The following Terms of Service ("Terms") govern your use of the Nixplay digital photo frame, e-store, services and paid services, including your use and access to all related websites, hardware products, including but not limited to, Nixplay digital photo frames, networks, software, mobile applications and other products and services provided by Nixplay ("Service"). The Service is operated by Creedon Technologies USA, LLC, apart from the domain www.nixplay.co.uk, which is owned and operated by Creedon Technologies Limited, UK d/b/a NIXPLAY ("Nix", "Nixplay"). These Terms apply to all personal users, business users, visitors, or any others who use and access the Service (collectively, "Users").
Please review all of the Terms carefully. By using any of the Service provided or operated by Nixplay, you signify that you have read, understood and agreed to be bound by these Terms, including all Nixplay policies referenced, that apply to your use of the Service. If you are agreeing to these Terms for use by an organization or company, you are agreeing to these terms on behalf of that organization (in such a case, the terms "you" and "your", as used in these Terms, shall apply to both you and your organization). Your use of the Service is subject to the following terms and all applicable laws. By accessing the Service, you accept, without limitation or qualification, these Terms. If you do not agree with any of the Terms, please do not use the Service. You are responsible for ensuring that your access to the Service and the material available on or through it are legal in each jurisdiction in or through which you access or view the website or mobile app or such material.
The Nixplay Privacy Policy, click here, which you agreed to when you registered your account also applies to this Service and is incorporated by reference as part of these Terms.
These Terms provide that all disputes between you and Nixplay will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 18 below for the details regarding your agreement to arbitrate any disputes with Nixplay
Nixplay Services.
You may access and use the Service under the terms and conditions of these Terms.
The Service allows you to
add, remove and arrange your photos and other audio-visual content ("Content") through your web
browser and/or mobile app for display on a paired Nixplay photo frame. Your accepted contacts/friends
will also be able to send and receive Content from you according to your settings. The Nixplay digital
photo frame is purchased separately and may be subject to additional terms and conditions. Nixplay
and its affiliates attempt to be as accurate as possible in describing all products available for
sale. However, Nixplay does not warrant that product descriptions or other content of this website
and/or mobile app are accurate, complete, reliable, current or error-free. The prices, details and availability of
features provided by this Service are subject to change without notice. This
website and/or mobile app and its contents are not to be construed as an offer to sell any product
or service.
Eligibility.
You must be at least sixteen (16) years of age to use the Service. By agreeing to these Terms, you
represent and warrant to us: (i) that you are at least sixteen (16) years of age; (ii) that you have not
previously been suspended or removed from the Service; and (iii) that your registration and your
use of the Service is in compliance with any and all applicable laws and regulations. If you are
using the Service on behalf of an organization or company, you represent and warrant that you
have the authority to bind such organization to these Terms and you agree to be bound by these
Terms on behalf of such organization.
Accounts and Registration.
To access the features of
the Service, you must register for an account. When you register for an account, you may be
required to provide Nixplay with some information about yourself (such as your e-mail address and
other contact information). You agree that the information you provide to Nixplay is accurate and
that you will keep it accurate and up-to-date at all times. When you register, you will be asked to
provide a password. You are solely responsible for maintaining the confidentiality of your account and
password. You agree to accept responsibility for all activities that occur under your account. If you
have reason to believe that your account is no longer secure, then you must immediately notify
Nixplay at support@nixplay.com
Nixplay Paid Services
Nixplay may charge fees for access to certain portions of the Service ("Paid Services") and those fees are listed on our website and
mobile app at the time you opt into a Paid Service. Your Paid Service
may include value added features and/or extended warranty coverage after the
manufacturer's limited warranty expires. Subject to additional limitations, please see the Nixplay Plus Membership section, click here and the Warranty section, click here.
The prices, details and availability of features provided by this Service are subject to change without notice. This website and/or mobile app and its contents are not to be construed as an offer to sell any product or service.
