Effective as of November 15, 2021
- 1. LICENSE GRANT: This TOU provides you with a personal, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to use the MCM Website solely for your personal use and conditioned on your continued compliance with this TOU. You may print materials and information from the MCM Website solely for your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. Notwithstanding the foregoing, you may not (i) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the MCM Website (or any part thereof) in any manner not expressly permitted by this TOU; (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the MCM Website (or any part thereof); (iii) access, link to, or use any source code from the MCM Website (or any part thereof); (iv) erase or remove any proprietary or intellectual property notice contained in or on the MCM Website (or any part thereof or materials therefrom); (v) tamper or interfere with the proper functioning of any part, page or area of the MCM Website and any and all functions and services provided by MCM, including any manner that could damage, disable, overburden or impair the MCM Website; (vi) submit any purposely inaccurate information, commit fraud, or submit falsifying information in connection with your User Account (as defined herein); or (vii) attempt to scan or test the security or configuration of the MCM Website or to breach security or authentication measures without proper authorization.
- 2. USER OBLIGATIONS: By accessing or using the MCM Website, you also agree to be responsible for and to abide by all applicable local, state, national, and international laws, regulations, rules, and guidelines with respect to your use of the MCM Website. In addition, you agree to assume all responsibility for compliance with this TOU and for your use, and the results of your use, of the MCM Website.
- 3. PROPRIETARY RIGHTS: The contents of the MCM Website, including all software, designs, text, graphics, images, photographs, illustrations, audio and video materials, artwork, databases, user interfaces, visual interfaces, sounds, artwork, computer code (including html code), products, information, and documentation, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the MCM Website, unless otherwise indicated, are owned, controlled, and licensed by MCM. Any rights granted hereby are expressly licensed. MCM does not grant any implied right to you or any other person and does not transfer or assign any ownership or intellectual property interest or title in or to the MCM Website (or any part thereof) to you or anyone else. The MCM Website is Copyright © 2021 MIDLAND CREDIT MANAGEMENT, INC., and/or its licensors. MIDLAND CREDIT MANAGEMENT, MCM, MCM Logo Design and all other names, logos, and icons identifying MCM and its products and services are proprietary trademarks of MCM, and any use of such marks, including, without limitation, domain names or account identifiers, without the express written permission of MCM is strictly prohibited. Other product and company names mentioned herein or on the MCM Website may be the trademarks and/or service marks of their respective owners.
- 5. LINKS TO OTHER SITES: MCM may provide links, in its sole discretion, to other websites or online social networks (or pages) for your convenience in locating or accessing related information, products, and services. These sites, networks, and pages have not necessarily been reviewed by MCM and are maintained by third parties over which MCM exercises no control. Accordingly, MCM expressly disclaims and shall not have any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites, networks, or pages. Moreover, these links do not imply an endorsement with respect to any third party, any website, network, or page, or the products or services provided by any third party.
- 6. AVAILABILITY AND ACCURACY OF THE MCM WEBSITE: You agree that from time to time MCM may modify or remove the MCM Website, including any features therein, for indefinite periods of time at any time, without notice to you. While MCM uses reasonable efforts to keep the MCM Website accessible, the MCM Website may be unavailable from time to time for any reason including, without limitation, routine maintenance. Although MCM strives for accuracy in all elements of the MCM Website, they may contain errors, inaccuracies or omissions. MCM reserves the right to correct any errors, inaccuracies or omissions and to change or update information if any information on the MCM Website is inaccurate at any time without prior notice. Although MCM makes reasonable efforts to prevent tampering with the MCM Website, MCM does not guarantee that MCM’s efforts will always be successful. MCM is not responsible for your reliance on any information or content found on the MCM Website, which for the avoidance of doubt includes any information related to a listing or practice, and MCM makes no representations about the accuracy, reliability, completeness, or timeliness of the MCM Website, or information thereon, and is not responsible for the conduct, whether online or offline, of any person using the Website, including any person’s violation of this TOU.
