Neighbor Serve (“NS”) connects Homeowners and residential contractors (Pros). The following Terms of Use outline your obligations when using the Neighbor Serve websites, applications, and services.
NS may refer, and Homeowner may choose to hire, residential Pros to provide services (hereinafter referred to as “Pros”). NS does not oversee or guarantee the quality of work provided by third-party Pros sourced through its services. The Homeowner contracts directly with the Pros. NS shall not be liable for any damages, losses, or disputes arising from the services provided by third-party Pros. NS shall not be liable for damages, losses, or disputes arising from issues identified but not completed nor shall it be liable for damages, losses, or disputes arising from unidentified issues.
The parties hereby agree as follows:
1. ACCEPTANCE OF TERMS
The NS website available at www.nsprodtemp.wpenginepowered.com and all related sites and applications, and the various content, features, and services (collectively, the “Sites and Services”) are owned and operated by Neighbor Serve and can only be accessed and used by you under the Terms of Use described below (“Terms of Use”).
PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, DOWNLOADING, OR USING ANY OF THE SITES AND SERVICES, YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS AND USE THE SITES AND SERVICES.
2. MODIFICATIONS OF TERMS OF USE
NS may, in its sole discretion, modify these Terms of Use at any time effective upon posting the modified Terms of Use on and in connection with the Sites and Services, with or without additional notice to you. You are responsible for regularly reviewing information posted on the Sites and Services to obtain timely notice of such changes. If you do not agree to the amended terms, you agree to immediately stop using the Sites and Services and to provide NS notice to remove you from any distribution lists or other communication list that are available to you through your use of the Sites and Services. YOUR CONTINUED USE OF THE SITE AND SERVICES AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS OF USE.
3. USE OF THE SITE AND SERVICES; TERM & RENEWALS
Memberships are 12 months in duration and will automatically renew for successive 12-month terms unless Homeowner cancels at least 30 days before the renewal date. NS may cancel this Agreement if Homeowner receives written complaints from 2 or more Pros during the initial term or during any renewal term of this Agreement.
Subject to full compliance with these Terms of Use, NS grants authorized users a nonexclusive, nontransferable, non-sublicensable, terminable license to access and use the Sites and Services for your personal use. You agree to not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Sites or Services or any of their content for any purpose except for your personal use and as described in these Terms of Use, without the express written consent of NS. NS may modify, update, suspend or discontinue the Sites and Services, in whole or in part, at our sole discretion for any or no reason, at any time and with or without notice. NS shall not be liable to any user or other third party for any such modification, update, suspension or discontinuance.
4. USER CONDUCT
As a condition of your access and use of the Sites and Services and access to reviews, communications, information, data, text, photographs, audio clips, audiovisual works, or other materials on the Sites and Services (collectively, the “Content”), you agree not to use the Sites and Services for any purpose that is unlawful or prohibited by these Terms of Use, or any other purpose not reasonably intended by NS. By way of example, and not as a limitation, you agree not to:
- violate these Terms of Use, other applicable agreement with NS, and any applicable local, state, national or international law, and any rules and regulations having the force of law;
- use the Sites and Services in any manner that violates any relevant law or that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any Content that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
- use the Sites and Services or its Content for any purposes not authorized by these Terms of Use, including commercial, political, or religious purposes, including the submission or transmission of any Content that contains advertisements, promotional materials, junk mail, or any other form of solicitation;
- reproduce, duplicate, copy, modify, sell, re-sell or exploit any Content or the Sites and Services for any commercial, educational, or any other non-personal purpose or any for any purpose unrelated to your personal purchasing decisions, without the express written consent of NS, which consent may be withheld by NS in our sole discretion;
- impose an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the Sites and Services or any activities conducted on the Sites and Services;
- harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, falsify your contact or other information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with NS, or otherwise attempt to mislead others;
- knowingly provide or submit false or misleading information;
- use the Sites and Services if you are under the age of eighteen (18);
- take any action that would undermine the review and rating process under the Sites and Services;
- attempt to gain unauthorized access to the Sites and Services, other user accounts, or other computer systems or networks connected to the Sites and Services;
- use the Sites and Services in any way that could interfere with the rights of NS or the rights of other users of the Sites and Services;
- attempt to gain unauthorized access to any portion or feature of the Sites and Services, or any other systems or networks connected to the Sites and Services or to any server used by NS by hacking, password ‘mining’ or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other Sites and Services user;
- sell, share, or otherwise transfer your account username, password, other information, or your rights or obligations under these Terms of Use;
- transmit or submit any transmission or other materials that are encrypted or that contains viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the Sites and Services;
- access, download, monitor, or copy any information contained on our Sites and Services through artificial means (including but not limited to use any ‘deep-link’, ‘scraper’, ‘robot’, ‘spider’ or other automatic device, program, algorithm or methodology, or any similar or equivalent automatic or manual process, or in any way reproduce or circumvent the navigational structure or presentation of the Sites and Services or any content, to obtain or attempt to obtain any Content, materials, documents or information through any means not purposely made available through the Sites and Services; or
- probe, scan or test the vulnerability of the Sites and Services or any network connected to the Sites and Services, nor breach the security or authentication measures on or of the Sites and Services or any network connected to the Sites and Services. You may not reverse look-up, trace or seek to trace any information on any other user of the Sites and Services, or any other customer of NS, including any NS account not owned by you, to its source, or exploit the Sites and Services or any service or information made available or offered by or through the Sites and Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by NS and provided for by the Sites and Services.
