Terms and Conditions

(Last Modified November 27, 2023)

PLEASE READ THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) CAREFULLY BEFORE INSTALLING AND USING THE FMERO MOBILE APPLICATION, USING THE FMHERO WEB APPLICATION, OR USING ANY FMHERO WEBSITE, WHICH ARE ALL PART OF AND REFERRED TO COLLECTIVELY AS “THE FMHERO PLATFORM” OR “THE PLATFORM.”

This Agreement constitutes a binding legal contract between You and FMHero, LLC (which may be referred to as “FMHero,” “we,” “us,” or “our”) regarding your use of the FMHERO Platform. BY ACCESSING AND USING ANY PART OF THE FMHERO PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If You are accessing, using, downloading, or installing any portion of the FMHERO Platform on behalf of an employer or other entity, You must have the authority to bind such employer or entity (which shall also be included within and referred to as “You” or “your” in this Agreement), and You hereby represent and warrant to FMHero that You are authorized to enter into this Agreement on behalf of such employer or entity.

THE FMHERO MOBILE APPLICATION AND WEB APPLICATION ARE CURRENTLY FOR USE SOLELY IN THE UNITED STATES OF AMERICA AND ITS TERRITORIES. DO NOT USE THE FMHERO MOBILE APPLICATION OR WEB APPLICATION OUTSIDE OF THE U.S.

IMPORTANT NOTICE – ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THESE TERMS CONTAIN IMPORTANT LEGAL CONSEQUENCES, INCLUDING YOUR AGREEMENT TO ARBITRATE ALL RELATED DISPUTES ON AN INDIVIDUAL BASIS AS SPECIFICALLY PROVIDED IN SECTION 14 (BELOW). ALL DISPUTES WILL BE DECIDED BY A NEUTRAL ARBITRATOR. THIS MEANS YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT AND TO A JURY TRIAL. YOU ARE ALSO WAIVING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ARBITRATION PROCEEDING.

WE MAY CHANGE, REMOVE, OR ADD TO THE TERMS OF THIS AGREEMENT FROM TIME TO TIME. IF A MATERIAL CHANGE IS MADE, WE WILL UPDATE THE “LAST MODIFIED” DATE SHOWN ABOVE AND NOTIFY YOU BY POSTING A NOTICE ON THE FMHERO PLATFORM OR SENDING YOU A NOTIFICATION BY EMAIL. HOWEVER, IT IS YOUR RESPONSIBILITY TO CHECK THESE TERMS EACH TIME YOU ACCESS AND USE THE FMHERO PLATFORM AND TO READ THROUGH ANY CHANGES. IF YOU DON’T AGREE TO THE UPDATED TERMS, STOP USING THE PLATFORM. IF YOU CONTINUE TO USE OUR PLATFORM AFTER WE HAVE NOTIFIED YOU OF THE CHANGES, YOU WILL HAVE ACCEPTED THE UPDATED TERMS, UNLESS PROHIBITED BY APPLICABLE LAW.

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE ANY PART OF THE FMHERO PLATFORM.

Table of Contents

DEFINITIONS

Here are some important terms used in this Agreement:

“Applications” means the Mobile Application and the Web Application.

“Account” means the record of registration that permits a User to access and use the Mobile Application or Web Application. It may take the form of a free technician membership, a paid group membership, a paid wholesaler membership, or a paid equipment owner membership. Your access and use of certain parts of the FMHERO Platform will depend upon the nature of your Account.

“Device” means a computer, mobile phone, tablet, or other technology capable of running the Mobile Application or accessing the Web Application.

“Mobile Application” means:

the FMHero mobile software application, including, without limitation, all software code, algorithms, scripts, interfaces, graphics, displays, text, documentation, application programming interfaces (APIs), and other components;
any API produced and or marketed by FMHero which incorporates or otherwise relates to the Mobile Application and/or data contained, stored, input or published therein (but not including User Content); and
all updates, modifications or enhancements to the items listed in subsection (i) regardless of whether they are accessible by You or not.