- 7. ACCESSING ACCOUNT MANAGEMENT FEATURES ON THE MCM WEBSITE:
If you violate any of these limitations, MCM may terminate any or all of your access to your User Account on the MCM Website, and you may lose access to the account management features on the MCM Website. If MCM terminates your User Account, you may not log in to the account management features on the MCM Website unless MCM formally invites you. If you commit fraud or falsify information in connection with your use of the MCM Website in or under your User Account, your User Account may be terminated immediately and MCM reserves the right to hold you liable for any and all damages that MCM suffers, to pursue legal action through relevant local, national and international law enforcement authorities and to notify your Internet Service Provider of any fraudulent activity MCM associates with you or your use of the MCM Website.
- 8. ELECTRONIC COMMUNICATIONS: When you use the MCM Website, including by providing an electronic mail address or telephone number for any reason, or send e-mails, text messages, or other communications from your desktop or mobile device to MCM or its affiliates, you may be communicating with us electronically. By doing so, you consent to receive communications from MCM or its affiliates electronically, such as e-mails, texts, mobile push notices, or notices and messages on the MCM Website site, or through any other means from MCM or its affiliates, and agree that it is not inconvenient for you to receive such electronic communications from MCM or its affiliates at any time MCM may send them, or at any place associated with such email address, telephone number, or other similar device you used to communicate with us via electronic means. If you later determine that a particular time or place is no longer convenient to receive electronic communications from MCM, you further agree to opt out of such electronic communications as described in this paragraph as an appropriate remedy. You can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that you are the sole user of any electronic mail account, telephone number, or electronic device that you use to communicate with MCM or its affiliates, that you have sole access to that account or device, and that the e-mail address associated with that electronic mail account is not furnished or owned by your employer. If you do not wish to receive electronic communications from MCM or its affiliates, you may opt out of such communications by contacting us using the information provided at the bottom of this page, clicking the unsubscribe link in any email we send to you, or visiting the Preference Center on the MCM Website.
- 9. CALL RECORDING: By using or accessing the MCM Website, you acknowledge that all calls to and/or from MCM may be monitored or recorded by MCM. By continuing any call to or initiated by MCM, you consent to such monitoring or recording of the call by MCM.
- 10. CALLS AND COMMUNICATIONS TO YOU USING A MOBILE TELEPHONE NUMBER: If you provide a mobile telephone number to MCM, you consent to receiving calls, texts, SMS messages, prerecorded messages, or other communications of any kind whatsoever, at that number or on a device connected to or associated with that number, from MCM, its parent, and/or its affiliates using an automatic telephone dialing system, autodialer, or predictive dialer. The ways in which you provide MCM a telephone number may include, but are not limited to, providing a telephone number in an e-mail, text message or other communication to MCM, adding a telephone number to your Account on the MCM Website, providing it to an MCM employee, or by contacting MCM from that phone number. YOU HAVE THE RIGHT TO REFUSE TO PROVIDE THIS CONSENT AND YOU HAVE THE RIGHT TO REVOKE THIS CONSENT AT ANY TIME. TO REFUSE TO PROVIDE THIS CONSENT OR TO REVOKE YOUR CONSENT, YOU MAY CALL (877) 231-8885, VISIT THE Consumer Resolution Center, OR WRITE TO THE
Chief Compliance Officer:
P.O. Box 939069
San Diego, CA 92193
- 11. PAYMENT TERMS AND CONDITIONS: These Payment Terms and Conditions (the “Payment Terms and Conditions”) are part of this TOU and govern any payment transaction you initiate on the MCM Website (each, a “Payment Transaction”). If you choose to use the MCM Website to make a Payment Transaction, you accept and agree to these Payment Terms and Conditions.
