9. For an Employer (also defined below) to enjoy the full potential of Our Services (defined below), you must be a subscriber to the services provided by NotMe Solutions Inc. Our Services include sharing with the Employer any Reports (also defined below) which are made by any current or former employees. If your Employer is not a subscriber to NotMe Solutions Inc., we may not be able to assist you in processing any Reports that we receive. At most, all we might be able to do is follow-up with you and/or your current or former employer with your permission and theirs.
A. Legal Agreement
A.1 These Terms are a legal agreement between you and Us and contain important information regarding your legal rights, remedies and obligations. By accessing, browsing or otherwise using the App, you: (i) acknowledge you have read, understand, and agree to be bound by these Terms; (ii) agree to comply with all applicable laws, rules and regulations with respect to your use of the App; and (iii) represent you are an adult and have the legal capacity to enter into contracts in the jurisdiction where you reside.
B. Where Are You?
B.1. In order for the App to be able to maximize its benefits and features, it needs to know where you are located. Therefore, you agree to allow NMS to utilize GPS and other available signals to identify your detailed device and location information. Additionally, in order to keep the App updated and accurate, and to provide you with maximum features, NMS will keep a history of your locations and preferences while using the App. You explicitly agree and consent to all such activity.
C.1. NotMe Solutions Inc. includes its trustees, officers, directors, shareholders, employees, attorneys and agents (current and past) and any parents, affiliates and subsidiaries, individually and collectively, and any related individuals or entities.
C.2. Affiliated Parties means NotMe Solutions Inc.; DBAV Group LLC and any related individuals, parents, affiliates and subsidiaries, and any of their trustees, members, directors, officers, shareholders, employees, representatives, consultants, attorneys, agents, suppliers, distributors, licensees or licensors.
C.3. Content means all the content and materials which appear on the App, including, but not limited to, ideas, suggestions, documents, posts, reports and/or proposals submitted to Us, whether by webpage feedback, email or through any other means, and includes all information, data, text, URLs, software, music, video, photographs, graphics, messages, tags, audio and other forms of media which contain information and/or images.
C.4. Employer includes both the business organization that is the employer or former employer of the person filing the Report and any employee, representative or agent authorized to act on behalf of said business organization .
C.5. Post or Posting means any text, image or other data submitted to Us in conjunction with the viewing and/or use of Our App and Services.
C.6. Personally Identifiable Information or PII includes individually identifiable information about a living individual consumer collected online by Us from that individual who has voluntarily provided it, including any of the following: (1) a first and last name; (2) a physical address, including without limitation a street name and name of a city or town; (3) an e-mail address; (4) a telephone or fax number; (5) name of Employer; (6) date of birth; or (7) any other identifier that permits the physical or online contacting of a specific individual.
C.7. Report or Reports means any information or documentation which is provided to Us in good faith which allows Us to provide Our Services and is intended to be shared with your current or former Employer; and involves an incident where the current or former employee (or a work colleague) concluded s/he or they have been the victim of harassment, abusive behavior, discrimination, bullying and/or other actions by someone at a workplace that caused him/her or the work colleague to feel threatened, intimidated, persecuted or otherwise disturbed.
C.8. Service or Services means any of the App or other products or services provided or offered by Us, including those described in these Terms, whether through a website or application owned, maintained or controlled by Us, through a social network, a mobile application, on a mobile telephone or otherwise.
C.9. User means any individual who uses our Services whether that individual does so on his or her own behalf, as a witness to an event which is or was Reported, or on behalf of his or her Employer.
D.2. By using Our Services, you understand, agree and authorize Us to share information about any Report made to Us with your current or former employee.
E. User Qualifications
E.1. We require an individual to be at least 18 years old to be a User on Our App. This App is not directed toward children under 13 years of age nor do We knowingly collect information about children under 13. If you are under 13 years of age, you are not permitted to submit any PII to Us. If a parent becomes aware any of his/her children has submitted PII to us, please immediately notify us at email@example.com.
E.2. If We find out you are under 13 years of age, We will immediately, upon notice, cancel your Account and delete all of your Content. If you are a minor, you should not be posting any Content. If you do post Content and want Us to remove it from the App, please contact Us at firstname.lastname@example.org. You will need to provide Us with specific information describing the location of the Content that you want Us to remove. We will take reasonable efforts to remove that Content upon receiving a sufficient request, but We cannot ensure complete or comprehensive removal of all that Content.
E.3. If you wish to report an Account created for a minor, please contact us at email@example.com.
