Terms of Use
Welcome, and thank you for your interest in Nipsto, Inc. (“Nipsto,” “we,” or “us”) and our website at nipsto.com, along with our related websites, networks, applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Nipsto regarding your use of the Service.
1. Our Products
1.1. We deliver our Products through our web applications and mobile applications (each, an “Application,” and collectively, “Applications”) available at app.nipsto.com (each, a “Site”). The features and services available to you will be based on your subscription plan (“Plan”). If you signed a service order, the details of your Plan will be provided on your service order. If you purchased a Product within the Application, the details of your Plan will be set forth on the “Billing” page within the Application. The Products specifically exclude any third-party database or Third-Party Services (as defined in Section 5).
1.2. We reserve the right to modify features and functionality of our Products from time to time in our sole discretion. We will determine in our sole discretion whether any new features require additional fees. We may decide to add new features to the Products and make them generally available at no cost to Customers. We may or may not provide notice to you of changes to the Products. We will not be liable to you or to any third party for any modifications, price increases, or discontinuations of our Products.
2. Registering Users on Our Application
2.1. Except as set forth in Section 10 (Agencies), you agree that you will only access our Applications for your internal business purposes and are subject to these Terms. After any free trial of our Products, you will be required to register for our Application and pay a subscription fee for the use of our Products. You must pay such subscription fees on the first day of your subscription term unless otherwise specified on your service order.
2.2. If you, as a Customer, add Users to your account, you must bind each of the Users to these Terms. You are responsible for all information, data, content, messages or other materials that you or your Users post or otherwise transmit via the Applications (collectively, “Content”). You acknowledge and agree that a login may only be used by one (1) person, and that you will not share a single login among multiple people. You are responsible for maintaining the confidentiality of your login and account and are fully responsible for any and all activities that occur under or in connection with your login or account. You agree that you will not trade, transfer, or sell access to your login or account to another party unless otherwise agreed to in writing by Nipsto.
2.3. As a User, you represent and warrant that you are: (i) 18 years or older, (ii) not prohibited or restricted from having a Nipsto account, and (iii) not a competitor of or using the Products for purposes that are competitive with Nipsto.
2.4. You agree to use reasonable efforts to prevent unauthorized use of the Products and notify us immediately if you discover any unauthorized use through your account. You will take all necessary steps to terminate the unauthorized use and agree to cooperate with us in preventing or terminating such unauthorized use of the Products.
3. Availability of Service
3.1. While we will use commercially reasonable efforts to keep our Applications available and accessible, the Applications may be unavailable from time to time for repairs, upgrades, routine and emergency maintenance, or other interruptions that may be out of our reasonable control, including any outages of Third-Party Services (as defined in Section 5) or any related application programming interface (“APIs”) and integrations. Interruptions of our Applications shall not serve as a basis to terminate your subscription or demand any full or partial refunds or credits of prepaid and unused subscription fees.
4. Our Use of Third Part Integrations and Services
4.1. Our Applications may contain links to or allow you to connect and use certain external third-party products, services, or software in conjunction with your use of our Applications and Products (“Third Party Services,” and each, a “Third Party Service”), including certain social media networks and other integration partners. To take advantage of these features, you may be required to sign up or log into such Third Party Services on their respective websites or applications. By enabling the Applications to access such Third Party Services, you are permitting Nipsto to pass on your login information to the Third Party Service and granting the Third Party Service permission to access or otherwise process your data. You acknowledge that your use of such Third Party Service is governed solely by the terms and conditions and privacy policy of such Third Party Service (including, but not limited to, the Twitter Terms of Service located at www.twitter.com/tos and the YouTube Terms of Service located at https://www.youtube.com/t/terms), and that Nipsto does not endorse, is not liable for, and makes no representations as to the Third Party Service, its content, or the manner in which such Third Party Service uses, stores, or processes your data. We are not liable for any damage or loss arising from or in connection with your enablement of such Third Party Service and your reliance on the policies, privacy practices, and data security processes of such Third Party Service. We are not responsible or liable for any changes to or deletion of your data by the Third Party Service. Certain features of our Products may depend on the availability of these Third Party Services and the features and functionality they make available to us. We do not control Third Party Service features and functionality, and they may change without any notice to us. If any Third Party Service stops providing access to some or all of the features or functionality currently or historically available to us, or stops providing access to such features and functionality on reasonable terms, as determined by Nipsto in our sole discretion, we may stop providing access to certain features and functionality of our Products. We will not be liable to you for any refunds or any damage or loss arising from or in connection with any such change made by the Third Party Service or any resulting change to our Products. You irrevocably waive any claim against Nipsto with respect to such Third Party Services.