“User” means any individual who uses the FMHERO Platform, which may include by downloading, installing, and using the Mobile Application; accessing or using the Web Application; or accessing and using a Website.

“User Content” means the information, data, and images a User inputs, uploads, or otherwise provides while using the FMHero Platform and may include, without limitation, geolocation information, photographs, videos, audio, text, contacts, messages, images, graphics, illustrations, files, equipment information, product information, service information, client information, and financial information, but excludes User Information.

“User Information” means personal information about the User that could be used to identify the User and may include your name, physical address, email address, social media or other account login credentials, telephone number, certification information, Device information such as its type, IP address, service provider, geolocation information and other characteristics.

“Web Application” means:

the FMHero web-based software application and platform, including, without limitation, all software code, algorithms, scripts, interfaces, graphics, displays, text, documentation, APIs, and other components, accessible via a computer Internet browser, and which receives and stores User Content from the Mobile Application and from which the User can schedule events and view data, including User Content, and run reports.
any API produced and or marketed by FMHero which incorporates or otherwise relates to the Web Application and/or data contained, stored, input or published therein (but not including User Content); and

iii. all updates, modifications or enhancements to the items listed in subsection (i) regardless of whether the same are accessible by You or not.

“Website” means any website maintained by or on behalf of FMHero, including but not limited to https://fmhero.com.

OWNERSHIP OF THE FMHERO PLATFORM AND INTELLECTUAL PROPERTY

You are not obtaining any ownership or rights in any portion of the FMHERO Platform except for the right to use it strictly in accordance with this Agreement. You acknowledge and agree that except for third party software, content, and services, the Platform, and all copyrights, patents, trademarks, trade secrets, and other intellectual property rights associated with it are FMHero’s property. FMHero reserves and retains all rights that it has not expressly granted to You in this Agreement.

THE FMHERO PLATFORM DOES NOT OFFER REGULATORY, ENVIRONMENTAL, OR LEGAL ADVICE.

THE FMHERO PLATFORM IS A TOOL TO ASSIST YOU IN YOUR EFFORTS TO MAINTAIN RECORDS OF YOUR SERVICE, MAINTENANCE, AND REPAIR OF EQUIPMENT AND COMPLIANCE WITH RELATED REGULATORY REQUIREMENTS. HOWEVER, IT IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR THE SERVICES OF TRAINED PROFESSIONALS IN ANY FIELD, INCLUDING, BUT NOT LIMITED TO, REGULATORY, ENVIRONMENTAL, AND LEGAL COMPLIANCE MATTERS. YOU SHOULD REGULARLY CONSULT A TRAINED PROFESSIONAL IN ALL MATTERS RELATING TO THE REGULATORY, ENVIRONMENTAL, AND LEGAL ISSUES RELATING TO YOUR OBLIGATIONS AND ACTIVITIES. YOU AGREE THAT YOU ARE NOT RELYING UPON THE FMHERO PLATFORM OR ANY INFORMATION CONTAINED IN OR MADE AVAILABLE BY FMHERO THROUGH THE PLATFORM TO ENSURE YOUR COMPLIANCE WITH ANY REGULATORY, ENVIRONMENTAL, OR LEGAL OBLIGATIONS. UNDER NO CIRCUMSTANCES SHALL FMHERO HAVE ANY LIABILITY TO YOU WITH RESPECT TO YOUR VIOLATION OF OR OTHER FAILURE TO COMPLY WITH ANY APPLICABLE LAWS OR REGULATIONS.

THE FMHERO PLATFORM PRIVACY POLICY

In addition to all the terms of this Agreement, your use of the FMHero Platform is subject to the terms of our Privacy Policy, which is incorporated into this Agreement by this reference. Our Privacy Policy explains and governs how we collect, maintain, and use personal information, including User Information, on the FMHERO Platform. By accepting this Agreement, You acknowledge You have read and understood our Privacy Policy.