E.4. If you had an Account with Us which was previously terminated by Us or you otherwise had your access to Our App terminated, you will not be permitted to become a User without Our express consent, which We may give or withhold in Our absolute discretion.
a. Individual use: You represent that you are authorized by your Employer to act on its behalf regarding Our Services, and that You are of legal age to form a binding contract or are emancipated, and are not a person barred from receiving our Services under the laws of the United States or any other applicable jurisdiction. If you register on behalf of your Employer for any of Our Services, you affirm that all the information you provide during any registration process or Report is true, accurate, current, and complete.
b. Business use: If you register for or use Our Services on behalf of a business, that business accepts these Terms and you represent and warrant that you are authorized to accept these Terms on behalf of the business.
F. Intellectual Property Rights Ownership
F.1. NotMe Solutions Inc. and its affiliates, subsidiaries, distributors, vendors, contractors, licensors and/or licensees are the exclusive owners or licensees of all the content and materials on the App (the “Content”) which is provided in connection with the App, including but not limited to any software, application and website, and of all related intellectual property rights therein, including, but not limited to, all copyrights, moral rights, trademark and patent rights (the “IP”). Our Content includes, but is not limited to, all features, functions, services, software, algorithms, designs, objects, documentation, know-how, code, data, art, graphics, animation, photographs, images, text, music, sound effects, audio and/or audio-visual elements, downloadable materials, look-and-feel, design, layout, organization, presentation, User interface, navigation and stylistic convention of the App.
F.2. All trademarks, trade names, copyrights, logos and service-marks (collectively, the “Marks”) related to Our IP are Our exclusive property. Unauthorized use of any of the Marks or of any word, term, name or symbol that is likely to cause confusion or mistake with respect to the User’s connection or association with NMS, or Our approval or sponsorship of the User’s products or services, or that is likely to dilute any of Our Marks is strictly prohibited by law. All third party trade names, trademarks, logos, copyrights and service marks, if any, that appear in or on the App are the property of their respective owners.
F.3. You do not acquire any ownership interest in any IP or the Marks by accessing, browsing or otherwise using the App. You may not use, reproduce, copy, modify, distribute, transmit, display, perform, publish or otherwise exploit, through any means or media, any of Our IP or Marks or any of the App’s Content or Services.
F.4. We may prevent unauthorized use of the App via technological means designed to protect Our products and Services. You agree not to circumvent or attempt to circumvent these means. You agree that any attempted or actual circumvention or otherwise unauthorized use by you or anyone on your behalf will result, at minimum, in the termination of all your rights under these Terms and to Our products and Services.
F.5.A. On condition of your acceptance of these Terms, We grant you a non-exclusive, limited, non-transferrable, non-sub-licensable, freely revocable license to use the App for your personal or commercial use only as provided elsewhere herein. NMS reserves all rights not expressly granted herein. We also reserve the right to terminate at any time your license to use the App for any reason and, at our discretion, to charge for commercial usage.
F.5.B. You retain ownership of the intellectual property contained in your Content. However, you grant Us and Users of the App a royalty-free, irrevocable, transferrable, sublicensable and non-exclusive perpetual license throughout the universe for use in any and all media whether now known or hereafter devised to use and exploit any Report made to Us (including a license to use, copy, distribute and prepare derivative works of the Content without limitation by reproduction, distribution, adaptation, communication to third parties (and including for commercial purposes)) any and all Content that you post to or through the App. You also waive to the fullest extent permitted by law any and all claims against Us related to moral rights in the Content. In no circumstances will We be liable to you for any exploitation of any Content that you post. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish and exploit Content that you post. You further understand, agree and authorize Us to share any Reports with your current or former employee and with any appropriate third parties, such as law enforcement or mental health professionals. You also grant NMS the right to any commercial use of that Content, at Our sole and absolute discretion. However, neither We nor any third party Users may use your Content for purposes other than to process any Report made to Us.
G. Our Access Rules
G.1. In conjunction with Our Services, as an Employer, you are expected to establish your own corporate communications channel (each an “Employer Channel”) for use by your employees. The Employer Channel is provided as a means to provide current and former employees of your company the ability to safely (and if you so decide, anonymously) make Reports via Our Service to your management and for you to be able to respond to the Reports. Such reporting may include good faith allegations about harassment, abusive behavior, discrimination, bullying and/or other actions by someone that cases and/or caused a current or former employee to feel threatened, intimidated, persecuted or otherwise disturbed.
G.2. Our Service is free for employees to use. Employers are expected to designate which of their employees, agents and representatives are authorized to review and respond to all Reports. Each Employer must also decide how it will track the process and progress of any Report, how each will be processed, what action, if any, will be taken and the conclusion, all of which are within the absolute discretion of the Employer.
