1. INTRODUCTION AND ACCEPTANCE
2. INTELLECTUAL PROPERTY
3. WEBSITE ACCESS AND USE
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notices on the Website or Website Content or on any copy you make of the Website Content;
(ii) circumvent, disable or otherwise interfere with security-related features of the Website, including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or “scrape” the Website or Website Content for any purpose without the express written permission of Nimvo, frame the Website or Website Content except to the extent we have given you explicit permission to do so, or use any of our trademarks as meta tags. Notwithstanding the foregoing, Nimvo grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time;
(iv) collect or harvest any personally identifiable information from the Website, including, without limitation, user names, passwords, e-mail addresses;
(v) solicit other users to join or become members of any commercial online service or other organization without our prior written approval;
(vi) attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same;
(vii) decompile, reverse engineer, disassemble, modify or attempt to discover any Website source or object code or any software or other products, services or processes accessible through any portion of the Website;
(viii) use network-monitoring software to determine architecture of or extract usage data from the Website;
(ix) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person’s Membership (as defined in Section 5(B)) without permission, etc.);
(x) use the Website Content in a manner that suggests an association with any of our networks, products, services or brands;
(xi) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or
(D) You also agree that you will be responsible for obtaining and maintaining all Computer hardware and other equipment needed for access to and use of the Website and you will be responsible for all charges related thereto.
4. CONDITIONS FOR LINKING TO WEBSITE
5. USER REGISTRATION
(B) If you become a registered user, you will provide true, accurate, current and complete registration information about you as may be prompted by any registration forms and, if such information changes, you will promptly update the relevant registration information. During registration, you may be required to create a username and password (a “Membership“), which may permit you access to certain areas of the Website not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership and for restricting access to your Computer so that others may not access any password protected portion of the Website using your username in whole or in part. If you register with us, you agree to accept sole responsibility for all activities that occur under your Membership, whether or not you have authorized the activity. You agree you will not sell, transfer or assign your Membership or any Membership rights. You agree to notify us immediately of any breach of security or unauthorized use of your Membership. We reserve the right to terminate your account or otherwise deny you access to the Website in our sole discretion for any or no reason without notice and without liability.
6. USER CONTENT
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references unless specifically requested by us;
(vi) contains a formula, instruction, or advice that could cause harm or injury;
(vii) is a chain letter of any kind;
(viii) the licensed use by us hereunder would result in us having any obligation or liability to any party;
(ix) depicts any third party trademarks or products or services in any manner that violates their rights or could otherwise create liability; or
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
(E) By submitting User Content, you also grant us the right, but not the obligation to use your biographical information, including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called “moral rights” or rights of “droit moral” with respect to the User Content.
(F) We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
(G) We have the right, but not the obligation, to monitor User Content. Please exercise caution and common sense when viewing User Content. We have no obligation to post, maintain, accept, display, exploit or otherwise make use of User Content, do not guarantee distribution of User Content and User Content will not be returned and you will not have the right, once posted, to access, archive, maintain or otherwise use such User Content on the Website. We may discontinue operation of the Website, or your use of the Website, in either case in whole or in part, in our sole discretion. You have no right to maintain or access your User Content on the Website and we have no obligation to return your User Content or otherwise make it available to you. We may, in our sole discretion, delete, move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that we reserve the right to treat User Content on the Website, or on certain portions of the Website, as content stored at the direction of users for which we will not exercise editorial control except to block or remove content that is obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable or to enforce the rights of third parties.
(H) The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion; provided, however, the rights granted by us may be terminated, revoked or rescinded and are subject to reversion. If you become aware that User Content you have submitted includes any material for which you lack the unrestricted right to grant us the rights set forth above without obligations or liability to any party, you agree to promptly provide us with detailed written notice thereof.
7. WEBSITE CONTENT & THIRD PARTY LINKS
(A) We provide the Website, including, without limitation, Website Content for entertainment, educational and promotional purposes only. You may not rely on any information and opinions expressed on the Website for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content.
(B) In many instances, Website Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Website by anyone other than authorized employees or spokespersons while acting in their official capacities.
(C) If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release Nimvo and its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
(D) The Website may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. You assume sole responsibility for your use of third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
The Website may include certain features and services that may be available via your mobile phone, including, without limitation: (a) the ability to upload to the Website via your mobile phone (Mobile Uploads), (b) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (c) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the “Mobile Services“). We typically do not charge for Mobile Services. Your carrier’s normal messaging, data and other rates and fees will, however, still apply. Your carrier may prohibit or restrict certain Mobile Services and certain Mobile Services may be incompatible with your carrier or mobile device. You should check with your carrier to find out what plans are available and how much they cost. By using the Mobile Services you agree that we may communicate with you regarding the Website and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
You agree that in connection with the Mobile Services for which you are registered for, we may send communications to your mobile device regarding us or other parties. Further, we may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify us of any changes to your mobile number and update your account(s) on the Website to reflect this change.
9. WIDGETS, OUR WEBSITE CONTENT ON OTHER SITES AND DOWNLOADS
(B) NOTICE TO THIRD PARTY SITES: Any of our Website Content made available in connection with your site, or otherwise, by our Widgets, third party widgets or otherwise is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Website Content upon notice.
YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, Nimvo AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE OR WEBSITE CONTENT; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, CUSTOM, TRADE, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (6) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED, TIMELY OR ERROR-FREE; (7) WARRANTIES THAT DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED; AND (8) WARRANTIES THAT THE WEBSITE (OR THE SERVER THAT MAKES IT AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12. LIMITATION ON LIABILITY
(C) In some jurisdictions limitations of liability or of warranties are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
(B) If you become a registered user, you may terminate your Membership at any time by sending an e-mail.
14. COPYRIGHT POLICY
(A) Nimvo respects the intellectual property rights of others and expects its users to do the same. In appropriate circumstances and at its sole discretion, Nimvo may terminate and/or disable the Membership of users who it suspects to be infringers of the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in its sole discretion, Nimvo may remove or disable access to material on any of its websites or hosted on its systems that may be infringing or the subject of infringing activity.
(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA“), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent“). Nimvo’s Designated Agent may be reached at:
(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
(iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
15. CHOICE OF LAW; JURISDICTION AND VENUE
16. DISPUTE RESOLUTION; BINDING ARBITRATION
In the Dispute Resolution Section only, “we” and “us” are used to refer to you and Nimvo together.
(A) We each agree to first contact each other with any Disputes (defined below) and provide a written description of the problem and the proposed resolution. You agree to contact us with Disputes by contacting us at the address provided in Section 16(B)(ii) below. We will contact you based on the contact information you have provided us.
(ii) If either of us wants to arbitrate a Dispute, we agree to send written notice to the other providing a description of the Dispute and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent. We agree to make attempts to resolve the Dispute. If the parties cannot resolve the Dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the Dispute to formal arbitration.
(iii) The FAA applies to this Agreement and arbitration provision. We each agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
(iv) The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules as supplemented by AAA’s Supplementary Procedures for Consumer-Related Disputes. In the event AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration”, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS“) or any other mutually agreeable arbitration administration service. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 orwww.adr.org. and from JAMS at (949) 224-1810 orhttp://www.jamsadr.com. If applicable law requires Nimvo to pay a greater portion of the arbitration fees then provided under the applicable arbitration service’s rules in order for the arbitration provision to be enforceable, Nimvo shall have the discretion to elect to pay such fees and proceed to arbitration. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties.
(vi) We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn’t apply and the Dispute must be brought in court. The provisions of this Section will not apply to any legal action taken by Nimvo to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Website Content, your User Content and/or Nimvo’s intellectual property rights.
(vii) Except where prohibited or limited by applicable law, the prevailing party(ies) in the arbitration will be entitled to recover its costs and expenses, including reasonable attorneys’ fees and experts’ fees, which are incurred in connection with the arbitration.
(C) Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
17. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND Nimvo WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
18. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND Nimvo WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
19. AMENDMENT; ADDITIONAL TERMS
20. TERRITORIAL RESTRICTIONS
Software related to or made available by the Website and/or Website Content may be subject to United States export controls. Thus, no software from the Website and/or Website Content may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the Website and/or Website Content, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
Effective: April 26, 2017