USER REGISTRATION

To use the Mobile Application or the Web Application, You must register for an Account and create a profile. Based on your class of User and scope of access, this may be a free or paid Account. To register, you must be at least eighteen (18) years old. As part of the registration and account creation process, you will create login credentials by selecting a password and providing an e-mail address or, at your option, by linking another of your accounts, such as your Apple, Facebook or Google accounts. When you register for and use an Account, you must always do the following:

Be truthful, accurate, and complete in the information you provide.
Do not claim to be someone You are not.
Keep your Account secure. Do not share your username, password, or other login credentials with anyone or allow anyone else to use your Account.
You are solely responsible for all activity that occurs under your Account.
Notify us of any unauthorized access to or use of your Account by sending an email to [email protected].

Once You are registered for either a free or a paid membership Account, your access to the various features and functionalities on the Platform will be determined based on the nature of your Account. FMHero may add, remove, or change the Platform features and functionality from time to time in its sole discretion with or without notice.

Push Notification Permission. Registered Users may through an Account interface may request and give permission to FMHero to send push notifications to the User’s Device. By activating this feature, You accept all responsibility and assume all risk associated with granting such permissions, or those permissions which may later be integrated into the Platform.

MOBILE APPLICATION LICENSE AND RELATED TERMS

If you register for an Account that gives you the right to use the Mobile Application, FMHero hereby grants You a revocable, non-exclusive, non-transferable, personal, royalty-free, limited license to download, install and use the Mobile Application in the United States of America and its territories on any compatible Device strictly in accordance with this Agreement and any applicable Usage Rules. FMHero reserves all rights not expressly granted to You under this license.

FMHero is solely responsible for any maintenance or support that may be required regarding the Mobile Application, as set forth herein. You hereby acknowledge that the mobile application platform from which you have downloaded the Mobile Application has no obligation whatsoever to furnish any maintenance or support services with respect to the Mobile Application.

The processing of payments, if available on the Mobile Application, will be handled by a third-party payment processor. The third-party payment processor has its own terms of service or other agreements with which you must agree before making or receiving payment through the Mobile Application. You understand and agree that the processing of payments is handled by a third-party other than FMHero, which shall have no liability or obligation to You relating to such payments.

RESTRICTIONS ON USE OF THE FMHERO PLATFORM.

The FMHero Platform is for the use of authorized Users only. By using the FMHero Platform, You agree to comply with the following rules and restrictions:

Except as necessary to use the Platform for its intended purpose, You may not copy, publish the contents of, publicly display, or distribute the Platform, or any part of it.
You may not create derivative works of the Platform or use the Platform for creating any product, service, or software that is directly or indirectly competitive with, or in any way a substitute for any service, product, or software of FMHero.
Do not access and use the FMHero Platform if You are competitor or an owner or employee of a competitor of FMHero.
Do not use the Applications for equipment or facilities located outside of the United States of America and its territories.
Do not post, submit, or transmit any false, fictitious, or misleading information or content.
Do not impersonate any other person or organization.
Do not collect, solicit, or attempt to obtain personal information of other Users without their explicit consent.
Do not remove, alter, or obscure any proprietary notice, including notices of copyright, trademark, or other intellectual property rights.
Do not circumvent, disable or otherwise interfere with any Platform software or security-related features.
Do not do anything that interferes with or may disrupt, damage, disable, or overburden the proper working of the Platform.
Do not decompile, reverse engineer, disassemble, or attempt to derive the source code or architecture of, or decrypt the whole or any portion of the Mobile Application or Web Application.
Do not post or transmit any content that is or may be considered unlawful, pornographic, sexually suggestive, hateful, harassing, threatening, defamatory, discriminatory, abusive, or otherwise objectionable.
Do not do anything that may cause or expose FMHero or other Users to any type of harm
Do not post or transmit User Content containing any virus or other malware
Do not engage in, assist in, or encourage any conduct that violates any local, state, Federal, or international law. Unlawful uses of the Platform may be investigated and reported to the appropriate authorities, and appropriate legal action may be taken against You, including without limitation, civil actions, criminal prosecution, and injunctive remedies.
Do not use the Applications for any purpose for which they are not designed or intended;
You agree to cooperate fully with FMHero in the investigation of any suspected or actual activity that may violate this Agreement.