- 11.1 Scope: As used herein, the words “bank account” refer to the account held by a bank, securities firm, or other financial institution from which payment will be made when you make a Payment Transaction. The words “your bank” mean the bank, securities firm, or other financial institution that holds your account and/or issued your credit or debit card. Making a Payment Transaction will enable you to pay your account(s) online. MCM, in its sole discretion, may refuse this payment option service, and specific payment methods, to anyone or any user without notice for any reason at any time.
- 11.2 Payment Authorization (Including Automatic Payments): To make a Payment Transaction, including automatic payments (if eligible), you must designate a valid major credit card, check, or electronic check (“Payment Method”). Each time you initiate a Payment Transaction, you authorize us or our agent to draw a check or draft, initiate an automated clearing house (“ACH”) debit, and/or charge your Payment Method, in your name to the bank account you specify, payable to us or to our agent, in the amount of the Payment Transaction, on the date(s) specified (“Billing Date”) of the month(s) of payment according to the schedule (one-time or recurring) that you have affirmatively elected to enroll in for your account. Your transaction must be payable in U.S. dollars. By paying using your designated Payment Method, you agree that: (a) you have read, understand and agree to these Payment Terms and Conditions, and that this agreement constitutes a “writing signed by you” under any applicable law or regulation; (b) you consent to the electronic delivery of the disclosures contained in these Terms and Conditions; (c) you authorize MCM (or its agent) to make any inquiries or take any other action we consider necessary to validate your bank account or any dispute involving your payment, which may include engaging with third-party account validation providers to validate your bank account, ordering a credit report and performing other credit checks or verifying the information you provide against third party databases; (d) you authorize MCM (or its agent) to initiate one or more drafts or ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from your bank account; and (e) you authorize the financial institution that holds your bank account to deduct such payments, debit your debit card, and/or charge your credit card, and to initiate any debit or credit entries to your bank account in the amount of such payments or corrections.
- 11.3 Charges: Before you make your payment, make sure you have enough money in your bank account to cover the payment. For each transaction, your bank may assess its customary per-check or item-handling charge, if any. Your bank may also assess its customary charge for each dishonored check or draft. If any transaction (check, demand, draft, debit, or charge debited or drawn by us or our agent in connection with your Payment Transaction) is not honored by your bank, we have the right to collect the amount from you as permitted by applicable law. If this happens, we may cancel your right to make Payment Transactions on the MCM Website.
For certain accounts, you may have a separate agreement with a participating bank, securities firm, or other financial institution that allows a line of credit to be accessed in the event that your account contains insufficient funds to make payment to us. You should refer to the appropriate agreement relating to that line of credit for the terms and conditions that govern its use.
- 11.4 Payment: Any request or order to settle or make a Payment Transaction shall require MCM’s confirmation of acceptance, and may also require additional verification or information from a third-party account verification provider and additional verification or information from you before acceptance by MCM. All amounts are denoted in US Dollars ($). MCM utilizes third party payment processors, and you hereby agree that MCM may charge your chosen payment method for any Payment Transaction and for any applicable taxes. You agree to pay all charges incurred by you in connection with any credit card, debit card, or other payment method utilized in connection with a Payment Transaction with MCM. MCM does not assess fees or interest to a consumer’s balance throughout the period of active repayment (except those awarded by a court upon agreement with the consumer or after due process of law); however, missed payments will invalidate any agreed upon arrangement. Interest on the account, if applicable, which had been deferred while payments were being received may be added back to the account after payments ceased. MCM also reserves the right to terminate or suspend access to the MCM Website if you fail to pay any amounts when due. You shall reimburse MCM for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts.
- 11.5 Third-Party Processors: You acknowledge and agree that you are responsible for compliance with any third party payment processor’s terms and conditions and may be required to establish an account with a third party payment service provider in order to complete a Payment Transaction. You may also be required to abide by additional instructions from and to agree to further terms and conditions with MCM regarding payment, retrieving data, and receiving other services. If there is a conflict between this TOU and such other or third party terms and conditions, this TOU shall control as it relates to the subject matter of this TOU.