G.3. You warrant and agree that, while accessing or using the App, You will not use the App to:
– Violate any law (including without limitation laws related to torts, contracts, export controls, patents, trademarks, trade secrets, copyrights, defamation, obscenity, rights of publicity, or other rights) or encourage or provide instructions to another to do so;
– Post any Content containing unsolicited or unauthorized advertising, promotional materials, spam, junk mail, chain letters, pyramid schemes, or any other form of unauthorized solicitation;
– Post any Content containing sweepstakes, contests or lotteries, or otherwise related to gambling;
– Post any Content containing copyrighted materials, or materials protected by other intellectual property laws, that you do not own;
– Post any Content for which you have not obtained all necessary written permissions and releases;
– Misrepresent any fact (including without limitation your identity or age, or any assertions made in conjunction with any Report registered with Us);
– Post any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including by engaging in any denial of service attack or similar conduct;
– Exceed your authorized access to any portion of the App;
– Collect or store personal data about anyone, except as appropriate to process any Reports;
– Modify without written permission from NMS any part of the App;
– Obtain or attempt to access or otherwise obtain any Content or information through any means not intentionally made available or provided for through the App;
– Exploit errors in design, features and/or bugs which are not documented in order to gain access that would otherwise not be available;
– Use any robot, spider, scraper, or other automated means to access the App for any purpose;
– Knowingly and/or maliciously make false claims or assertions, and/or Reports;
– Take any action that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure; or
– Interfere or attempt to interfere with the proper working of or activities conducted on the App, or bypass any measures We may use to prevent or restrict access to the App.
G.4. As an Employer, you agree to use the App solely for purposes of resolving Reports put forth by current or former employees. Users agree to use the App solely for purposes of putting forth good faith Reports. When you access or use the App, including when you submit Content to be disseminated on or in the App, you further warrant and represent that you will not engage in any of the following activities, some of which may also expose you to civil and/or criminal liability (and if you are an employee acting on behalf of an Employer, any one of them may also lead to termination of your employment):
– unless specifically authorized by Us, submit Content of a commercial nature (including advertising), including but not limited to (i) offering to third parties a service of your own or your Employer that uses the App; (ii) reselling, or offering to rent or lease the App; (iii) offering the App to the public via communication or integrate it within a service of your own or of your Employer, without Our prior written consent;
– hack, attack, copy or alter any Content on the App or obtain, or attempt to gain, unauthorized access to Our App and/or other computer systems, materials, information or any Content or Services available on or through the App through any means, including through means not intentionally made publicly available or provided through the App;
– engage in any automatic or unauthorized means of accessing, logging-in or registering in connection with the App, or obtaining lists of Users or other information from or through the App, including any information residing on any server or database connected to the App;
– use the App or any of its features, Content and/or Services in any manner that could interrupt, damage, disable, overburden and/or impair the App or interfere with any other User’s use and enjoyment of the App, including, but not limited to, sending chain letters, pyramid schemes, mass unsolicited messages or “flooding” servers;
– engage in flooding, harvesting of email addresses or other personal information, spidering, “screen scraping,” “database scraping,” or any other activity whose purpose is to obtain lists of Users, their personally identifiable information and/or any other information We maintain about Users of the App;
– remove, obscure or change any copyright, trademark, hyperlink or other proprietary rights notices contained in or on the App or any of its Content or any code embedded in or on Our App or on a third party website or application, and/or Our software or any software on any third party website or application;
– submit any Content to the App or on any third party website or application that falsely expresses or implies that Content is sponsored or endorsed by NMS;
– use the App or any of Our Services in violation of NMS’ intellectual property (including but not limited to patent, copyright and trademark) or other proprietary or legal rights or those of any third party;
– use the App to violate the security of any computer network or transfer or store illegal material;
– use false information or impersonate any person or entity or misrepresent your affiliation with any other person or entity, whether actual or fictitious, including any User or any person or entity otherwise affiliated with NMS;
– post, upload, transmit, publish, reproduce or otherwise disseminate through any Content that We determine in Our sole discretion: (i) is unlawful, harmful, harassing, offensive, fraudulent, threatening, abusive, libelous, defamatory, invasive of privacy, vulgar, obscene, hateful, or otherwise infringes NMS’ or any third party’s intellectual property or other rights; (ii) is derogatory or harmful to NMS’ reputation or that of any affiliated individuals or entities; (iii) is harmful to children in any manner; (iv) seeks to or discriminates against any individual based on race, gender, gender identity, ethnicity, religion, occupation, political view, socioeconomic class, national origin, sexual preference, physical or mental handicap or on any other basis; (v) poses a risk to a person’s safety, security or health; (vi) personally identifies any other person without obtaining such person’s express written consent to the disclosure of his or her personal information, including as a witness to any incident in any Report; and/or (vii) encourages criminal behavior or conduct that would constitute a criminal offense under any law, or could give rise to civil liability or other lawsuit;