You may not share access to a Paid Service with any other individual. By electing to access a Paid Service, you authorize Nixplay to direct its third-party payment processor to charge the credit card identified by you (which you represent and warrant that you are authorized to use) all applicable fees for that Paid Service in U.S. dollars or any other currency option shown or offered by Nixplay, at the time of payment, including all applicable taxes. If Nixplay does not receive payment from your credit card provider, you agree to pay all amounts due upon demand and Nixplay may suspend your access to the Paid Service until you have paid all outstanding amounts. You agree to reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Nixplay to collect any amounts that are not paid when due.
Renewal and Cancellations
Your Paid Service automatically renews and you will be charged a fee until cancelled by you or us. You may cancel your use of a Paid Service or your account at any time. All sales are final and Nixplay will not refund any amounts paid, except as expressly provided in these Terms. You acknowledge that Nixplay reserves the right to change its fees at any time.
If you purchased the Paid Service through an AppStore, such as Apple or Google Play, you must use the tools made available by those services to sign up, manage, and/or cancel your Paid Service.
Content
Who owns my Content that I put on the Nixplay Service?
You do. You are able to post and
publish Content for display on the Service and your Nixplay photo frame(s). You retain
all copyrights and any other proprietary rights that you may hold in the Content that is posted
on or through the Service. Your edits to the Content (e.g. Captions) also form part of
your Content and we don't claim ownership of the Content you provide on the Service. Your
Content remains your Content, and you are responsible for it.
Who can access my Content?
You have initial control over who
may access your Content. However, if you share Content on a Nixplay digital frame(s) that is
publicly accessible you agree that anyone you have shared the Content with may, for free, use
and reproduce the Content. By posting and sharing Content with another User of the
Service, you hereby grant that User a non-exclusive license to access and use such
Content as permitted by these Terms and the functionality of the Service.
What does Nixplay do with my Content?
When you transmit or upload Content to the Service, you allow Nixplay to provide you with the necessary services
(e.g. store, resize, geotagging etc.) regarding that Content and to improve your User
experience while protecting you and your Content. In order to do that we might also collect
and use the data regarding the overall characteristics (e.g. orientation of the Content,
orientation of the connected Nixplay Frame, device type used, User behavior etc.) of the
Content, such data may be personally identifiable. See further details in Privacy Policy.
Who is responsible for my Content?
You are solely
responsible for your Content and the consequences of posting or publishing
Content. By posting and publishing Content, you affirm, represent, and warrant that:
-You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Nixplay and Users of the Service to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 6.4 and in the manner contemplated by Nixplay and these Terms; and
-Your Content, and the use thereof as contemplated herein, 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; or (ii) slander, defame, or libel any third-party.
Can Nixplay remove my Content?
Yes. Nixplay will remove,
limit distribution of, or disable access to your Content if we determine it is in violation of
these Terms, or we receive a complaint from another User, or we receive a notice
of intellectual property infringement, or other legal instruction for removal. We may also block
delivery of Content to or from the Service as part of our effort to protect the
Service or our customers, or otherwise enforce the Terms. You understand that when
using the Service, you may have visibility of Content from a variety of sources and
acknowledge that Content may be inaccurate, offensive, indecent or objectionable. You agree to
waive, and hereby do waive, any legal or equitable rights or remedies you have or may have
against Nixplay with respect to Content.
Who can add me as a friend and send me the Content?
By accepting or sending a friend
request you allow those specific people to share content with and to receive content from.
However, by enabling the auto-accept you allow anyone with your username to add you as a friend
and send photos to you. You agree to waive, and when you enable the filter do waive, any legal
or equitable rights or remedies you have or may have against Nixplay with respect to such
Content.
Digital Millennium Copyright Act
DMCA Notification.
Nixplay complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. ยง512, as amended). If you have any complaints with respect to material posted on the Service, you may contact Nixplay's Designated Agent at the following address:
Creedon Technologies USA, LLC
12301 Whitewater Drive Suite 115
Minnetonka, MN 55343 United States
E-mail: support@nixplay.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
Repeat Infringers.
will
promptly terminate without notice the accounts of Users that are
determined by Nixplay to be "repeat infringers." A repeat infringer
is a User who has been notified of infringing activity more than
twice and/or has had Content removed from the Service more than
twice.