- 11.6 Current Information: It is your responsibility to make sure that your Payment Method information and contact information are current at all times during the term of the payment plan you specify in your Payment Transaction.
- 11.7 Payment Processing for Online Payments: With limited exceptions, we will endeavor for Payment Transactions to be processed within 24 hours of receipt. Payment Transactions made at or before 2:00 pm PST may be credited to your account the same day. Payment Transactions made after 2:00 pm PST may be credited to your account the following business day. You are solely responsible for making payments sufficiently available prior to the due date, and you are solely responsible for actions taken on your account resulting from a late payment.
- 11.8 Turning Off Automatic Payment or Voiding Your Plan: To cancel automatic payments on your payment plan, please contact us directly at the phone number at the bottom of the page. You may also void your plan by logging into your account located on the MCM Website, or by calling the same number. Such cancellation or termination shall be effective at the time of cancellation or termination. To cancel, change, or modify your payments or plan, please call or log-on at least two (2) Business Days before the Billing Date, unless otherwise permitted under applicable law, or your payment may be debited and/or charged for the then due payment. If you have entered into an agreement on a pending civil action regarding the underlying debt or a court has approved your payment plan and it, or the agreement itself, requires additional actions by either party in the event of your non-payment or default, then your cancellation of online automatic payments will be honored. However, this may not affect your legal rights or your obligations to pay as agreed. “Business Day” means Monday through Friday, excluding official U.S. government holidays and official MCM corporate holidays.
TO VOID YOUR PLAN:
Online: Click on “View Payment Plan”
Click on “Void Plan”
By Phone: Call us at 1-800-296-2657.
- 11.9 Customer Service: Payment Transactions that we process using your Payment Method, will be identified as “Midland Credit Management, Inc.” (or similar identifier) on the statement issued by your bank or other financial institution holding your account. All questions relating to any transactions made using your bank account by us should be initially directed to us. Save the payment confirmation that you are provided when you make a payment, and check it against your applicable account statement. You may contact us regarding any payments made using your bank account or other method by writing to us at 350 Camino De La Reina, Suite 100, San Diego, CA 92108, or by phone at 1-877-420-0039. You may also view your transaction history for your payment at any time in the Account Details screen.
- 11.10 Transaction Errors and Advisability of Prompt Reporting: If you believe that any Payment Transaction initiated by MCM (or its agent) with respect to your bank account is erroneous, or if you need more information about any such transaction, you should contact us as soon as possible. Notify us at once if you believe the password associated with your account has been lost or stolen, or if someone has attempted (or may attempt) to make a transfer from your bank account to complete a payment using your account without your permission. We reserve the right to cancel the ability to pay using the MCM Website for any reason at any time. You also should contact your bank for the Payment Method.
- 11.11 Our Liability for Improper Transactions or Payments: Federal law limits your liability for any fraudulent, erroneous unauthorized transaction from your bank account based on how quickly you report it to your financial institution. As general rule, you should report any fraudulent, erroneous or unauthorized transactions to your bank within 60 days after the questionable transaction FIRST appeared on your bank account statement. You should contact your bank for more information about the policies and procedures that apply to your account and any unauthorized transactions, including any limits on your liability. We will not be liable to you in the following instances:
- – If, through no fault of ours, your account does not contain enough money to complete the transaction;
- – If the funds in your account are subject to legal process or other encumbrance restricting the transaction; or
- – If circumstances beyond our control (such as fire or flood) prevent the transaction, despite reasonable precautions that we have taken
- 11.12 Disclosure of Payment Information to Third-Parties: To protect your privacy, we will not disclose any information about your online payment transactions to any person, except as follows:
- 1. as necessary to complete transactions, including without limitation to validate any bank account with a third party account verification provider such as Bank of America’s U.S. Account Validation service using the National Shared Database, to verify the bank account prior to completion of certain web-based transactions;
- 2. to validate or verify the existence and condition any dispute involving payment, including with a third party, such as a financial institution or credit bureau (or, for Massachusetts residents, a consumer reporting agency as defined in chapter 93 of the Massachusetts General Laws);
- 3. to comply with government agency or court orders;
- 4. to our employees, auditors, service providers, attorneys, or collection agents in the course of their duties;
- 5. to persons authorized by law in the course of their official duties; or
- 6. if you give us your written permission.