– use an inappropriate User name or screen name;
– use tools which anonymize your Internet Protocol address to access Our App;
– attempt (or encourage or support anyone else’s attempt) to circumvent, reverse-engineer, decrypt, or otherwise alter, or interfere with the App or any of its Content and/or Services; or modify, adapt, disassemble, decompile, translate, reverse engineer or otherwise attempt to discover the source code or structure, sequence and/or organization of the App or any portion of the App, except where required by applicable local law(s), and then only to the extent required by such local law(s);
– submit false or misleading information to NMS;
– violate the intellectual property, contractual, personal or other rights of any individual or entity, or promote or constitute illegal activity;
– seek to use or actually use the personally identifiable information of any User, any third party or any individual associated with NMS in any manner not approved in writing in advance by that individual, including as a witness to any incident in a Report;
– mislead, defraud or trick NMS or any Users, especially if you are seeking to learn sensitive information about Users or their accounts, including User names, passwords and/or personally identifiable information;
– transmit, disseminate or use any spam, malware, viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms, or other objectionable materials, or any other malicious or invasive code, or program or upload or transmit (or attempt to do so on your own or by any third party on your behalf) any material that acts as a passive or active information collection or transmission mechanism, including but not limited to, clear graphics interchange formats, pixels, web bugs, cookies or similar devices;
– other than as the result of standard search engine or Internet browser usage, use or launch, develop or distribute any automated system, including, but not limited to, any spider, robot, bot, cheat utility, scraper or off-line reader that accesses Our App, or use or launch any unauthorized script or other software;
– knowingly or maliciously making false claims about anyone or reporting instances or behavior that never took place (the making of a false report can lead to discipline, including termination of your employment, and other serious consequences);
– obscure or cover any notice, banner, advertisement or other branding in or on the App; and/or
– circumvent, interfere with or seek to interrupt or disturb any security feature of the App and/or any feature that restricts or enforces limitations on the use of or access to and/or bugs the App.
G.5. The foregoing examples of unlawful Content are made solely for illustrative purposes and do not constitute an exhaustive list of restricted Content or prohibited activities.
G.6. You agree that all Content, whether publicly posted or privately transmitted through our Services, are the sole responsibility of the person who posted such Content. This means that you are solely and entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available via Our Services. We do not control the Content posted via Our Services and do not guarantee the accuracy, veracity, truthfulness, integrity, or quality of such Content. We are not liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred because of the use of any Content posted, emailed, transmitted, or otherwise made available through Our Services. You agree to comply with all applicable laws and regulations when using Our Services. Any unauthorized reproduction, publication, further distribution, or public exhibition of the materials provided on Our Services, in whole or in part, is strictly prohibited. Some of the Content that Users post may be offensive, indecent, or objectionable. We are not liable for that Content. We only collect and process information in accord with Our Services.
G.9. You acknowledge that we may establish general practices and limits concerning use of Our Services, including without limitation the maximum number of days that We will retain uploaded Content, the maximum amount of Content that may be sent from or received by an Employer’s Account on Our Services, the maximum size of any Content that may be sent from or received by a User through Our Services, the maximum disk space that will be allotted on Our servers to host Content associated with an Employer’s Account, and the maximum number of times (and the maximum duration for which) any User may access Our Services in a given period of time. You agree that We have no responsibility or liability for the deletion or failure to store any Content maintained or transmitted using Our Services. You further acknowledge that We may modify our general practices and limits from time to time. You also consent to us storing your Content on our servers.
G.9. NMS, in its sole discretion, may decide the duration of the publication of any Content, its location, when and how it appears in or on the App, its design and any other matter pertaining to the publication of Content in or on the App. Content submitted by Users as part of any Report or response do not reflect the views of NMS. The fact that NMS permits any Content to be published does not warrant the validity, reliability, veracity, truthfulness, accuracy, timeliness, or legality of that Content.
G.10. We will share the Report and any responses provided to Us with your current or former Employer and so We have no obligation of anonymity or confidentiality, express or implied, with respect to Content that is posted on or through the App, and We shall be entitled to use, exploit, or disclose (or choose not to use, exploit, or disclose) such Content at Our sole and absolute discretion without any obligation whatsoever to any User (i.e., you will not be entitled to any compensation or reimbursement of any kind from Us under any circumstances whatsoever).
H. Account Services
H.2. We reserve the right to terminate any Account and/or to refuse Service to any User, without prior notice, at any time and for any or no reason. Without limiting the above, if We, in Our absolute discretion, find that the User has violated these Terms more than once, We will, in appropriate circumstances, permanently terminate that User’s Account. Users have the right to cancel their Account at any time by directing a written request to firstname.lastname@example.org or to Account Manager, NotMe Solutions, Inc., 27421 Tourney Road, Suite 250, Valencia, CA 91355.