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, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
post, upload, or distribute any Content or other material that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any Content, or (ii) reverse engineering or otherwise attempting to discover the source code of the software related to the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
interfere with the operation of the Service or any User's enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other Users of the Service, (iii) attempting to collect, personal information about Users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or
used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted herein or any Materials (as defined in Section 13 below) or any right or ability to view, access, or use any Materials; or
attempt to do any of the foregoing in this Section 8, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 8.
Third-Party Services and Linked Websites.
Nixplay may provide tools through the Service that enable you to
import and
export information, including Content, to and from third party services, including through features
that allow you to link your account on Nixplay with an account on a
third-party service, such as Facebook, Instagram, Dropbox or Google Photos. By using these tools,
you agree that Nixplay may transfer and/or import such information and
Content to and/or from the applicable third-party service.
Such third-party services are not under
Nixplay's control and Nixplay is not responsible for their provision of your information
and Content. The Service may also contain links to third-party websites. Such linked websites are
also not under Nixplay's control, and Nixplay is not responsible for their content. Also,
by using the Service, you acknowledge and agree that Nixplay is not responsible for
examining or evaluating the content, accuracy, completeness, validity, copyright compliance, legality,
decency, quality or any other aspect of such third- party content or websites . Nixplay, its
officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any
liability or responsibility to you or any other person for any third-party services. Your use of such
Third-Party services may be subject to a different set of Terms & Conditions and Privacy
Policies which can be found on the website and/or mobile app of the respective Third-Party service.
Termination of Use;
Discontinuation and Modification of the Service.
If you violate any provision of these Terms, your permission to use the Service will terminate automatically.
Additionally, Nixplay may, without notice, terminate your account on the Service or
suspend or terminate your access to the Service at any time when, in Nixplay's sole
discretion, it believes it is necessary to do so for its provision of the Service. Nixplay
also reserves the right to modify or discontinue the Service at any time (including, without
limitation, by limiting or discontinuing certain features of the Service) without notice to you.
Nixplay will have no liability whatsoever on account of any change to the Service or any
suspension or termination of your access to or use of the Service. You may terminate your account at any
time by contacting customer service at support@nixplay.com.
If you terminate your account, you will remain obligated to
pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. If you do not have any Nixplay devices connected to your account, be sure to log in and use the Nixplay Service 6 months of your last update. As part of our regular data management process, we have implemented an automated archiving system for inactive accounts. After 6 months of inactivity, your content will be transferred to a secure cloud vault as part of this archiving process. Please be assured that we are committed to storing your photos and videos for as long as you want and we will not delete your content. Once your content is archived, you will still be able to retrieve your content by logging back into the app and confirming content retrieval. This process is automatic and takes no longer than one day.
Privacy Policy; Additional Terms
Privacy Policy.
Please read the Nixplay Privacy Policy carefully for information relating to Nixplay's collection, use,
storage and disclosure of your personal information. The Nixplay Privacy Policy is hereby
incorporated by reference into, and made a part of, these Terms. Click here
Additional Terms.
Your use of the Service is
subject to any and all additional terms, policies, rules, or guidelines applicable to the
Service or certain features of the Service that Nixplay may post on or link
to on the Service (the "Additional Terms"), such as end-user license agreements
for any downloadable applications that Nixplay may offer, or rules applicable to
particular features or content on the Service, subject to Section 12 below. All such
Additional Terms are hereby incorporated by reference into, and made a part of, these
Terms.
Changes to the Terms.
Nixplay reserves the
right, at its discretion, to change these Terms at any time. We encourage you
to check these Terms periodically for changes. In the event that a change to
these Terms materially modifies your rights or obligations,
Nixplay will make reasonable efforts to notify you of such change. Nixplay
may provide notice through a pop-up or banner within the Service,
by sending an email to any address you may have used to register for an account, or through other
mechanisms. Additionally, if the changed Terms materially modify your rights
or obligations, Nixplay may require you to provide consent by accepting the
changed Terms. If Nixplay requires your acceptance of
the changed Terms, changes are effective only after your acceptance. If you
do not accept the changed Terms, Nixplay may terminate
your access to and use of the Service. All other changes are effective upon
publication of the changed Terms. Disputes arising under these Terms
will be resolved in accordance with the Terms in effect at the
time the dispute arose.