5. NS SERVICES
When using, accessing, or purchasing particular services or features of the Sites and Services, you shall be subject to any posted agreements, guidelines, or rules applicable to such services or features that may be posted from time to time. All such agreements, guidelines, or rules are hereby incorporated by reference into the Terms of Use.
6. REGISTRATION INFORMATION
We may require that you create an account to use or access certain parts of the Sites and Services and use certain products and features. We may require that you provide login information such as a username and password to access and utilize your account. As a condition of your use of the Sites and Service, you agree to (a) provide NS with true, accurate, current and complete information as prompted by the NS registration forms, when registering for or using the Sites and Services and (b) update and maintain the truthfulness, accuracy and completeness of such information. You are responsible for maintaining the confidentiality of any password or other account information not generally available to others and are fully responsible for all activities that occur under your username and password. While there are limited, legitimate reasons for creating multiple accounts, creating serial or overlapping accounts may result in account termination. Please contact us if you have questions about managing multiple accounts.
7. PUBLICATION AND DISTRIBUTION OF CONTENT
NS does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You acknowledge that NS simply acts as a passive conduit and an interactive computer Pro for the publication and distribution of Content and for the publication and distribution of any content posted by Pros in response to Content (“Pro Content”). You understand that all Content and Pro Content posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such Content originated. You understand that NS does not control and is not responsible for Content or Pro Content made available through the Service, and that by using the Service, You may be exposed to Content that is inaccurate, misleading, or offensive. You agree that You must evaluate and make Your own judgment, and bear all risks associated with, the use of any Content and Pro Content.
You further acknowledge that NS has no obligation to screen, preview, monitor or approve any Content or Pro Content, or Content posted or submitted by any other NS member or any Pro. However, NS reserves the right to review and delete any Content that, in its sole judgment, violates the terms and conditions of this Agreement. By using the Service, You agree that it is solely YOUR RESPONSIBILITY to evaluate Your risks to bear associated with the use, accuracy, usefulness, completeness or appropriateness of any Content that You submit, receive, access, transmit or otherwise convey through the Service. Under no circumstances will NS be liable in any way for any Content or Pro Content, including, but not limited to, any Content or Pro Content that contains any errors, omissions, defamatory statements, or confidential or private information for any loss or damage of any kind incurred as a result of the use of any Content or Pro Content submitted, accessed, transmitted or otherwise conveyed via the Service. You waive the right to bring or assert any claim against NS relating to Content or Pro Content, and release NS from any and all liability for or relating to any Content or Pro Content.
You may, however, report Content that you believe violates these Terms of Use or is otherwise unlawful by emailing team@neighborserve.com. Please note that you may be liable for damages (including costs and attorneys’ fees) for unlawful misrepresentations. If you are uncertain whether an activity is unlawful, we recommend seeking advice of an attorney.