THIRD PARTY CONTENT, SERVICES, SOFTWARE AND USAGE RULES

The Platform may contain links to third-party websites, resources, and advertisers or otherwise permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by government agencies, public record repositories, advertisers, publishers, content partners, marketing agents, vendors, blockchain, and other third parties, including in the form of videos, “Ads” and/or APIs offered by such parties or other related vendors (“Third-Party Content and Services”). FMHero does not control, endorse, sponsor, recommend or otherwise accept responsibility for any of this Third-Party Content and Services. Because we are not responsible for these outside resources, their contents or privacy practices, You should review the terms of use and privacy practices of all third parties and direct any questions or concerns regarding any Third-Party Content and Services to the appropriate third party provider of such content or service.

The FMHero Platform may utilize or include third-party software that is subject to open source and third-party license terms (“Third-Party Software”). You acknowledge and agree that your right to use Third-Party Software as part of the Platform is subject to, and governed by, the terms and conditions of the third-party license to such Third-Party Software. If there is any conflict between those terms and conditions and this Agreement, the Third-Party Software terms and conditions shall control with regard to your use of the relevant Third-Party Software only.

To the extent You are using the Mobile Application, any applicable usage rules of any mobile platform provider, including the Google Play Developer Distribution Agreement (as amended February 26, 2018 or otherwise) or any similar rules promulgated by other app store providers, such as Apple, Inc., (“Usage Rules”) are incorporated herein and apply to your use of the Mobile Application. Any provisions of this Agreement that are less restrictive than applicable Usage Rules in the iTunes App Store or Google Play Terms of Service shall be superseded by the more restrictive terms.

USER CONTENT AND FEEDBACK

The Applications allow registered Users to create, document and manage an inventory of facilities management equipment and cylinders and to record information relating to their maintenance, service and repair. Users may input photographs, videos, notes, messages, contacts, text, illustrations, files, images, graphics, comments, audio, videos, financial information, legal information and multiple characteristics and commercial attributes of inventoried items, including, but not limited to make, model, serial numbers, capacities, locations, and other characteristics. YOU ARE SOLELY RESPONSIBLE FOR THE USER CONTENT YOU SUBMIT OR TRANSMIT OVER THE PLATFORM. BY SUBMITTING USER- CONTENT—INCLUDING BUT NOT LIMITED TO THE GEOLOCATION(S) OF CLIENT FACILITIES AND EQUIPMENT, OTHER ATTRIBUTES OF EQUIPMENT AND RESOURCES—TO THIS PLATFORM, YOU AGREE THAT IT MAY BE VIEWED AND ACCESSED BY FMHERO AND OTHER USERS. THERE IS NO RIGHT OR GUARANTEE OF CONFIDENTIALITY FOR USER CONTENT.

You represent and warrant to FMHero that if you upload, post or submit any User Content or User Information on the Platform, You have all the necessary legal rights to do so and your User Content and User Information will not violate any law or infringe upon the rights of any person. You hereby grant to FMHero a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license of the maximum term permitted by law to copy, access, prepare derivative works of, remove, retain, process, analyze, display, upload, perform, distribute, store, modify and otherwise use without limitation the User Content in any manner as within FMHero’s, including its successors’ in interest, sole discretion. FMHero may disclose User Content to a third party, including but not limited to a governmental agency, upon receipt of any lawful request from such third party.