5. Payment Terms
Premium features of the Service will require you to pay fees upon registering for the applicable premium service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Fees vary based on the plan, with different pricing schemes for individual users and organizations.
5.1. Price
Nipsto reserves the right to determine pricing for the Service. Nipsto will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information, located here: https://nipsto.com/pricing. Nipsto may change the fees for any feature of the Service, including additional fees or charges, if Nipsto gives you advance notice of changes before they apply. Nipsto, at its sole discretion, may make promotional offers with different features and different pricing to any of Nipsto’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
5.2. Authorization
You authorize Nipsto to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Nipsto, to the payment method specified in your account. If you pay any fees with a credit card, Nipsto may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5.3. Subscription Service and Cancellation Policy
The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Nipsto to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see our Pricing page. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information).
5.4. Delinquent Accounts
Nipsto may suspend or terminate access to the Service for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
6. Licenses
6.1. Permission to Use
Subject to your complete and ongoing compliance with these Terms, Nipsto grants you limited, non-transferable, non-sublicensable, revocable permission to access and use the Service for your personal, internal use during the Term at the level of service for which you have paid all applicable Fees.
6.2. Restrictions
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it. You may not use the Service on behalf of any third party, or in a service bureau or similar capacity.
6.3 Feedback
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Nipsto an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
7. Ownership; Proprietary Rights
The Service is owned and operated by Nipsto. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, templates, and all other elements of the Service (“Materials”) provided by Nipsto are protected by intellectual property and other laws. All Materials included in the Service are the property of Nipsto or its third-party licensors. Except as expressly authorized by Nipsto, you may not make use of the Materials. Nipsto reserves all rights to the Materials not granted expressly in these Terms.
8. Third Part Terms
8.1. Third-Party Services and Linked Websites
Nipsto provides tools through the Service that enable you to import and export information, including User Content, to and from third-party services, including through features that allow you to link your account on Nipsto with an account on a third-party social networks service, such as Twitter or Facebook. By using one of these tools, you agree that Nipsto may transfer that information to and from the applicable third-party service. Third-party services are not under Nipsto’s control, and Nipsto is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Nipsto’s control, and Nipsto is not responsible for their content.
8.2 Third Party Software
The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
9. User Content
9.1. User Content Generally
Certain features of the Service may permit users to upload content to the Service, including social media posts and other content which may be comprised of messages, reviews, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service. Nevertheless, we need certain permission from you in order to provide the Service.
9.2. Limited License Grant to Nipsto
By providing User Content to or via the Service, you grant Nipsto a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
9.3. Limited License Grant to Other Users
By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
9.4. User Content Representations and Warranties
By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Nipsto and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Nipsto, the Service, and these Terms;
(b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Nipsto to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
(d) your User Content does not and will not contain Hateful Content, a Threat of Physical Harm, or Harassment
The following serves as a guide to help illustrate generally the types of content that fall within the scope of Nipsto’s policy on Hateful Content, Threats of Physical Harm, and Harassment, but is not exhaustive. For the avoidance of doubt, your User Content may not include, and Nipsto may remove or refuse to publish or promote any User Content that violates the terms or policies of any third-party platform with which Nipsto’s Services integrate or interoperate.
Hateful Content includes:
Any statement, image, photograph, or other content that in our sole judgment could be reasonably perceived to harm, threaten, demean, promote the harassment of, promote the intimidation of, or promote the abuse of others for any reason, including by reason of race, gender or gender identity, national origin, sexual orientation, religion, or otherwise.
A Threat to Physical Harm includes:
Any statement, photograph, advertisement, or other content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others, including references to current or historical figures or groups that are known for purporting such content, such as the Ku Klux Klan, Nazi Party, and the like.