- 11.13 Termination: MCM, in its sole discretion, may refuse this payment option service to anyone or any user without notice for any reason at any time. You may terminate your participation in this service, but you must do so by writing to us at the address disclosed in the Section of these Payment Terms and Conditions entitled “Customer Service.” For automatic payments, see the section of these Payment Terms and Conditions entitled “Cancellation of Automatic Payments.” If you close your account, you agree to notify us first and to stop initiating transactions, and pay all agreed upon payments
- 11.14 Prior Agreements and Assignments: These Payment Terms and Conditions terminate and take the place of all prior agreements you may have with us relating to any Payment Transactions. We have the right to assign these Payment Terms and Conditions to a subsidiary or affiliate company at any time.
- 11.15 Note for Massachusetts Residents:
GENERAL DISCLOSURE STATEMENT: Any documentation provided to you which indicates that an electronic fund transfer was made shall be admissible as evidence of such transfer and shall constitute prima facie proof that such transfer was made.
The initiation by you of certain electronic funds transfers from your account will, except as otherwise provided in these Payment Terms and Conditions, effectively eliminate your ability to stop payment of the transfer.
UNLESS OTHERWISE PROVIDED IN THESE PAYMENT TERMS AND CONDITIONS, YOU MAY NOT STOP PAYMENT OF ELECTRONIC FUND TRANSFERS; THEREFORE, YOU SHOULD NOT EMPLOY ELECTRONIC ACCESS FOR PAYMENTS UNLESS YOU ARE SATISFIED THAT YOU WILL NOT NEED TO STOP PAYMENT.
DISCLOSURE OF ACCOUNT INFORMATION TO THIRD PARTIES: If you give us your written authorization to disclose information about you, your account or the transactions that you make to any person, that authorization shall be effective until we receive written notification from you to cancel such authorization, unless otherwise agreed or permitted by law, or as necessary under Paragraph 11.12.
- 12. FEEDBACK: MCM welcomes your feedback and suggestions about MCM’s products or services or with respect to how to improve the MCM Website. But, by transmitting any feedback or suggestions and any related information, material, or other content (collectively, “feedback”) to MCM, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey such feedback to MCM. In addition, any feedback received by MCM will be deemed to include from you a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for MCM to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in the information, material, or content related to such feedback, and you hereby waive any claim to the contrary.
- 13. WARRANTY DISCLAIMER: THE MCM WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MCM MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE MCM WEBSITE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MCM ALSO DOES NOT REPRESENT OR WARRANT THAT THE MCM WEBSITE WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MCM WEBSITE IS WITH YOU.
- 14. LIMITATION OF LIABILITY: You acknowledge and agree that MCM shall not be liable or responsible for any claim, damage, or loss resulting from a cause beyond MCM’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or other natural disasters, strikes or other labor problems, wars, or governmental restrictions.
MOREOVER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IN NO EVENT SHALL MCM BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, FOR LOST DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE MCM WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF MCM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF MCM FOR ANY REASON WHATSOEVER RELATED TO USE OF THE MCM WEBSITE, RESULTS FROM USE OF THE MCM WEBSITE, OR FOR ANY CLAIMS RELATING TO THIS TOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 USD).
- 15. ARBITRATION:
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE MCM WEBSITE, OR TO ANY INTERACTION WITH MCM OR ITS PARENT OR AFFILIATES, WHETHER THROUGH THE MCM WEBSITE OR OTHERWISE, OR TO ANY PRODUCT(S) OR SERVICE(S) OFFERED BY MCM OR ITS PARENT OR AFFILIATES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS AGREEMENT.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.