Ownership; Proprietary Rights.
The Service is
owned and operated by Creedon Technologies USA, LLC, apart from the domain www.nixplay.co.uk, which is
owned and operated by Creedon Technologies Limited, UK. The visual interfaces, graphics, design,
compilation, information, data, computer code (including source code or object code), products,
software, services, and all other elements of the Service (the "Materials") provided by
Nixplay are protected by all relevant intellectual property and proprietary rights and applicable
laws. All Materials contained in the Service are the property of Nixplay or its
third-party licensors. Except as expressly authorized by Nixplay, you may not make use of the Materials.
Nixplay reserves all rights to the Materials not granted expressly in these Terms.
Indemnity.
You agree that you will be
responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless
Nixplay and its officers, directors, employees, consultants, affiliates, subsidiaries and agents
(collectively, the "Nixplay Entities") from and against any and all claims, liabilities, damages,
losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way
connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of
these Terms or any representation, warranty, or agreements referenced herein, or any applicable
law or regulation; (iii) your violation of any third-party right, including without limitation any
intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes
or issues between you and any third party. Nixplay reserves the right, at its own expense, to
assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and
without limiting your indemnification obligations with respect to such matter), and in such case, you
agree to cooperate with Nixplay's defense of such claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. NIXPLAY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE NIXPLAY ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NIXPLAY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY
ASSOCIATED WEBSITES, OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF CONTENT OR DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE NIXPLAY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONTENT OR OTHER INTANGIBLE LOSSES) 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, WHETHER OR NOT THE NIXPLAY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE NIXPLAY ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO NIXPLAY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. 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.
Governing Law.
These Terms shall
be governed by the laws of the State of California without regard to conflict of law principles. To the
extent that any lawsuit or court proceeding is permitted hereunder, you and Nixplay agree to
submit to the
personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.
General.
Dispute Resolution and Arbitration
General.
In the interest of resolving
disputes between you and Nixplay in the most expedient and cost-effective manner, you and
Nixplay agree that any and all disputes arising in connection with these Terms
shall be resolved by binding arbitration. Arbitration is more informal 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. The parties' agreement
to arbitrate disputes includes, but is not limited to, 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 the claims arise during
or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND NIXPLAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN
A CLASS ACTION.
Exceptions.
Notwithstanding subsection 19.1,
both parties agree that nothing herein will be deemed to waive, preclude, or otherwise limit
either of the parties' right to (i) bring an individual action in small claims court, (ii)
pursue enforcement actions through applicable federal, state, or local agencies where such
actions are available, (iii)
seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address
intellectual property infringement claims.
Arbitrator.
Any arbitration between you and Nixplay will
be governed
by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for
Consumer Related Disputes (collectively, "AAA Rules") of the American
Arbitration Association ("AAA"), as modified by theseTerms, and will be administered by the AAA.
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 Nixplay
Notice & Process.
A party who intends to seek
arbitration must first send a written notice of the dispute to the other, by certified mail or
Federal Express (signature required), or in the event that Nixplay does not have a
physical address on file for you, by electronic mail ("Notice"). Nixplay's address
for Notice is: Creedon Technologies USA, LLC, 12301 Whitewater Drive Suite 115, Minnetonka, MN
55343, United States. The Notice must (i) describe the nature and basis of the claim or dispute;
and (ii) set forth the specific relief sought ("Demand"). Nixplay agrees to use
good faith efforts to resolve the claim directly, but if Nixplay does not reach an
agreement to do so within thirty (30) days after the Notice is received, you or Nixplay
may commence an arbitration proceeding.
Fees.
The payment of any fees shall be
decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed
upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you
may choose whether the arbitration will be conducted (i) solely on the basis of documents
submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by
an in-person hearing as established by the AAA Rules in the county (or parish) of your billing
address. Regardless of the manner in which the arbitration is conducted, the arbitrator shall
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 fourteen
(14) days of the arbitrator's ruling on the merits.
No Class Actions.
YOU AND NIXPLAY 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 Nixplay 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.
Modifications.
In the event that Nixplay
makes any future change to this arbitration provision (other than a change to Nixplay's
address for Notice), you may reject any such change by sending us written notice within
thirty (30) days of the change to Nixplay's address for Notice, in which case your
account with Nixplay shall be immediately
terminated and this arbitration provision, as in effect immediately prior to the amendments you
reject shall survive.
Enforceability.
If Subsection 19.6 is found to be
unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the
entirety of this Section 19 shall be null and void and, in such case, the parties agree that the
exclusive jurisdiction and venue described in Section 17 shall govern any action arising out of
or related to these Terms.
Feedback.
Nixplay welcomes your comments about our Service. However, if you
send us a
business idea or suggestion (for example, about how to improve or expand Nixplay's
products and Services), you agree that Nixplay will be completely free to implement, use, or modify, in any way, your idea or suggestion
(or any part of it), without any payment or other obligation to you.
Consent to Electronic Communications.
By using the Service or contacting us, you consent to receiving certain electronic communications from us as further
described in the Nixplay Privacy Policy. Please read the Nixplay Privacy
Policy to learn more about your choices regarding Nixplay's electronic communications practices.
Contact Information.
The Service hereunder is offered by
Creedon
Technologies USA, LLC, apart from the domain www.nixplay.co.uk which is owned and operated by Creedon Technologies Limited,
UK. You may contact us by sending correspondence to "12301 Whitewater Drive Suite 115, Minnetonka, MN
55343, United States" or by emailing us at support@nixplay.com. If you are a California resident, you may have these
Terms mailed to you electronically by sending a letter to the foregoing address with your
electronic mail address and a request for these Terms.
Beta Services Participation
This Section describes the additional terms and conditions under which you may access and use certain features, technologies and services made available to you by Nixplay that are not yet generally available, including, but not limited to, any products, services, or features labeled "beta", "preview", "pre-release", "experimental", or a service which prompts a beta message before your use (each, a "Beta Service"). In the event there is a conflict between the terms of this Section 23 and an existing Nixplay Beta Participation Agreement between you and Nixplay, the terms of the existing Nixplay Beta Participation Agreement will take precedence.
During the term of the applicable Beta Service, which you may access and use the Beta Service; You must comply with all policies and guidelines related to any Beta Service posted on the Nixplay website and/or mobile app or otherwise made available to you, including the Privacy Policy and any additional terms and conditions for a specific Beta.
Nixplay may suspend or terminate your access to or use of any Beta Service at any time and for any reason. Nixplay may at any time cease providing any or all of any Beta Service in its sole discretion and without notice. Beta Services also may be unavailable, and/or their performance may be negatively affected by scheduled and unscheduled maintenance.
ADDITIONAL WARRANTY DISCLAIMERS. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE SERVICE TERMS, THE BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, NIXPLAY IS PROVIDING THE BETA SERVICES TO YOU "AS IS." NIXPLAY AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NIXPLAY AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NIXPLAY'S AND ITS AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY FOR ANY BETA SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE BETA SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
Review(s)
"Review(s)" means any opinions, product or service ratings or reviews, articles, written expression, in any form or media, and/or any works of authorship that you may provide regarding Nixplay via the Review tool on the Nixplay website .
All Intellectual Property Rights in and to the reviews will belong to Nixplay and Nixplay retains the right, title and interest in connection therewith.
The Reviews system on the Nixplay website is run through a third-party partner. By submitting or transmitting the Review(s) to the Nixplay website , you grant Nixplay and its third-party partners a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license, with the right to sub-license, to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Reviews and otherwise use and commercially exploit any content provided as Review(s).