I. Submission of Any Report(s) and Update(s)
I.1. The NMS App is a tool to help current and former employees file Report(s) and for Employers to promptly investigate and provide updates. There are sections of the App which provide screens which allow Users to input data related to such a Report or update. In providing information in these screens or other Content through the App (including, without limitation, information in any form and in any media, including, but not limited to, sound recordings, musical compositions, video programming, webisodes, machinima or theatrical motion pictures) (collectively “Submissions”), you hereby grant Us and our respective designees a worldwide, non-exclusive, sublicensable, transferrable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, adapt and import your Submissions in any and all media and means of communication, now known or hereafter developed. You also agree We are not and cannot be responsible for maintaining any User created Content that you provide to Us and may delete or destroy any such Content at any time. IF YOU DO NOT WISH TO CONFER THE RIGHTS GRANTED IN THIS PARAGRAPH, PLEASE DO NOT SHARE, SUBMIT OR POST ANY REPORT ON OR THROUGH THE APP.
J. Third-Party Websites/Applications
J.2. We do not warrant that a third party cannot decrypt your information should a third party come into possession of or have access to the device(s) you use to access Our Services. We recommend that Users implement all the security features on each of their devices, including any password or locking functions, to protect those device(s) and the confidentiality of your information. To the extent that You connect to Our Services by way of third party wireless networks, We cannot guarantee that those communications will not be intercepted by others. You agree that We will not be liable for any damages for any loss or disclosure of personal information or other damages occurring in communication over networks and/or platforms outside Our control. From time to time, We may issue updates to Our Services. Depending on the update, you may not be able to use Our Services until you have downloaded the latest updates and accepted any new Terms.
J.3. We reserve the right, at Our sole discretion, to terminate, suspend, cancel or alter access to third-party platforms at any time. You expressly release Us from any and all liability arising from your use of any third-party platforms and their services or contents. Your dealings with providers found on those third-party platforms, including payment for or delivery of goods and/or services, and any other terms, including, but not limited to warranties, are solely between you and those providers. You specifically agree that We are not responsible for any loss or damage of any sort resulting or arising from your dealings with those third party platforms and/or their providers.
K. Disclaimers/No Warranties
K.1. We administer, control and operate the App from Our offices in the County of Los Angeles and City of Valencia, California, United States of America. The App is accessible world-wide. However, some of its features or functions may not be available or appropriate for use outside of the United States and/or may not be available to all persons or in all geographic locations. We make no representation that the App or Our Content and/or Services are appropriate or authorized for use in all countries, states, provinces, counties, localities or any other jurisdictions. Your access and use of the App may not be legal in your jurisdiction. If you choose to access, browse or use the App, you do so on your own initiative and at your own risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. We reserve the right to limit, in Our sole discretion, the provision of any feature or function of the App to any person and/or geographic area. Any offer for any feature or function made on the App is void where prohibited.
K.2. NotMe Solutions Inc. and its Affiliates are not providing legal services and are not licensed to provide legal services. Rather, our App is intended to facilitate the ability of current and former employees to file a Report with their Employer and for the Employer to provide updates and promptly investigate the Reports through Our Services, and for no other purpose. The App provides information of a general nature only. You are responsible for determining whether it applies to your specific situation. We specifically disclaim any liability concerning any action that any individual may take based on any information or guidance provided in the App.
K.3. AS A USER, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE APP IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE APP.
L. Events Out of Our Control
M. Procedure for Making Complaints
M.1. If you believe that your rights, or the rights of a third party, are being violated in any way by any Content accessible on or through the App, please contact Us at email@example.com.
N. Limitation of Liability
N.1. EXCEPT AS SET OUT BELOW, UNDER NO CIRCUMSTANCES, INCLUDING ANY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ARISING UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NMS AND/OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE APP (INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON INFORMATION AVAILABLE ON OR IN THE APP OR OTHERWISE RELIED ON OR USED BY NMS IN DELIVERING THE APP, AND/OR ANY INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, AND/OR ANY OTHER FAILURE OF PERFORMANCE), OR FOR ANY CONTENT, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY AGREEING TO AND ACCEPTING THESE TERMS, YOU HEREBY IRREVOCABLY RELEASE NMS AND ITS AFFILIATE D PARTIES FROM LIABILITY OF ANY KIND, AND FOR ANY CONSEQUENCE(S) ARISING FROM THE USE OF THE APP. THIS INVOLVES ANY AND ALL LOSSES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF GOODWILL, INTERRUPTION, LOSS OF BUSINESS INFORMATION, DAMAGE TO REPUTATION, FEES, ACTUAL ATTORNEYS’ FEES AND COSTS, EXPENSES OR ANY DAMAGE, WHETHER DIRECT OR INDIRECT, WHETHER FINANCIAL OR NON-FINANCIAL.