You agree that NS may establish general practices, policies and limits, which may or may not be published, concerning the use of the Sites and Services. You agree that NS has no responsibility or liability for the deletion or failure to store any Content or other materials maintained or transmitted by or through the Sites and Services. You agree that NS has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
9. Pros
NS does not endorse and is not responsible or liable for any Content, data, advertising, products, goods or services available or unavailable from, or through, any third party or Pro. You agree that should you use or rely on such Content, data, advertisement, products, goods or services, available or unavailable from, or through any third party or Pro. NS is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any Pro and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Pro exclusively and do not involve NS. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Pros
Third parties and Pros may link or otherwise direct Internet users to our Sites and Services for the purpose of utilizing one or more of the services we provide on behalf of others. Additionally, we may provide links or otherwise direct you to third party or Pro websites. NS does not control or operate any such third party or Pro websites. Any information you provide to these third party or Pro websites while on these third party or Pro websites is subject to the respective policies of those third parties or Pros, and not NS’s policies. It is your responsibility to review such third party or Pro policies, including any relevant privacy policies. You agree that NS will not be responsible or liable for, and does not endorse any content, advertising, goods or services provided on or through these outside websites or for your use or inability to use such websites. NS does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party or Pro sites. You use these third party or Pro websites at your own risk.
You agree that NS is not responsible for the accessibility or unavailability of any Pro or for your interactions and dealings with them, waive the right to bring or assert any claim against NS relating to any interactions or dealings with any Pro and release NS from any and all liability for or relating to any interactions or dealings with Pros.
Without limiting the foregoing, your correspondence or business dealings with, consumption of products or services of, or participation in promotions of, third parties or Pros found on or through the use of the Sites and Services, including payment for and delivery or fulfillment of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that NS shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties or Pros on the NS Sites and Services.
10. TERMINATION
NS may terminate your privilege to use or access the Sites and Services immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using the Sites and Services and agree not access or make use of, or attempt to use, the Sites and Services. Furthermore, you acknowledge that NS reserves the right to take action — technical, legal or otherwise — to block, nullify or deny your ability to access the Sites and Services. You understand that NS may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to NS.
All provisions of these Terms of Use which by their nature should survive termination shall survive the termination of your access to the Sites and Services, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
11. TRADEMARKS AND COPYRIGHTS
NS, and other Sites and Services graphics, logos, designs, page headers, button icons, scripts, and service names are the trademarks or trade dress of NS in the U.S. and/or other countries. These trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, keyword advertisements, or email addresses, or in connection with any product or service in any manner that is likely to cause confusion.
You should assume all Content and material made available on the Sites and Services is protect by copyright law. All materials and other information on the Sites and Services, including, but not limited to, all text, graphics, logos, icons, images, audio and video clips, downloads, data compilations and software are the exclusive property of NS and/or its licensors and are protected by all United States and international copyright laws.
12. NOTICES
You agree that NS may communicate any notices to You under these Terms of Use, through electronic mail, regular mail or posting the notices on the Site.
15. DELAYS AND ACCESSIBILITY
The Sites and Services may be subject to limitations, delays, failure, and other problems inherent in the use of the Internet and electronic communications. NS is not responsible for any delays, failures or other damage resulting from such problems.
16. USER FEEDBACK
NS appreciates hearing from you, as well as our other users, and welcomes your comments regarding our Sites and Services. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, or materials other than those which we have specifically requested. Although we do value your feedback on our Sites and Services, please be specific in your comments regarding our services and do not submit creative ideas, suggestions or materials. If, despite our request, you send us creative suggestions, ideas, drawings, concepts or other information (collectively, the “Submissions”), such Submissions will be the property of NS. In addition, none of the Submissions will be subject to any obligations of confidentiality and NS will not be liable for any future use or disclosure of such Submissions.
17. WARRANTIES AND DISCLAIMERS
You acknowledge that NS has no control over, and no duty to take any action regarding: which users gain access to or use the Sites and Services; what effects the content on or in connection with the Sites and Services may have on you; how you may interpret or use the content on or in connection with the Sites and Services; or what actions you may take as a result of having been exposed to the content on or in connection with the Sites and Services. You release NS from all liability for you having acquired or not acquired content or information through the Sites and Services. The Sites and Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. NS makes no representations concerning any content contained in or accessed through the Sites and Services, and NS will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites and Services. NS makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of that information and assumes no responsibility for any errors or omissions therein.
YOU ACCESS AND USE THE SITES AND SERVICES AT YOUR OWN RISK. THE SITES AND SERVICES ARE PROVIDED ON AN ‘AS IS, AS AVAILABLE’ BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. NEITHER NS NOR ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON OR IN CONNECTION WITH THE SITES AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF NS, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO, OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. WE ARE NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SITES AND SERVICES. IN NO EVENT WILL NS OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR THIRD-PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL NS OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES OR ASSIGNS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF USER OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE SITES AND SERVICES.
ANY MATERIAL ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NS OR THROUGH OR FROM THE SITES AND/OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, NS DOES NOT REPRESENT OR WARRANT THAT (I) THE SITES AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SITES AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES AND/OR SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
NS has no control over and no duty to take any action regarding: other users’ behavior; what effects Content may have on you; how you may interpret or use Content; or what actions you may take as a result of having been exposed to Content. You release NS from all liability for you having acquired or not acquired Content through the Sites and Services. NS makes no representations concerning any Content, including the accuracy thereof, contained in or accessed through the Sites and Services, and NS will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites and Services.
The Sites and Services may display links to other Internet sites or resources. Because NS has no control over such sites and resources, you acknowledge and agree that NS is not responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources.
You further acknowledge and agree that NS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
18. INDEMNITY
You agree to indemnify, defend and hold harmless NS, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of these Terms of Use by you; (b) any intentional or willful violation of any rights of another or harm you may have caused to another. NS will have sole control of the defense of any such damage or claim.
19. LIMITATIONS OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF NS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES”), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY NS OR THE FAILURE OF NS TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to You.
You understand and agree that Your unlimited access to the Content on the Site and Services represents a substantial portion of the value You receive from Your NS’s Membership Fee. THEREFORE, TO THE EXTENT NS IS FOUND LIABLE FOR ANYTHING RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICE, NS’S LIABILITY FOR DAMAGES WILL NOT EXCEED THE EQUIVALENT OF ONE (1) MONTH OF YOUR MEMBERSHIP FEE (I.E., THE AMOUNT OF YOUR ANNUAL MEMBERSHIP FEE DIVIDED BY TWELVE).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT NS CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF MEMBERSHIP FEES TO NS THROUGH THE USE OF A CREDIT CARD (A “CREDIT CARD PROCESSOR”). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR NS, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN AND SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION SUFFERED BY YOU AS A RESULT OF THE FAILURE OF NS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY NS. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF NS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY NS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS SECTION. YOU HEREBY UNDERSTAND AND AGREE THAT NS SHALL BE SOLELY LIABLE FOR THE PAYMENT OF ANY DAMAGES TO YOU UNDER THIS AGREEMENT.
20. BREACH OF TERMS OF USE AND LIQUIDATED DAMAGES
You agree to pay the actual damages suffered by NS, including, but not limited to attorneys’ fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms of Use, we reserve the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms of Use, or any combination thereof.
21. ENTIRE AGREEMENT
These Terms of Use and other agreements, rules, and policies incorporated by reference to these Terms including, without limitation, the Privacy Policy, constitutes the entire agreement between you and NS. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and NS regarding the subject matter contained in these Terms of Use. Additional terms and conditions may exist between you and third parties, including but not limited to, Service Providers and others. You represent and warrant that those third-party agreements do not interfere with your obligations and duties to NS under these Terms of Use.
22. MUTUAL ARBITRATION AGREEMENT
- Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and NS, including without limitation any dispute or claim related to or arising out of this Agreement (“Dispute”), you and NS may attempt to negotiate any Dispute informally (the “Informal Negotiations”) before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this Section is your physical address that you have provided to NS.
- Arbitration. If a Dispute is not resolved through Informal Negotiations, you and NS agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration (“Arbitration Agreement”). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, NS will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described in Subsection (4) below.
- Excluded Disputes. You and NS agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
- WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. To fullest extent permitted by applicable law, You and NS agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
- Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
- Severability. You and NS agree that if any portion of this Section entitled “Mutual Arbitration Agreement” is found illegal or unenforceable, that portion will be severed, and the remainder of this Section will be given full force and effect.
23. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule (either of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Indiana.
24. MISCELLANEOUS
If you breach any term of these Terms of Use or other agreement with NS, NS may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. NS’s remedies are cumulative and not exclusive. Failure of NS to exercise any remedy or enforce any portion of the Terms of Use at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter.
If any provision of the Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
These Terms of Use are not assignable, transferable or sublicensable by you except with NS’s prior written consent. We may transfer, assign or delegate the Terms and its rights and obligations without consent.
Users of this Sites and Services are responsible for compliance with all applicable regulations and laws.
No joint venture, partnership, employment or agency relationship exists between you and NS as a result of these Terms of Use or use of the Sites and Services.
You acknowledge and agree that each of the Released Parties shall be an intended third-party beneficiary of these Terms of Use.
