By utilizing the Nash Platform (defined below) or by otherwise indicating your consent to these Nash Marketplace Customer Terms of Service (the “Terms”) you acknowledge and agree to all of the terms and provisions contained herein. Nash Technologies, the provider of the Nash Platform, is referred to herein as “Nash.” And you are referred to herein as “Customer.” Nash and Customer are collectively referred to herein as the “Parties.” If you are agreeing to these Terms on behalf of an organization or any entity other than yourself, you hereby represent and warrant that you have been authorized to do so by such organization or entity.
“Delivery Provider” means an individual or entity that will fulfill an Order by delivering Goods to a Recipient.
“Goods” means the items described in an Order that will be delivered to the Recipient.
“Marketplace Customer” has the meaning specified in Section 3(C) below.
“Marketplace Platform” means a third party technology platform that is integrated with the Nash Platform and that enables the exchange of information regarding Orders and related Goods between such Marketplace Platform and the Nash Platform. The Marketplace Platform may be operated by Customer or, if Customer is a Merchant, by a third party.
“Merchant” means the business that places an Order for Goods to be delivered to a Recipient. To the extent Customer places an Order directly via the Nash Platform for delivery of Customer’s Goods to a Recipient, the term “Merchant” as used in these Terms includes Customer.
“Nash API” means the Nash application programming interface that enables the exchange of information between Nash and the Customer or a Marketplace Platform, as applicable.
“Nash Platform” means the Nash API, Nash website, documentation, software and any related Nash technology made available by Nash to Customer under these Terms (including any mobile application and web-based platform, if and when developed and made available by Nash) designed to facilitate the submission and receipt of information regarding Orders and related Goods.
“Order” means a delivery instruction placed by a Merchant either (i) directly through the Nash Platform or (ii) through a Marketplace Platform that sends the instruction to or processes the instruction using the Nash Platform, in each case which delivery instruction is accepted by Nash for fulfillment by a Delivery Provider.
“Recipient” means the business or other entity to which Goods subject to an Order will be delivered.
2) Nash Responsibilities
A. Nash Platform. Nash will make the applicable portions of the Nash Platform available to Customer, as necessary to exchange information regarding and process Orders in accordance with these Terms and the then-current Nash policies specified on the Nash Platform and its related documentation.
B. Support and Service Levels. Nash will provide technical support to Customer by electronic mail and phone in connection with its use of the Nash Platform during the hours of 12:00 a.m. to 11:59 p.m. Pacific Time, (“Support Hours”), subject to the following condition: Customer will reasonably cooperate with Nash support staff as needed to resolve the issue. Customer may initiate a help desk ticket during Support Hours by emailing Nash at email@example.com. Nash will use commercially reasonable efforts to make the Nash Platform available, twenty-four hours a day, seven days a week, except for excused downtime, which, for purposes of these Terms, means (i) planned downtime which shall only occur between the hours of midnight and 3am Pacific Time (with reasonable advance notice to Customer) of the Nash Platform; (ii) emergency downtime of the Nash Platform; and (iii) any unavailability of the Nash Platform caused by circumstances beyond Nash’s reasonable control.
C. Integration. Upon reasonable request from Customer, Nash will cooperate with Customer to integrate Customer’s systems and, if applicable, the Marketplace Platform systems with the Nash API and other elements of the Nash Platform.
3) Customer Responsibilities
1. Order Information. Customer will provide all information required to fulfill each Order processed via the Nash Platform, including the Recipient’s address, contact information and any special instructions required for fulfillment of an Order. If Customer operates a Marketplace Platform that receives Order information from Merchants, Customer shall promptly provide all Order information received from a Merchant without alteration to Nash via the Nash API or other element of the Nash Platform as agreed between Customer and Nash. Customer is responsible for any liability arising from inaccurate or incomplete information provided by the Customer.
B. Requested Delivery Requirements. Nash will use commercially reasonable efforts to match Customer’s Orders to available Delivery Providers that are willing to comply with any Requested Delivery Requirements. Customer acknowledges, however, that the availability of such Delivery Providers may vary from time to time, and that Nash makes no representations or warranties that any Delivery Partner identified by the Nash Platform will meet the Requested Delivery Requirements.
C. Consents. Customer is responsible for obtaining, or causing to be obtained, all consents, permissions and approvals from Recipients and, if Customer operates a Marketplace Platform, from Merchants, in each case as necessary for Nash to use the Order information, contact information (including telephone numbers) and other information received from Recipients or, if applicable, Merchants, in each case to enable tracking, delivery and fulfillment of Orders by Nash and the applicable Delivery Providers, including any consents, permissions or approvals necessary from Recipients and Merchants necessary to contact the Recipients and Merchants and provide delivery status updates and other information regarding Orders by email, text messages, and telephone communications; provided that if Customer operates a Marketplace Platform and Nash has an agreement with the applicable Merchants with respect to use of the Nash Platform via such Marketplace Platform (such Customers, “Marketplace Customers”) then such Merchants will be responsible for obtaining such consents, permissions and approvals. To the extent Nash and/or the applicable Delivery Providers communicate directly with Recipients, such communications are limited only to transactional information regarding Orders and may not include any marketing content, and both Nash and the applicable Delivery Providers will honor any Recipient opt-out requests from further communication whether made via email, text message, or telephone.