N.2. in association with any claim, or any loss, damage, action, suit or other proceeding relating to or arising under or out of these Terms, whether the CLAIM is founded upon contract, infringement of intellectual property rights, tort, negligence or other grounds. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
N.3. IN NO EVENT SHALL NMS OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY NMS ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE APP (INCLUDING ANY USER GENERATED CONTENT). IN NO EVENT SHALL THE TOTAL LIABILITY OF NMS AND ITS AFFILIATED PARTIES TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE, (i) THE AMOUNT, IF ANY, PAID BY YOU TO NMS FOR YOUR USE OF THEAPP OR FOR ANY OF YOUR ACTIVITIES IN CONNECTION WITH THE APP DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING YOUR CLAIM, OR (ii) THE SUM OF TWO HUNDRED AND FIFTY U.S. DOLLARS ($250.00 USD), WHICHEVER IS LESS.
O.1. YOU USE THE APP AT YOUR SOLE/OWN RISK. THE APP, INCLUDING ALL CONTENT, SOFTWARE, WEBSITE, APPLICATION, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH RESPECT TO ANY UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF ANY CONTENT, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FEATURES, QUALITY, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. WE DO NOT WARRANT THE APP AND/OR ANY SERVICES AND/OR CONTENT WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR DEFECTS. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE, FOR ANY DAMAGES TO OR VIRUS(ES) OR OTHER MALWARE THAT MAY INFECT YOUR COMPUTER EQUIPMENT, TABLET, CELLULAR/MOBILE PHONE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING, OR USE OF THE APP. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT SAFEGUARD PROCEDURES AND VIRUS AND MALWARE CHECKS (INCLUDING ANTI-VIRUS, REGULAR SYSTEM UPGRADES AND OTHER SECURITY CHECKS AND MEASURES) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
O.2. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
O.3. The information provided by the App is not intended to replace the information presented in the physical world. In the event that information in the physical world differs from the App, you must not rely on the App. Moreover, NMS does not warrant the App will operate in an uninterrupted or error-free manner, or that it is safe, secured from unauthorized access to NMS’ computers, immune from damages, and free of malfunctions, bugs or failures (including, but not limited to, hardware or software failures).
P.1. A change to the App may occur at any time and, if it does, We will post the updated Terms. If such a posting occurs, the revised Terms will become effective upon the earlier of (i) posting of the revisions to the App, or (ii) distribution of the revisions by electronic mail. For this reason, please visit this page on a regular basis and check the “Last Updated” date at the top of these Terms to ensure you are familiar with the most recent version of these Terms. Your continued use of the App after the effective date of the revisions signifies your acceptance of any such revisions.
Q. Statute of Limitations
R.2. Upon termination of your access to or ability to use Our App, including but not limited to suspension of your Account, your right to use or access any Service and/or any Content will immediately cease. All provisions of these Terms that by their nature should survive termination, shall survive termination, including, but not limited to, ownership provisions, warranty disclaimers, and limitations of liability. See also the provisions in Paragraph S.1 below. Termination of your access to and use of Our App shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to Us or any third party.
R.3. On termination of your Account and/or upon your deletion of any particular Service or Content, you acknowledge and agree that: (a) caching of, copies of, or references to the Content may not be immediately removed; and (b) such removed Content may persist in backups (not available to others) for reasonable periods of time. You agree to release and indemnify Us from all claims related to the retention of deleted Content.
R.4. You agree that We may, without prior notice, immediately terminate, limit your access to, or suspend your Account based on any of the following: (a) breach or violation of these Terms; (b) upon request by law enforcement; (c) unforeseeable technical or security issues or problems; (d) extended periods of inactivity; or (e) fraudulent, deceptive, or illegal activity, or other activity which We believe is harmful to Our App and/or business interests. You agree that termination, limitation of access and/or suspension shall be made in Our sole discretion and that We shall not be liable to you or any third party for the termination, limitation of access, and/or suspension of your Account.
R.5. You may terminate your Account with Us and under these Terms at any time by emailing Us at firstname.lastname@example.org. We may terminate these Terms for any or no reason at any time by notifying you through a notice on the App, by email, or by any other method of communication. Any such termination will be without prejudice to Our rights, remedies, claims, or defenses hereunder.
R.6. Upon termination of your Account, you will no longer have a right to access your Account and/or its Content. We will not have any obligation to assist you in migrating the data or the Content and We may not keep any backup of any of the Content. We will not be responsible for deleting the Content.
S.1. The following sections shall survive any termination: “Intellectual Property Rights Ownership,” “Indemnity,” “Warranty,” “Limitations of Liability,” “Jurisdictional Restrictions,” “Released Parties,” and “Binding Arbitration Agreement and Class Action / Private Attorney General Waiver Disclosure”.
T.. Export Control
T.1. You represent and warrant that you: (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) are not listed on any U.S. Government list of prohibited or restricted parties, and (iii) will not use Our Services to transfer software, technology or other technical data to parties identified on any such lists.