FMHERO SHALL HAVE THE RIGHT BUT NOT THE OBLIGATION TO DELETE, DISABLE OR OTHERWISE REMOVE ANY USER CONTENT FROM THE PLATFORM THAT IT DEEMS VIOLATIVE OF THIS AGREEMENT OR ANY RULE OF LAW, REGULATION OR PROTOCOL, OR WHILE THE APPLICATIONS ARE STILL IN BETA, IN ITS SOLE DISCRETION.

Feedback. If You communicate any ideas, suggestions, or comments about the Platform or FMHero’s services, including but not limited to inventions, improvements, changes, additional features, or other enhancements to the Platform, or any part of the Platform, (collectively, “Feedback”), You agree that FMHero shall own all right, title, and interest in the Feedback, even if You have designated the Feedback as confidential or proprietary, and FMHero shall be entitled to use the Feedback without restriction, without attributing the Feedback to You, and without payment of any compensation to You. You hereby irrevocably assign all right, title, and interest in and to the Feedback to FMHero and agree to provide such assistance as we may require to document, perfect, and maintain our ownership and rights in the Feedback.

TERMINATION AND SUSPENSION.

You may terminate your Account at any time by following instructions within the Mobile Application or Web Application, as applicable, to terminate the account. FMHero shall have no obligation to retain, preserve or maintain your User Content following the termination of an Account.

If You choose not to renew or fail to timely renew your paid or free membership registered with www.fmhero.com, You may lose access to those areas and features of the Platform associated with your Account and FMHero may delete any information or data associated therewith, including User Content stored on the Platform. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights granted to You or license hereby granted to You shall terminate automatically, without any notice or other action by Company.

FMHero may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement, all or a portion of the Platform, your Account, your usage of and access to all or any portion of the Platform, and any rights or license rights afforded to You hereunder with or without prior notice.

Upon the termination of this Agreement, You shall cease all use of the Platform and, if applicable, uninstall the Mobile Application.

FMHero shall not be liable to You for any termination or suspension of your Account or for blocking your access to the Platform or any User Content that may reside there.

Any suspension or termination of your Account shall not affect your obligations to FMHero under this Agreement. The provisions of this Agreement, which by their nature survive the suspension or termination of your account and access of the Application, including, but not limited to the rights and licenses that You have granted hereunder, indemnities, releases, disclaimers, limitations on liability, and provisions related to choice of law.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL FMHERO, ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, DISTRIBUTION PARTNERS, VENDORS, ADVERTISERS, MOBILE APPLICATION PLATFORM PROVIDER, OR THEIR RESPECTIVE RELATED COMPANIES (“FMHERO PARTIES”) BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE PLATFORM, SERVICES, OR THIS AGREEMENT. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM IS TO STOP USING THE PLATFORM. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE PLATFORM OR ANY LINKS ON THE PLATFORM, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE PLATFORM, AND ALSO TO PHYSICAL DAMAGES OR INJURY SUFFERED AS A RESULT OF ANY INFORMATION, ADVICE, OR THE LIKE RECEIVED BY YOU EITHER DIRECTLY OR INDIRECTLY FROM THE PLATFORM. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY, USER CONTENT, OR CONDUCT OF A THIRD-PARTY ON THE PLATFORM, OR ANY OTHER USERS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL FHMERO PARTIES’ CUMULATIVE LIABILITY TO YOU EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM, OR IN ANY WAY RELATED TO THIS AGREEMENT, MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE FMHERO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE FMHERO PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

USER INDEMNIFICATION

You hereby agree to indemnify FMHero, and its officers, directors, members, employees, agents, affiliates, successors, and assigns and hold them harmless from and against any and all liabilities and costs, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim arising out of: (i) your breach of any terms of this Agreement; (ii) all actions conducted or undertaken by your Account; (iii) your User Content; (iv) your breach of any of your representations or warranties made in this Agreement; (v) your negligence, gross negligence or willful misconduct; or (vi) your violation or failure to comply with any law, regulation, or rule relating to the maintenance, repair, or service of any equipment or facility.

TERMINATION AND SUSPENSION

Upon the termination of this Agreement, You shall cease all use of the Platform and, if applicable, uninstall the Mobile Application.

