Effective Date: May 19th, 2021
By agreeing to these Terms, you expressly agree to the arbitration of all Disputes as further described below. Any controversy, allegation, or claim that arises out of or relates to the Service, these Terms or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute
”), except for any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights(an “Excluded Dispute
”), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration provisions will remain in force.
1. Your Access to the Service
- Internet Access. When using the Service on your mobile, laptop, desktop or other device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device through a Wi-Fi or LTE data communication network and (ii) any Internet connection and telecommunications fees and charges that you incur.
- Your Device. Nexient is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Service, including, but not limited to screen display operation features of your Device.
- No Guarantee. Access to the Service may be suspended temporarily and without notice (i) in the event of system failure, (ii) for maintenance or repair,(iii) where we reasonably suspect there has been a breach of these Terms, (iv)for reasons reasonably beyond our control, or (v) as otherwise explained in these Terms.
2. Permitted Use and Restrictions
- License Grant. Subject to the terms and conditions of these Terms, Nexient hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Service(including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation)solely for your personal use on a Device that you own or control. We reserve all other rights, which are not granted in these Terms.
- Use Restrictions. You may not access or use the Service in any way that is not expressly permitted by these Terms. You may not: (i) cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (ii) sell, assign, rent, lease, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity; or (iii) use theService for any unlawful, prohibited, abnormal or unusual activity as determined by Nexient in its sole discretion.
- Investigations.We may, but are not obligated to, monitor or review our Service at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Service pursuant to Section 10 (Termination)below.
- Violation of these Terms.You must not use (or permit a third-party to use) the Service: (i) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system used by the Service; (ii) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users;(iii) to collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service; (iv) via use of a robot, spider, or other automated device to monitor or copy the Service or any information provided by the Service; (v) to send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms; or (vi) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You acknowledge and agree that you are solely responsible, and Nexient has no responsibility or liability to you or any other person or entity for, any
- We welcome feedback from our users and appreciate your comments regarding ourService. However, our company policy does not permit us to accept or consider ideas, suggestions, proposals, or materials (“Submissions”) that we have not specifically requested. This policy is intended to help us and our customers avoid future misunderstandings when new products or services developed internally by our employees might be similar or even identical to a customer’s idea.
5. Intellectual Property Rights
- Trademarks.The Nexient name and logo are trademarks and service marks of Nexient. You do not have the right to use any of our trademarks, service marks or logos, and your unauthorized use of any of these may be a violation of federal and state trademark laws.
- Ownership.You acknowledge that all intellectual property rights in the Service, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” trade dress, structure, organization, code, and all content in the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of Nexient, and are protected by intellectual property laws. You acknowledge and agree that Nexient, and/or its licensors, own all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that Nexient has designated as confidential and you agree not to disclose such information without Nexient’s prior written consent. Nothing posted on theService grants a license to any Nexient trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise.You should assume that everything you see or read on the Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of Nexient. When accessing theService, you agree to obey the law and to respect the intellectual property rights of others. Your use of theService is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
6. Third-Party Sites and Services
- The Service may contain links to or allow you to share content directly with other third-party websites (“Third-Party Sites”). You acknowledge that we have no control over the Third-Party Sites and are not responsible for their contents and/or availability. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk.
- These links are provided to you for convenience only and do not constitute an endorsement or approval by us of the organizations that operate such websites, the content, or other material contained in the Third-Party Sites and we have no association with their operators. Your use of the Third-Party Sites will be governed by their terms and conditions and privacy policies (if any) (“Third-PartyTerms”). It is your responsibility to read and comply with Third-PartyTerms.
- You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), arising out of or in connection with: (a) your use of the Service; (b) your breach or violation of any of these Terms; or (c) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
8. Warranty Disclaimer
- WE PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS,DEFECTS OR ERRORS IN THE SERVICE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SERVICE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included on the Service is accurate, complete or up to date.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES,REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SERVICE WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD-PARTIES WITH RESPECT TO THE SERVICE AND ALL INFORMATION AND CONTENT INCLUDED ON THE SERVICE.