U.2. You hereby agree that We shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.
V. Released Parties
V.1. To the fullest extent permitted by law, you release Us, Our Affiliated Parties and Our related individuals, affiliates and subsidiaries, and any of their trustees, members, directors, officers, shareholders, employees, representatives, consultants, attorneys, agents, suppliers, distributors, licensees and/or licensors from any and all responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following: (i) disputes between Users, including those between you and other Users; (ii) third party platforms and services, including Content found on such platforms and in such services; (iii) disputes concerning any use of or action taken using your Account by you or any third party; (iv) claims relating to unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content; (v) the sharing of any Report and/or update(s) (including all related information and documentation) with your current or former employee or related third parties, such as law enforcement or mental health professionals.
V.2. If you have a dispute with your current or former employee, one or more Users of the App, with any party who provides third party Services on or through the App, with any individual or entity who provides a website, application or other service linked to the App or from third-party Content which is posted in or on the App, you release Us and our Affiliated Parties from all claims, demands, and damages (e.g., direct, incidental, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you have a dispute with your current or former employee or any third party in any way pertaining to our App, Services and/or Content, you release NMS and Our Affiliated Parties from any and all claims, demands, and damages (e.g., direct, incidental, indirect, punitive, statutory, exemplary, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You also waive California Civil Code § 1542 which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
V.3. You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal, national, state or local statute or principle of common law of any state in the United States, or any political entity or nation, provincial or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542. You agree not to file any action or lawsuit inconsistent with the foregoing release.
X. Governing Law and Jurisdiction
Y. Limitation of Liability
Y.1. To the extent allowed by law, WE shall not be responsible or liable to you for any loss or damage of any sort incurred as the result of the following:
– delaying, rejecting, or removing any or all Content at any time for any or no reason whatsoever with or without notice to you;
– SHARING ANY REPORTS and/or updates AND/OR RELATED DOCUMENTATION WITH ANY CURRENT OR FORMER EMPLOYEe or EMPLOYER AND ANY THIRD PARTIES, SUCH AS LAW ENFORCEMENT OR MENTAL HEALTH PROFESSIONALS;
– modifying or discontinuing temporarily or permanently, the APP (or any part thereof) with or without notice to you for any or no reason whatsoever;
– immediately terminating your access to the APP for any or no reason whatsoever and with or without notice to you;
– the accuracy, usefulness, or availability of any information Posted to or through the APP; AND/or
– any loss or damage of any sort incurred by you as a result of interactions you have with third-partIes found on or through the APP.
Y.2. In no event shall WE be liable to you for any incidental, direct, indirect, punitive, statutory, exemplary, special, or consequential damages whatsoever (including damages for loss of profit, loss of goodwill, interruption, loss of business information or any other financial loss) in association with any claim, or any loss, damage, action, suit or other proceeding relating to or arising under or out of these Terms, even if we have been notified of the possibility of such damages, whether the action is founded upon contract, infringement of intellectual property rights, tort, negligence or other grounds. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
Y.3. Some jurisdictions may not permit certain liability limitations OR WAIVERS. If any court determines the law of such a jurisdiction APPlies, our liability shall be limited to the greatest extent permitted by law.
Z. NOTICE FOR CALIFORNIA USERS
Z.1. Under California Civil Code Section 1789.3, users of the App from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
AA. NOTICE FOR NEW JERSEY USERS
AA.1. The following sections shall not apply to Users of the App from New Jersey: Warranty, Limitations on Liability and Jurisdictional Restrictions.
BB.1. Certain state laws permit our Users, e.g., those who are Illinois or California residents, to request certain information regarding disclosure by Us of personally identifiable information to third parties. If you qualify, you may make your request to email@example.com.
CC. BINDING ARBITRATION AGREEMENT AND CLASS ACTION / PRIVATE ATTORNEY GENERAL WAIVER DISCLOSURE
a. Pre-Filing Mediation. In the event of a dispute, prior to initiating arbitration, the party asserting the claim must first send to the other, by certified mail or overnight courier, a written Notice of Claim (“Notice”). If you are the claimant, the Notice to Us must be addressed to: Compliance Officer, NotMe Solutions Inc., 27421 Tourney Road, Suite 250, Valencia, CA 91355 or by emailing firstname.lastname@example.org. If We are the claimant, the Notice must be sent to the last known address We have on file for you in your Account. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. Following receipt of the Notice, each party agrees to negotiate with the other in good faith about the claim. If the claim is not resolved to the satisfaction of the claimant within sixty (60) days after Notice is provided, the claimant may pursue the claim in arbitration or file a claim in small claims court, if the claim is eligible for small claims disposition.
b. Additional Arbitration Provisions:
1. Settlement Offers: During the arbitration, the amount of any settlement offer made by you or Us shall not be disclosed to the arbitrator.