Harassment includes:
- Revealing someone’s personal information, also known as “doxxing”.
- Online stalking, and bullying.
- Wishes for physical harm directed at a person or persons.
- Incitement of others to any of the previous items.
We reserve the right to suspend or terminate accounts and remove individual posts which contain Hateful Content, a Threat of Physical Harm, or Harassment.
We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:
- An organization which has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content, Harassment, or A Threat of Physical Harm.
- A person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content, Harassment, or A Threat of Physical Harm.
Notwithstanding the foregoing, we reserve the right to screen, remove, edit, or block any User Content we find in violation of the Terms or that we find, in our sole discretion to be otherwise objectionable, at our sole discretion.
9.5 User Content Disclaimer
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Nipsto may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Nipsto with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Nipsto does not permit copyright-infringing activities on the Service.
9.6 Monitoring Content
Nipsto does not control and does not have any obligation to monitor: (a) User Content; (ii) any content made available by third parties; or (iii) the use of the Service by its users. You acknowledge and agree that Nipsto reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Nipsto chooses to monitor the content, Nipsto still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
10. Prohibited Conduct
BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; or (iii) hacking, password “mining” or using any other illegitimate means of interference;
- modify or create derivatives of any part of the Service;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- take action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service of Nipsto’s systems or networks, or any systems or networks connected to the Service or Nipsto;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Digital Millennium Copyright Act
11.1 DMCA Notification
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Nipsto, Inc.
ATTN: Copyright Notification
16192 Coastal Hwy
Lewes, DE 19958
Email: copyright@nipsto.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11.2 Repeat Infringers
It is Nipsto’s policy to promptly terminate the accounts of users that are determined by Nipsto to be repeat infringers.
12. Modification of these terms
We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Modifications will become effective upon the earlier of (a) your acceptance of the modified Terms, (b) your use of the Service with actual knowledge of the modified Terms, or (c) thirty (30) days following our publication of the modified Terms through the Service. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination and Modification of the Service
13.1 Term
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2 Termination
If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Nipsto may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time as provided in Section 5.3 or by contacting customer service at hello@nipsto.com.
13.3 Effect of Termination
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Nipsto any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 6.3, 7, 13.3, 14, 15, 16, 17 and 18 will survive.
13.4 Modification of Service
Nipsto reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Nipsto will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. Premium service fees are not refundable.
14. Indemnity
You are responsible for your use of the Service, and you will defend and indemnify Nipsto and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Nipsto Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NIPSTO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NIPSTO DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND NIPSTO DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR NIPSTO ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NIPSTO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
HOWEVER, NIPSTO DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT NIPSTO IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE NIPSTO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY NIPSTO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.4(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE NIPSTO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO NIPSTO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1 Generally
In the interest of resolving disputes between you and Nipsto in the most expedient and cost-effective manner, and except as described in Section 17.2, you and Nipsto agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NIPSTO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions
Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Arbitrator
Any arbitration between you and Nipsto will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Nipsto. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.4 Notice of Arbitration; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Nipsto’s address for Notice is: Nipsto, Inc., 16192 Coastal Hwy, Lewes, DE 19958. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Nipsto may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Nipsto must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Nipsto will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Nipsto in settlement of the dispute prior to the arbitrator’s award; or (iii) $5,000.
17.5 Fees
If you commence arbitration in accordance with these Terms, Nipsto will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Nipsto for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Action
YOU AND NIPSTO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Nipsto agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications of this Arbitration Provision
If Nipsto makes any future change to this arbitration provision, other than a change to Nipsto’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Nipsto’s address for Notice of Arbitration, in which case your account with Nipsto will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.8 Enforceability
If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.1 will govern any action arising out of or related to these Terms.
18. General Terms
These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Nipsto regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.1 Governing Law
These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Nipsto submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Sussex County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
18.2 Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.3 Contact Information
The Service is offered by Nipsto, Inc. located at 16192 Coastal Hwy, Lewes, DE 19958. You may contact us by sending correspondence to that address or by emailing us at hello@nipsto.com. You can access a copy of these Terms by clicking here: nipsto.com/terms
18.4 Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.5 International Use
Access to the Service from countries or territories or by individuals where such access is illegal is prohibited