FMHero shall not be liable to You for any termination or suspension of your Account or for blocking your access to the Platform or any User Content that may reside there.

LEGAL DISPUTES; MANDATORY ARBITRATION; JURY TRIAL AND CLASS ACTION WAIVERS.

14.1 Pre-Arbitration Dispute Resolution. FMHero is always interested in attempting to resolve disputes amicably and efficiently. We believe most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing us at info@fmhero.com. If such efforts prove unsuccessful, a party who intends to seek arbitration under this Agreement must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be sent to legal@fmhero.com FMHero, LLC, ATTN: LEGAL,14955 W Bell Rd #8604, Surprise, AZ 85374-8266 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the claim is not resolved within sixty (60) calendar days after the Notice is received, you or the Company may commence an arbitration proceeding.

14.2 Mandatory Arbitration of Legal Disputes. YOU HEREBY AGREE THAT ALL DISPUTES RELATING TO THIS AGREEMENT OR THE PLATFORM, INCLUDING WHETHER A CLAIM IS SUBJECT TO ARBITRATION, SHALL BE SUBMITTED TO ARBITRATION IN MARICOPA COUNTY, ARIZONA, BEFORE ONE ARBITRATOR IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR MAY AWARD EQUITABLE RELIEF AND MAY ASSESS COSTS, INCLUDING ATTORNEYS’ FEES ACTUALLY INCURRED, IN FAVOR OF THE PREVAILING PARTYCOMPANY ONLY IN SUCH MANNER AS THE ARBITRATOR DEEMS FAIR AND EQUITABLE. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING UPON ALL PARTIES, AND JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.

14.3 Waiver of the Right to a Jury Trial. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE RELATING TO THIS AGREEMENT OR THE PLATFORM.

14.4 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND FMHERO AGREE THAT ALL DISPUTES RELATING TO THIS AGREEMENT OR THE PLATFORM MAY BE FILED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. UNLESS BOTH YOU AND FMHERO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS IN A SINGLE ARBITRATION AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF AN INDIVIDUAL PARTY WITH RESPECT TO THAT PARTY’S INDIVIDUAL CLAIM(S). THIS MEANS YOU MAY NOT INITIATE OR JOIN ANY CLASS ARBITRATION OR CLASS ACTION IN COURT.

CHOICE OF LAW

This agreement and any dispute related to it or the platform is governed by and shall be construed according to the laws of the State of Arizona, without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

MISCELLANEOUS.

16.1 Export Control. You may not use or otherwise export or re-export the Applications except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.

16.2 Additional Terms and Modifications. FMHero reserves the right to provide You with operating rules or Additional Terms that may govern your use of the Application generally, specifically, in whole, in part, or any combination thereof (“Additional Terms”). Any Additional Terms that we may provide to You will be incorporated by reference into this Agreement. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control. Modifications to this Agreement or Additional Terms will be effective immediately upon notice, either by posting on the Applications, posting on the Website, posting on the app store page for the Mobile Application, by sending you an email or conventional mail, or any other method allowed for by this Agreement. It is your responsibility to review this Agreement and the Platform from time to time for any changes or Additional Terms. Your access and use of any of the Platform following any modification of this Agreement or the provision of Additional Terms will signify your assent to and acceptance of them. If you object to any subsequent revision to the Agreement or to any Additional Terms, You may terminate your Account as provided above or, if You do not have an Account, your only recourse is to immediately discontinue use of the Platform.

16.3 Severability. If any term or provision of this Agreement is held to be legally unenforceable by an arbitrator or court of competent jurisdiction, the remainder may still be enforced as if this Agreement were written without the offending term or provision.

16.4 Integration. This Agreement, together with including the Privacy Policy, Copyright Policy, and any Additional Terms, constitutes the full agreement between You and FMHero concerning the Platform, and they supersede all prior representations, understandings, and promises whether written or oral. This Agreement may not be amended except as may otherwise be provided for herein.

16.5 Assignment. You may not assign this Agreement or any rights or obligations herein without the prior written consent of FMHero, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. FMHero may assign this Agreement and delegate it obligations freely without notice to You.

16.6 Waiver. FMHero may waive its rights under this Agreement only in an explicit written notice signed by an officer of the company. FMHero’s failure to exercise any right or require performance of an obligation under this Agreement, or delay in doing so, shall not affect its ability to exercise such right or require such performance at any time thereafter, nor shall any waiver of a breach constitute a waiver of any subsequent breach.

16.7 Headings. The section titles or headings in this Agreement are for convenience only and have no legal or contractual effect.

16.8 No partnership or joint venture. Nothing contained in this Agreement shall be deemed to constitute either party being a partner, joint venturer or employee of the other party for any purpose.

16.9 Events beyond FMHero’s Control. FMHero shall not be liable for any failure or delay in the performance of any of its obligations under this Agreement, or your inability to access the Platform or any User Content if such failure or delay is caused, directly or indirectly, by forces beyond FMHero’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, pandemic, civil unrest, interruptions of transportation or communications (including third party integrations related to social media, server malfunctions, or any other mechanical, electronic, or communication error), power outages, supply shortages or the failure of any third party to perform any commitment relating to the production or delivery of any equipment or material required for FMHero to perform its obligations hereunder.

16.10 Complaints. You may submit any complaints or comments regarding the Platform to FMHero at: [email protected].

If you are a California resident, under California Civil Code Section 1789.3, you may contact us [email protected] in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

16.11 Third Party Beneficiary. You hereby acknowledge and agree that an applicable mobile app platform provider, such as Google or Apple, and its subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, it 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.

16.12 Notices. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. FMHero may give notice to You by any one or more of the following means: a general notice posted on the Applications, posting on the Website, posting on the mobile app store page for the company or the Mobile Application, by e-mail to your e-mail address on record for your Account, or by written communication sent by first class mail or pre-paid post to your address on record for your Account. This notice shall be deemed to have been given immediately after mailing, emailing or posting. You may give notice to FMHero at any time by a written communication delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the following address: FMHero, LLC, ATTN: LEGAL, 14955 W. Bell Rd, #8604 Surprise, AZ 85374-9998 and [email protected]. Your notice shall be deemed given when actually received by FMHero.

COPYRIGHT POLICY

If You believe that your work has been copied or used in a way that constitutes copyright infringement, please provide written notice to FMHero’s copyright agent (see contact information below) the following information:

1. A copy of the copyrighted work that you claim has been infringed, or a description of the copyrighted work, including the URL (i.e., web page address) of the location where the copyrighted work exists;
2. Identification of the URL or other specific location on the Application where the material that you claim is infringing is located;
3. 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;
4. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf;
5. your address, telephone number, and e-mail address; and
6. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

FMHero reserves the right to remove or disable access to any content or materials for which a proper and effective notice of claimed infringement, as outlined above, has been received. If FMHero removes or disables access to content or material for which it has received a notice of claimed infringement, it will promptly notify the User who uploaded, posted, or submitted the allegedly infringing content or material and afford them the opportunity to provide a counter-notice as set forth below.

If You have been notified that any content or materials you have uploaded, posted, or submitted to the FMHero Platform has been removed or its access disabled based on FMHero’s receipt of a notice of claimed infringement, and You believe your content or materials are not infringing and have been removed or disabled by mistake, please provide a written Counter-Notification to FMHero’s Copyright agent with the following information:

A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
Your name, address and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, and that you will accept service of process from the person who provided notification of the alleged infringement.
Your physical or electronic signature.

Notices of claimed copyright infringement and counter-notifications should be sent to:

By mail:

Sean Garrison, Esq.
Bacal & Garrison Law Group
6991 E Camelback Rd., Suite D-102
Scottsdale, AZ 85261

By email: [email protected]