2. Initiating A Claim: The form required to initiate an arbitration can be printed or downloaded from www.adr.org. Alternatively, you may contact the arbitration administrator by calling 1-800-778-7879 or writing to the American Arbitration Association, 725 S. Figueroa St., Suite 400, Los Angeles, CA 90017.
3. Fees for Initiating Arbitration: Whether the fees incurred by the party filing for arbitration are to be reimbursed, divided between the parties or otherwise allotted shall be decided by the arbitrator/arbitration panel as part of the proceedings.
4. Applicable Rules; Administrator: The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (or any successor rules or protocols enacted by AAA) (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the American Arbitration Association, 725 S. Figueroa St., Suite 400, Los Angeles, CA 90017. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement.
5. Location of Hearing: Unless you and We agree otherwise, any arbitration hearings will take place in Los Angeles, California in accord with the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based.
6. Class Action / Private Attorney General Waiver: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and We agree otherwise, the arbitrator may not consolidate the claims of more than one party, and may not otherwise preside over any form of a class, representative or private attorney general proceeding. If this specific provision is found to be unenforceable as applied to any claim asserted by you, then the entirety of the arbitration provision set forth in this Section CC shall be null and void.
7. Injunctive Relief Limitation: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim.
DD. Opt-Out Provision
DD.1. You may elect to opt out (exclude yourself) from the final, binding arbitration procedure, the class action waiver and/or the private attorney general waiver specified in these Terms by doing the following. Within 15 days of your first accessing the App, you must send a letter to Us at: Account Manager, NotMe Solutions Inc., 27421 Tourney Road, Suite 250, Valencia, CA 91355 that specifies (1) your name, (2) your IP address(es), (3) your mailing address, and (4) your request to be excluded from the final, binding arbitration procedure and class action/private attorney general waiver specified in these Terms. All other Terms shall continue to apply to you and your Account, including the requirement to participate in pre-dispute mediation. You are not required to send the letter by certified mail, return receipt requested or overnight courier, but it is recommended that you do so. Your request to be excluded will only be effective and enforceable if you can prove the request was postmarked within the applicable 15-day deadline.
EE. Arbitration Clauses Invalid/Inapplicable:
EE.1. If any court of competent jurisdiction finds the binding arbitration and/or class action/private attorney general waiver provisions in these Terms to be invalid or applicable, you agree to the exclusive jurisdiction of the federal and state courts located in the County of Los Angeles, City of Valencia, California, and the related appellate courts, in any related action or proceeding. Further, you irrevocably submit to the venue in the state and federal courts in the County of Los Angeles, City of Valencia, California, and the related appellate courts, in any related action or proceeding and agree you shall not raise any claims as to the County of Los Angeles, City of Valencia, California being an inconvenient forum. You also agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable claim or action.
FF. Assignment of Rights
FF.1. You may not assign or transfer your rights in and to the App, without the prior written consent of NMS. NMS may assign its rights in and to the App to a third party at its sole and absolute discretion. Likewise, these Terms and the rights, benefits and obligations contained herein are fully assignable by NMS and will be binding upon and inure to the benefit of NMS’ successors and assigns.
GG.1. Our failure to exercise or enforce any rights or provisions of these Terms shall not be deemed nor constitute a waiver or relinquishment of such rights or provisions. Any waiver of any right or provision of these Terms must be in writing.
HH.1. If any part of these Terms is determined to be invalid or unenforceable under applicable law, including the warranty disclaimers and liability limitations stated elsewhere herein, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision(s), and the remainder of these Terms shall continue in full effect.
II. Entire Agreement
II.2. These Terms constitute the entire agreement between you and NMS and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and NMS, with respect to all matters relating to your access to, and/or use of, the App, Our Services and Our Content.
JJ. Electronic Recordkeeping
KK.1. No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of this agreement for purposes of interpreting any provision hereof in any judicial or other proceeding that may arise between the parties.
KK.2. Except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to this agreement. For the purpose of clarity, Our Affiliated Parties, and other representatives, affiliates and subsidiaries, and any of their trustees, directors, officers, shareholders, employees, representatives, consultants, attorneys, agents, suppliers, distributors, licensees or licensors are intended to be and are considered third party beneficiaries of this agreement.
KK.3. Headers: The headings in these Terms are for convenience only and have no legal or contractual effect.
KK.4. Terms: “Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.
LL. Independent Contractor.
MM. Contact Us
MM.1. You may contact Us concerning any question about the App at email@example.com or any of our Services or Content at Account Manager, NotMe Solutions Inc., 27421 Tourney Road, Suite 250, Valencia, CA 91355. We will take commercially reasonable efforts to address your inquiry promptly.
©2018 by NotMe Solutions Inc.