TO BEGIN AN ARBITRATION PROCEEDING, YOU MUST SEND A LETTER REQUESTING ARBITRATION AND DESCRIBING YOUR CLAIM TO OUR REGISTERED AGENT CORPORATION SERVICE COMPANY. THE ARBITRATION WILL BE CONDUCTED BY ANY APPROPRIATE ARBITRATION FORUM INCLUDING, BUT NOT LIMITED TO THE AMERICAN ARBITRATION ASSOCIATION (AAA) OR JAMS, UNDER THEIR RULES, INCLUDING ANY SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES. THE AAA’S RULES ARE AVAILABLE AT WWW.ADR.ORG OR BY CALLING 1-800-778-7879. JAMS RULES ARE AVAILABLE AT WWW.JAMSADR.COM OR BY CALLING (800) 352-5267. PAYMENT OF ALL FILING, ADMINISTRATION AND ARBITRATOR FEES WILL BE GOVERNED BY THE RULES OF THE ARBITRATION FORUM. MCM, ITS PARENT OR AFFILIATES WILL NOT SEEK ATTORNEYS’ FEES AND COSTS IN ARBITRATION UNLESS THE ARBITRATOR DETERMINES THE CLAIMS ARE FRIVOLOUS. YOU MAY CHOOSE TO HAVE THE ARBITRATION CONDUCTED BY TELEPHONE, BASED ON WRITTEN SUBMISSIONS, OR IN PERSON IN THE COUNTY WHERE YOU LIVE OR AT ANOTHER MUTUALLY AGREED LOCATION.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. WE ALSO BOTH AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
- 16. ENFORCEMENT: MCM wishes to maintain the MCM Website as helpful resources for all of its users. As it relates to MCM, MCM reserves the right to view, monitor, and/or record activity on the MCM Website (in accordance with applicable law) and to comply with government or court appointed authorities when necessary. Actual or attempted unauthorized use of the MCM Website may also result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. You shall therefore not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by MCM for use of or with the MCM Website. Moreover, you also acknowledge that any breach, threatened or actual, of this TOU by you may cause irreparable injury to MCM and/or its licensors, such injury would not be quantifiable in monetary damages, and MCM and/or its licensors would not have an adequate remedy at law. You therefore agree that MCM and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOU. Accordingly, you hereby waive any requirement that MCM or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to MCM to enforce any provision of this TOU.
- 17. TERMINATION: MCM also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraud, illegal activity, or actions or omissions that violate any term or condition of this TOU, to terminate this TOU with you (including any registered account) and your right to access and use the MCM Website. You acknowledge and agree that MCM shall have the sole right to determine in its reasonable discretion whether you are engaging in any unauthorized activity and/or violating any term or conditions of this TOU. MCM shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this TOU in accordance with this section. You may also terminate at any time by ceasing to use the MCM Website. But, all applicable provisions of this TOU will survive termination, as outlined below. Any licenses from MCM and any right to use the MCM Website shall immediately cease upon termination of this TOU. The provisions concerning feedback, MCM’s ownership rights, warranty disclaimer, limitation of liability, governing law, enforcement, termination, and the miscellaneous terms will survive the termination or expiration of this TOU for any reason.
- 18. GOVERNING LAW: This TOU has been made in and will be construed and enforced solely in accordance with the laws of the State of California, U.S.A., as applied to agreements entered into and completely performed in the State of California. Without limiting and subject to the arbitration provisions set forth in this TOU, the state or local courts in the State of California will have exclusive jurisdiction and venue over all controversies in connection with this TOU, and you hereby consent to such exclusive and personal jurisdiction and venue. Any claim you might have against MCM relating to performance under this TOU must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. In addition, you agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this TOU and that each party has the right to seek attorney’s fees in any proceeding. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this TOU and is hereby disclaimed.
- 20. ENGLISH VERSION PREVAILS: In the event this TOU is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail.