Nearabl Terms of Use Agreement
Last Updated Date: November 1, 2021
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THE NEARABL MOBILE APPLICATION (“MOBILE APP”), AND THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE THE MOBILE APP (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), ARE CONTROLLED BY NEARABL INC. (“NEARABL”). THESE TERMS OF USE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY COMPLETING THE REGISTRATION PROCESS, DOWNLOADING OR USING THE MOBILE APP, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NEARABL, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM “YOU”REFERS TO THE INDIVIDUAL OR SUCH LEGAL ENTITY, AS APPLICABLE. IF YOU, OR IF APPLICABLE, SUCH LEGAL ENTITY, DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU, AND IF APPLICABLE, SUCH LEGAL ENTITY, MAY NOT ACCESS OR USE ANY OF THE SERVICES.
SECTION 14 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY NEARABL IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, NEARABL WILL MAKE A COPY OF THE UPDATED AGREEMENT AVAILABLE ON THE MOBILE APP AND UPDATE THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE. IF WE MAKE ANY MATERIAL CHANGES TO THE AGREEMENT, WE WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE MOBILE APP AND ATTEMPT TO NOTIFY YOU BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN YOUR ACCOUNT REGISTRATION. ANY CHANGES TO THE AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE SERVICES AND WILL BE EFFECTIVE FOR EXISTING REGISTERED USERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS OF USE, OR (B) YOUR CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF NEARABL PROVIDES A MECHANISM FOR YOUR IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH NEARABL MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO THE UPDATED AGREEMENT, YOU MUST STOP USING ALL SERVICES UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. OTHERWISE, YOUR CONTINUED USE OF ANY OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE UPDATED AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED AGREEMENT. YOU AGREE THAT NEARABL’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.
1. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Nearabl, your right to use any and all Services is subject to the Agreement.
1.1 Mobile App License. Subject to your compliance with the Agreement, Nearabl grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mobile App on a single mobile device that you own or control and to run such copy of the Mobile App solely for your own personal or internal business purposes. Furthermore, with respect to any Mobile App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2 Nearabl Software. Use of any software and associated documentation, other than the Mobile App, that is made available via the Services (“Software”) is governed by the Agreement. Subject to your compliance with the Agreement, Nearabl grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under open source licenses that we will make available to you upon your request. There may be provisions in the open source licenses that expressly override some of these terms.
1.3 Updates. You understand that the Services are evolving. As a result, Nearabl may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Nearabl may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
1.4 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not use any metatags or other “hidden text” using Nearabl’s name or trademarks; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes to “scrape” or download data from any web pages contained in the Services; (e) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Nearabl, its suppliers and service providers reserve all rights not granted in the Agreement.
1.5 Nearabl Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail and push notifications. Communications from us may include but are not limited to: operational communications concerning your Account or the use of the Services and updates concerning new and existing features on the Services.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Nearabl through the Services (“Account”), has a valid account on a social networking service (“SNS”) through which the user has connected to the Services (each such account, a “SNS Account”), or has an account with the provider of the Mobile App for the user’s mobile device.
2.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services or the Mobile App, you may link your Account with SNS Accounts by allowing Nearabl to access your SNS Account, as is permitted under the applicable terms and conditions that govern your SNS Account. You represent that you are entitled to grant Nearabl access to your SNS Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your SNS Account and without obligating Nearabl to pay any fees or making Nearabl subject to any usage limitations imposed by such SNS. Depending on the SNS Accounts you choose and subject to the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services. Please note that if a SNS Account or associated service becomes unavailable, or Nearabl’s access to such SNS Account is terminated by the SNS, then you will no longer be able to create an SNS Account. You have the ability to disable the connection between your Account and your SNS Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS PROVIDERS, AND NEARABL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SNS ACCOUNTS.
2.3 Registration Data. In registering an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”). You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Mobile App under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Nearabl immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. You agree not to create an Account or use the Services if you have been previously removed by Nearabl, or if you have been previously banned from any of the Services.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nearabl.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Mobile App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3. OWNERSHIP.
3.1 Services. You agree that Nearabl and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, source code or object code, proprietary methods, systems, themes, objects, concepts, methods of operation, moral rights, documentation, and Nearabl software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
3.2 Trademarks. Nearabl’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Nearabl and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nearabl through (“Feedback”) is at your own risk and that Nearabl has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nearabl a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Nearabl’s business.
4. USER CONDUCT. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (i) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (ii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Mobile App.
5. INDEMNIFICATION. You agree to indemnify and hold Nearabl, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Nearabl Party” and collectively, the “Nearabl Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (b) your use of any Service in violation of the Agreement; or (c) your violation of any applicable laws, rules or regulations. Nearabl reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Nearabl in asserting any available defenses. This provision does not require you to indemnify any of the Nearabl Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
6. DISCLAIMER OF WARRANTIES AND CONDITIONS.
6.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEARABL EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) NEARABL MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NEARABL OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(c) FROM TIME TO TIME, NEARABL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT NEARABL’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
6.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NEARABL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NEARABL PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
7. LIMITATION OF LIABILITY.
7.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER LAW, IN NO EVENT SHALL NEARABL PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES.
7.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, NEARABL PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN $100.
7.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEARABL AND YOU.
8. RELEASE. To the fullest extent permitted under applicable law, you hereby release Nearabl Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Mobile App and the Services. This release will be binding upon your relatives, spouse, heirs, next of kin, executors, administrators, and any other interested parties. You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in the Agreement are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Mobile App and the Services. California Civil Code Section 1542 provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
9. MONITORING AND ENFORCEMENT. Nearabl reserves the right to: (a) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (b) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. If Nearabl becomes aware of any possible violations by you of the Agreement, Nearabl reserves the right to investigate such violations. If, as a result of the investigation, Nearabl believes that criminal activity has occurred, Nearabl reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.
10. TERM AND TERMINATION.
10.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
10.2 Termination of Services by Nearabl. Nearabl has the right to, immediately and without notice, suspend or terminate any Services provided to you, or to cease providing the Services altogether. You agree that all terminations shall be made in Nearabl’s sole discretion and that Nearabl shall not be liable to you or any third party for any termination of your Account.
10.3 Termination of Services by You. If you want to terminate the Services provided by Nearabl, you may do so by (a) notifying Nearabl at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Nearabl’s address or e-mail address set forth below.
10.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Upon termination of any Service, your right to use such Service will automatically terminate immediately. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
10.5 No Subsequent Registration. If your registration(s) with, or ability to access, the Services is discontinued by Nearabl due to your violation of any portion of the Agreement, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Nearabl reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Nearabl intends to announce such Services or Content in your country. The Services are controlled and offered by Nearabl from its facilities in the United States of America. Nearabl makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
12. THIRD-PARTY SERVICES.
12.1 Third Party Links. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Nearabl does not control and is not responsible for Third-Party Links. Nearabl provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
12.2 App Stores. You acknowledge and agree that the availability of the Mobile App and the Services is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store (each, an “App Store”). You acknowledge that the Agreement is between you and Nearabl and not with the App Store. Nearabl, not the App Store, is solely responsible for the Services, including the Mobile App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
12.3 Accessing and Downloading the Mobile App from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Nearabl only, and not Apple, and (ii) Nearabl, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Nearabl and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nearabl.
(d) You and Nearabl acknowledge that, as between Nearabl and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Nearabl acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Nearabl and Apple, Nearabl, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Nearabl acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
13. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with the Nearabl Parties and limits the manner in which you can seek relief from the Nearabl Parties.
13.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us (or other Nearabl Parties) relating in any way to the Services or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the Nearabl Parties may assert claims in small claims court if the claims qualify; and (2) you or the Nearabl Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: United Corporate Services, Inc., 874 Walker Road, Suite C, Dover, Delaware 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.comor by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Nearabl will pay them for you.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. Without limiting the scope of Section 14.1, the arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the Nearabl Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND THE NEARABL PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Nearabl Parties are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS BY OR AGAINST ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF OR AGAINST ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 14.5’s limitations as to a given claim for relief, then the applicable claim, and only that applicable claim, must be severed from the arbitration and brought into the state or federal courts located in the State of New York in accordance with Section 15.1. All other claims shall be arbitrated.
13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Nearabl Inc., 874 Walker Road, Suite C, Dover, DE, 19904, .Attn: Support or email to [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us or other Nearabl Parties.
13.7 Severability. Except as provided in Section 14.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Nearabl.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nearabl makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Nearabl at the following address: Nearabl Inc. 874 Walker Road, Suite C, Dover, DE, 19904,
14. GENERAL PROVISIONS.
14.1 Governing Law; Exclusive Venue. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK. Both you and Nearabl agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.
14.2 Electronic Communications. The communications between you and Nearabl may take place via electronic means. For contractual purposes, you (a) consent to receive communications from Nearabl in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nearabl provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
14.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nearabl’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure. Nearabl shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.6 Notice. Where Nearabl requires that you provide an e-mail address, you are responsible for providing Nearabl with your most current e-mail address. In the event that the last e-mail address you provided to Nearabl is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Nearabl’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nearabl at the following address or e-mail address: 874 Walker Road, Suite C, Dover, DE, 19904, [email protected]. Such notice shall be deemed given when received by Nearabl by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.8 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.9 Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Nearabl are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Nearabl products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.10 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
14.11 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.