be made by either party even after the other party initiates an arbitration. In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless it is unwilling to do so)and not the arbitrator or JAMS.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at firstname.lastname@example.org. This notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) the Effective Date of these Terms; or (ii) your first date that you used the Services, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with this section entitled “MandatoryArbitration and Class Action Waiver.” If you opt out of these arbitration provisions, we also will not be bound by them.
Changes to This Section. We will provide thirty (30) days' notice of any material changes to this Section by posting notice on the Services or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th)day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the Section entitled“Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Services.
Survival. This Mandatory Arbitration and Class Action WaiverSection shall survive any termination of your use of the Services.
You agree that we, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any Content within the Services, for any reason, including, without limitation, if we believe that you have violated these Terms. We may also in our sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. Further, you agree that Mighty will not be liable to you or any third party for any termination of your access to the Services. If you are blocked by Mighty from accessing the Services (including blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
These Terms constitute the entire agreement between you and Mighty and govern your use of the Services. The failure ofMighty to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You may not assign these Terms without the prior written consent of Mighty, but Mighty may assign or transfer theseTerms, in whole or in part, without restriction. The section titles in theseTerms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Under no circumstances shall Mighty be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control. You agree that you will not export or re-export, directly or indirectly, the Services or any Content, to any country for which the United States or any other relevant jurisdiction required any export license or other governmental approval at the time of export without first obtaining such license or approval. Under California Civil Code Section 1789.3, California users of theServices receive the following specific consumer rights notice: The ComplaintAssistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at http://www.dca.ca.gov/about_dca/contactus.shtml.
For questions about these Terms, please contact us via e-mail at email@example.com or via mail at Mighty, attn: Privacy Info, 45 Main St. Suite 848 Brooklyn, NY 11021.