D. Gratuities. To the extent that Recipients have the option of designating gratuities or tips to the Delivery Provider when they place or accept Orders (“Tips”), Customer shall pay the entire amount of such Tips to Nash so that Nash may pass such Tips to the Delivery Providers who fulfill such Orders. Nash is not responsible for the payment to Delivery Providers of any Tips that Customer does not promptly pay to Nash in connection with an Order.
E. Pass-Through Terms. In the event Customer makes the Nash Platform available to Merchants with which Nash does not have a direct contractual relationship regarding the use of the Nash Platform, Customer shall enter into an agreement with such Merchants regarding Merchant’s use of the Nash Platform that include terms at least as protective of Nash as the terms contained in these Terms (each, a “Merchant Agreement”) before making the Nash Platform available to such Merchants, and such agreement shall contain terms.
G. Compliance with Laws. Customer shall comply with all applicable laws and regulations in connection with the performance of its obligations or exercise of its rights under these Terms, including holding any licenses, permits or insurance that may be legally required to sell products included in Orders.
4) Delivery Provider Terms
Orders may be subject to the terms and conditions imposed on such Order by the applicable Delivery Provider, such as the Delivery Provider’s cancellation and refund policies, as well as terms of carriage (“Delivery Provider Terms”) and that the fulfillment of the applicable Order by such Delivery Provider may be contingent upon Customer’s acceptance of such terms. Customer agrees that it is solely responsible for its compliance with Delivery Provider Terms, and that in the event of any issue related to the fulfillment of any Order, Customer will follow any support, refund, cancellation and other relevant terms, conditions and policies set forth in the applicable Delivery Provider Terms. Notwithstanding the foregoing, in the event such Delivery Provider Terms conflict with the Square On-Demand Delivery (ODD) Terms of Service (https://squareup.com/us/en/legal/general/odd-tos), the Square On-Demand Delivery Terms of Service shall prevail.
In addition to fees that will be due to the Delivery Provider, Customer shall also pay any and all other fees presented conspicuously to Customer by Nash, including but not limited to platform fees, service fees, catering and other task specific fees, and Nash delivery orchestration fees. Whether Customer is paying via credit card, debit card, or ACH (“Payment Method”), Customer shall provide accurate and complete card information as necessary to enable Nash to charge Customer’s card for amounts due hereunder. Payments will be charged to Customer’s Payment Method on the schedule presented to Customer by Nash within the Nash account creation process or within the account, or as otherwise agreed between the Parties. By providing the Payment Method to Nash, Customer thereby authorizes Nash and our payment processor to collect, store, transfer, and charge the Payment Method, at a schedule determined by Nash, for an amount equivalent to the total Nash Delivery Fees that are owed to Nash as well as any additional fees, taxes, or surcharges that may apply. If Customer’s primary Payment Method is determined to be expired, invalid, or otherwise not able to be charged, Customer agrees that we may use a secondary Payment Method in Customer’s account, if available. We reserve the right to revoke access to any feature, product, or component of the Nash Platform in the event that we are unable to charge the Payment Method for amounts that are due. Charges paid by Customer are final and non-refundable, unless otherwise determined by Nash. Nash may use a third-party payment processor to bill Customer through the Payment Method linked to Customer’s account. Notwithstanding any amounts owed to Nash hereunder, Nash does not process payments for any services. Nash assumes no liability or responsibility for any payments Customer makes for use of the Nash Platform. Customer must provide and maintain a current, complete and accurate Payment Method. Customer represents and warrants that Customer has the legal right to use any such Payment Method. Nash reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. If Nash, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on the account upon demand. Customer authorizes Nash to attempt repeat charges on the Payment Method if an initial attempt to charge fails.
6) Term and Termination
A. Term and Termination. Customer is free to cease using the Nash Platform at any time, with no prior notice to Nash. Customer agrees that Nash, in its sole discretion, may suspend or terminate Customer’s account (or any part thereof) or use of the Nash Platform and remove and discard any content within the Nash Platform, for any reason, including for lack of use or if Nash believes that Customer has violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Customer’s use of the Nash Platform, may be referred to appropriate law enforcement authorities. Nash may also in its sole discretion and at any time discontinue providing the Nash Platform, or any part thereof, upon written notice. Customer agrees that any termination of access to the Nash Platform under any provision of these Terms may be effected upon written notice and acknowledge and agree that Nash may immediately deactivate Customer’s account and, other than Delivery Record information collected for deliveries of orders containing alcoholic beverages as may be required by the alcohol beverage laws in the state of Customer’s location (including without limitation the quantity, brand, proof and price of the alcohol beverages in the Order, as well as the name and address of the Recipient and the Customer) (collectively, “Delivery Record”), which shall be made available to Customer upon request for a period of three years following delivery, may delete all related information and files in Customer’s account and/or bar any further access to such files or the Nash Platform. Further, Customer agrees that Nash will not be liable to Customer or any third party for any termination of Customer’s access to the Nash Platform.
B. Effect of Termination. Effect of Termination. Upon expiration or termination of these Terms for any reason: (i) the Receiving Party will promptly return to the Disclosing Party (as each such term is defined in Section 9(A) below) or destroy all Confidential Information disclosed by or on behalf of the Disclosing Party in connection herewith; (ii) Customer shall pay Nash any outstanding fees; and (iii) this Section 6(B) and Sections 5 and 8 through 15 of these Terms will survive any such expiration or termination and continue in full force and effect (for the period contemplated thereby, to the extent applicable).
7) Use of Nash Platform
A. License. Nash grants to Customer during the Term a non-exclusive, non-transferable license to access and use the Nash Platform solely to exercise its rights and perform its obligations under these Terms.
B. Certain Restrictions. Customer shall not, and shall not allow any third party, including its personnel, to: (i) make the Nash Platform available to any third party or use the Nash Platform for the benefit of anyone other than Customer unless expressly permitted otherwise in these Terms; (ii) sell, resell, license, sublicense, distribute, make available, rent or lease the Nash Platform; (iii) use the Nash Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use the Nash Platform to store or transmit malicious code; (v) attempt to circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to, the Nash Platform or related systems or networks; (vi) permit direct or indirect access to or use the Nash Platform in a way that circumvents these Terms; (vii) modify, copy, or create derivative works based on the Nash Platform or any part, feature, function or user interface thereof; or (viii) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Nash Platform or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics, or (3) copy any ideas, features, functions or graphics.
C. Modifications. Nash reserves the right to modify, suspend, or discontinue the Nash Platform or any part thereof provided Nash implements the foregoing in the same manner with respect to all similarly situated Nash customers.
D. Suspension. Nash may suspend access to all or a portion of the Nash Platform (including the Nash API) in the event Customer violates these Terms or uses the Nash Platform in a manner that does or could cause harm to Nash, Merchants, Recipients or other third parties. Nash will notify Customer of any such suspension.
E. Ownership. Nash owns all right, title, and interest in and to the Nash Platform. Neither Nash nor Customer shall obtain any ownership right in any Goods under these Terms.
8) Confidential Information
A. Definition. The term “Confidential Information” shall mean any business, technical or financial information or materials of a Party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with these Terms that the Receiving Party knew or should reasonably know under the circumstances and/or by the nature of the information, is the confidential information of the Disclosing Party. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with these Terms; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
B. Use and Disclosure. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with these Terms; (ii) except subject to its compliance with Section 8(C), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
C. Compelled Disclosures. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 8 and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
THE NASH PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." NASH EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT NASH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, LOSS OF GOODS, ACTS OR OMISSIONS OF DELIVERY PROVIDERS OR RECIPIENTS, INCORRECT MERCHANT OR RECIPIENT INFORMATION, INCORRECT CUSTOMER INFORMATION, OR ANY CLAIMS, DAMAGES, PENALTIES OR OTHER LIABILITIES CAUSED BY OR RESULTING FROM ANY OF THE FOREGOING. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE NASH PLATFORM MAY BE UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS AND CUSTOMER AGREES THAT NASH WILL HAVE NO LIABILITY ARISING FROM ANY SUCH INTERRUPTIONS AND THAT NASH IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY COMMUNICATIONS NETWORK OR SERVICE OR ANY OUTAGES OR OTHER FAILURES OF ANY THIRD PARTY HOSTING PROVIDERS OR OTHER PROVIDERS OF INFORMATION TECHNOLOGY SERVICES.
10) Limitation of Liability.
IN NO EVENT WILL NASH BE LIABLE TO CUSTOMER UNDER THESE TERMS FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE LIKE OR FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NASH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NASH’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE UNDER THESE TERMS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY. WITHOUT LIMITING THE FOREGOING, NASH SHALL HAVE NO LIABILITY WITH RESPECT TO LATE OR DAMAGED DELIVERIES OR OTHER ACTS OF, OMISSIONS OF, OR FAILURES CAUSED BY DELIVERY PROVIDERS, INCLUDING ANY DAMAGE TO OR LOSS OF ANY GOODS.
Customer agrees to indemnify Nash, its affiliates, members, managers, partners, officers, directors and employees (the “Nash Indemnitees”) from and against any and all claims, costs, liabilities, damages, judgments and reasonable attorneys’ fees (collectively, “Losses”) asserted against or incurred by Nash in connection with any third-party claim or demand that arises out of or relates to (a) Customer’s fraud, gross negligence, bad faith or willful misconduct; (b) Customer’s violation of applicable laws regulations; (c) Customer’s infringement or misappropriation of intellectual property rights of a third party; or (d) Customer’s breach of these Terms.
12) Relationship of the Parties
A. Platform Only. The Nash Platform is a web-based technology that connects Customer, Merchants and Delivery Providers as described in these Terms. Nash is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Customer acknowledges that the services provided by Nash are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b) or any similar statute or regulation.
B. Independent Contractors. Customer and Nash agree they are independent businesses whose relationship is governed by these Terms. Nothing in these Terms or the Parties’ relationship or related transactions shall create or be construed as creating an agency, fiduciary or joint venture relationship between Nash and Customer. These Terms do not make either Party an agent, legal representative, joint venture, or partner of the other Party for any purpose.
13) Modifications to these Terms.
Customer agree that Nash may modify the terms of these Terms from time to time. In the event Nash makes any material changes to the Terms, Nash will notify Customer by electronic mail, via a notice on the Nash Platform, or other means of communication. Any changes to these Terms will be effective upon the earlier of (i) the date Customer accepts the new terms by using the Nash Platform after receipt of the foregoing notice or otherwise or (ii) 30 calendar days following Customer’s receipt of such notice.
14) Resolution by Binding Arbitration. Please read this section carefully as it affects your rights.
A. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Nash, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Nash are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
B. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND NASH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND NASH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
C. Pre-Arbitration Dispute Resolution. Pre-Arbitration Dispute Resolution. Nash is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a Party party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Nash should be sent to Nash Technologies, Inc., 2261 Market Street #4286, San Francisco CA 94114 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Nash and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Nash may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Nash or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Nash is entitled.
D. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Nash and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Nash agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
E. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Nash will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Nash will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Nash will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
F. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
G. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
H. Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, Nash agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Nash written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire agreement between the Parties relating to the subject matter hereof supersedes all prior agreements and communications of the Parties, oral or written, with respect to such subject matter. Customer may not assign these Terms in whole or in part without Nash’s prior written consent and any attempted assignment without such consent shall be null and void. These Terms are binding upon, and inures to the benefit of, the permitted successors and assigns of each Party, but shall not confer any rights or remedies upon any third party. Nash makes no representation that the Nash Platform is appropriate or available for use in Customer’s jurisdiction. If Customer chooses to access the Nash Platform, Customer does so on its own initiative and is responsible for compliance with any applicable local, state, and federal laws, rules and regulations.
Customer agrees that, while Customer is utilizing the Nash Platform, Nash may use Customer’s name, logo, and marks (“Marks”) on Nash’s website and marketing materials, for the sole purpose of identifying Customer as a current customer, and hereby grants Nash a limited worldwide, revocable, fully paid up, non-sublicensable license to use the marks solely for that limited purpose.
17) Governing Law and Venue
Except as otherwise provided herein, these Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. With respect to any disputes or claims not subject to arbitration, Customer hereby agrees to submit to the personal and exclusive jurisdiction of the state and federal courts located within the Northern District of California.
18) Waiver of Rights
Nash’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Nash. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19) General Prohibitions
Customer agrees not to do any of the following:
- use, display, mirror or frame the Nash Platform or any individual element within the Nash Platform, Nash’s name, any Nash trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Nash’s express written consent;
- use the Nash Platform in any manner that violates federal, state, local, or international law or regulation, including, without limitation, any laws regarding related to the export of data or software to and from the US or other countries;
- access, tamper with, or use non-public areas of the Nash Platform, Nash’s computer systems, or the technical delivery systems of Nash’s providers;
- impersonate or attempt to impersonate Nash, a Nash employee, contractor or agent, another User, or any other person or entity;
- attempt to probe, scan or test the vulnerability of any Nash system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Nash or any of Nash’s providers or any other third party (including another User) to protect the Nash Platform;
- use any robot, spider, or other automatic device, process, or means to access the Nash Platform for any purpose, including monitoring or copying any material on the Nash Platform;
- attempt to gain unauthorized access to, damage, disrupt, or interfere with any parts of the Nash Platform, or any server, computer or database connected to the Nash Platform;
- attempt to decipher, decompile, disassemble or reverse engineer the Nash Platform (including the App) or any of the software used to operate the Nash Platform;
- collect or store any personally identifiable information from the Nash Platform; and/or
- encourage or enable any other individual to do any of the foregoing.