- No information or advice obtained through the Service, or affirmation by us, bywords or actions, shall constitute a warranty.
- Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
9. Limitation of Liability
- INNO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT,INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS,ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ONTHE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE) ARISING FROM,RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICE OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT OR TORT,REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT)OF NEXIENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Your sole remedy for dissatisfaction with the Service including, without limitation, content offered on the Service, is to stop using the Service. Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with the Service or any links on the Service, as well as by reason of any information or advice received through or advertised in connection with the Service or any links on the Service. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third-party or conduct of a third-party on the Service.
- In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of theService must be brought within one year after such claim or cause of action arises or be forever barred.
- THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, NEXIENT’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON NEXIENT’S CHOICE OF LAW PROVISION SET FORTH BELOW.
- IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542,WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- We may terminate these Terms and/or terminate your permission to use the Service immediately, without prior notice or liability, if you commit any breach of these Terms. Further, with respect to the Service, we may terminate theseTerms, and/or your permission to use the Service immediately, without prior notice or liability; if (a) we discontinue the Service, or (b) we are prevented from providing the Service for any reason.
- Furthermore, we reserve the right to change, edit, suspend, delete and/or cancel any part of the Service and/or your access to it at any time with or without notice to you:(i) if required by law, or (ii) due to an event beyond our control.
- On termination of these Terms for any reason: (x) all rights granted to you under these Terms will cease immediately, (y) you must immediately cease all activities authorized by these Terms (including your use of the Service), and(z) you acknowledge that we may restrict your access to the Service. Sections 3,5, and 7–13 will survive any termination or expiration of these Terms.
11. Communication Between Us
- If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us as indicated in theContact Information section at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
12. Governing Law and Jurisdiction
- These Terms are governed by California law, without regard to conflict of laws principles. You and Nexient agree that, except as otherwise provided below, the state and federal courts located in the County of Alameda and City of Oakland,California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing Nexient shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
13. Dispute Resolution
- User Concerns. Most user concerns can be resolved quickly and to the user’s satisfaction by contacting us at the contact details in the Contact Information section below.
- Arbitration Procedures. In the event your concern cannot be resolved informally, you and Nexient agree that, except as provided in Section (e) below, all Disputes,(each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”)and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section (Dispute Resolution) and theJAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in Section (e) below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and Nexient will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in theseTerms, (i) you and Nexient may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU ARE AGREEING TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR ANDNOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
- Location. The arbitration will take place in the County of Alameda and City of Oakland,California, unless the parties agree to video, phone or internet connection appearances.
- Limitations.You and Nexient agree that any arbitration shall be limited to the Claim between Nexient and you individually. YOU AND NEXIENT AGREE THAT (i) THERE ISNO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FORANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
- Exceptions to Arbitration. You and Nexient agree that the following Claims are not subject to the above provisions concerning binding arbitration: (i) anyExcluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay theJAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay the costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
- Severability. You and Nexient agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section (e)), that portion shall be severed and the remainder of the Section shall be given full force and effect.If Section (e) is found to be illegal or unenforceable then neither you nor Nexient will elect to arbitrate any Claim falling within that portion of Section (e)found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Alameda andCity of Oakland, California, United States of America, and you and Nexient agree to submit to the personal jurisdiction of that court.
14. Other Important Terms
- Assignment. The rights granted to you under these Terms may not be assigned without Nexient’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
- Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
- Attorneys’Fees. In the event of any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 13(f),the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
- No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Nexient of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
- Equitable Remedies. You acknowledge and agree that Nexient would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
- Entire Agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and Nexient with respect to the Service and supersedes any and all prior agreements between you and Nexient relating to the Service.
- Transfer. We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
15. Changes to These Terms
- We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Service and/or we may email you about any material changes to theseTerms. We reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Service (or any part of it) with or without notice.
- If you have any questions or comments relating to the Service or these Terms, please contact us at firstname.lastname@example.org.
Last Updated May 2021