These terms of service (“Terms”) are entered into by and between you and Commerce Media Holdings LLC, doing business as NTWRK, a Delaware limited liability company (“NTWRK”). Please note that, notwithstanding anything to the contrary herein, or in any linked, incorporated or otherwise referenced document, policy, terms or conditions, sections 10 “Disclaimer and Limitation of Liability as to the NTWRK Content”, 11 “Disclaimer and Limitation of Liability as to Products and Services”, and 13 “Indemnification” herein shall not apply to you if you are a resident of New Jersey. In consideration for your use and access to NTWRK’s mobile services and NTWRK’s software applications downloaded to your cellular device (“NTWRK Services”), and the promises and obligations herein, and intending to be legally bound, you and NTWRK hereby agree as follows:
Your access to and use of the NTWRK Services is subject to these Terms, which incorporate NTWRK’s separately posted Privacy Statement and other policies and modifications issued by NTWRK from time to time. Please read these Terms with care before you make use of the NTWRK Services. By using the NTWRK Services, you agree to and will be deemed to be bound by these Terms and all other applicable policies. If you do not want to be bound to these Terms for any reason, please do not use or access the NTWRK Services in any manner.
Arbitration Notice: Except for certain types of disputes described in section 16 below, you agree that disputes between you and NTWRK will be resolved by binding, individual arbitration. That means that there will be less discovery and less appellate review than in court and that an arbitrator, not a judge or jury, will decide any dispute. By using or accessing the NTWRK Services, you waive your right to bring an action in court before a judge or jury. You also waive your right to bring proceedings, or participate in, a class, consolidated, or representative, action or arbitration; and you hereby waive your right to a jury trial.
Among other things, the NTWRK Services provide information regarding various products and services and the opportunity to obtain additional information concerning those products and services or to purchase them. These Terms and the information provided by NTWRK or on NTWRK’s behalf in no way override the terms and conditions of any product or service except as expressly provided herein. To the extent any area within, or feature offered by, the NTWRK Services contains specific terms and conditions concerning its use (“Specific Terms”), those Specific Terms are in addition to these Terms, and do not in any way modify these Terms unless expressly stated therein. To the extent there is a direct conflict between these Terms and any Specific Terms, the Specific Terms shall govern.
- Changes in Terms
NTWRK shall have the right at any time in its sole discretion to revise these Terms or to impose new terms and conditions with respect to the access or use of the NTWRK Services. Such revisions and additions shall be effective immediately upon notice thereof or as otherwise described in the notice, which may be given by any means, including without limitation, posting the revised or additional Terms on the NTWRK Services. You are responsible for reviewing these Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder. Any access or use of the NTWRK Services by you after notice of revisions or additions to these Terms shall constitute and be deemed to be your agreement to such revisions or additions. No modification to these Terms by any party other than NTWRK shall be valid or enforceable against NTWRK unless expressly agreed to in a writing signed by a duly authorized officer of NTWRK.
These Terms are effective until terminated by NTWRK. NTWRK may terminate these Terms without notice and at any time. In the event of termination, you are no longer authorized to access the NTWRK Services. Notwithstanding any termination of these Terms, all ownership provisions, disclaimers, indemnities and limitations of liability set forth in these Terms shall survive termination.
NTWRK shall have the right without notice and at any time to terminate all or any portion of the NTWRK Services, or any products or services offered through them, or to terminate any individual’s right to access or use all or any portion of the NTWRK Services.
- Compliance with Laws
You agree to comply with all laws, statutes, ordinances and regulations regarding your use of the NTWRK Services and your purchase of products or services through them. You must be at least 13 years old to use the NTWRK Services. Notwithstanding the foregoing, NTWRK has the right to raise the minimum age for its users at any time, whether permanently or temporarily, and may require you to submit information, including without limitation, your date of birth, to confirm your age. You will be informed of any such change when you attempt to login to the NTWRK Services. By using the NTWRK Services, you hereby confirm that you are at least the minimum age as required by NTWRK, but in no event less than 13 years old.
- Acceptable Use/Prohibited Conduct
As a condition of use, you promise not to use the NTWRK Services for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the NTWRK Service. You expressly agree that any action that you take on or through the NTWRK Service will not be: (1) defamatory, libelous, abusive or obscene, and without limitation, shall not include material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate and applicable local, state, federal or international law; (2) infringe on the copyright or any other proprietary right of any person or entity; (3) invade the privacy of any person; (4) contain a virus, worm, Trojan Horse, time bomb, or any other harmful program or component; or (5) otherwise be inappropriate or unlawful.
You also agree that you will not use the NTWRK Service to: (1) spam others or create mass emails; (2) continue inappropriate behavior if you have been warned of such; (3) use or launch any automated system or automated means, including without limitation, “robots”, “spiders” or “offline readers”; and/or (4) create a false identity. You agree not to copy, scrape, re-post, take screen shots of, save, share distribute, modify, reverse engineer, or make derivative works of any content or materials provided through the NTWRK Service, except as expressly provided through the NTWRK’s Service’s functionality and in the Terms.
You agree not to collect or harvest any personally identifiable information, including account names, from the NTWRK Service.
- NTWRK/Third Party Content
The text, images, photographs, videos and other audiovisual works, graphics, logos, illustrations, descriptions, data, and other material provided by NTWRK on or through the NTWRK Services, as well as the selection, assembly and arrangement thereof, are collectively referred to as the “Content”.
The Content may contain errors (typographical or otherwise) and omissions or may be out of date. NTWRK may change, delete, or update any Content at any time with or without notice. The Content is provided for informational and entertainment purposes only and is not binding on NTWRK in any way.
Unless otherwise noted, all Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by NTWRK or third parties that have licensed their use to NTWRK. You may view and use the Content only for your personal entertainment and for shopping and ordering on or through the NTWRK Services. Except as provided in the foregoing, NTWRK does not grant you or any person the right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the NTWRK Services, including without limitation, transferring, downloading, or otherwise copying any Content onto any storage medium. Any use of the Content, except as specifically permitted in these Terms or in a signed writing by NTWRK, is strictly prohibited.
As part of the NTWRK Services and/or your purchase of any product or service, NTWRK may, in its sole discretion, donate a specified dollar amount to a non-profit entity that NTWRK designates to receive such donation. NTWRK makes these donations at its sole discretion and makes no representations or warranties with respect to any particular non-profit, including without limitation, guaranteeing that the non-profit will receive the donation or use the donation for any specific purpose or result. Any tax benefits associated with donation will accrue, to the extent possible, to NTWRK.
NTWRK Content may incorporate a host and/or other talent who strive to entertain you. Any host or other talent is not part of the NTWRK team and is not an official spokesperson or representative of NTWRK and/or any product and/or service. As such, statements that the host and/or other talent make regarding products and services are made for entertainment purposes only, and may not be accurate, and you agree that NTWRK shall not be liable, either directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance on, any such content.
- Your Content
You are solely responsible for Your Content and the consequences of posting or publishing it. NTWRK assumes no responsibility for Your Content submitted by you or any other users of the NTWRK Service. You hereby affirm, represent and warrant that you own Your Content or that you have obtained all necessary licenses, rights, consents, and permissions to enable NTWRK to publish and otherwise utilize Your Content as authorized in these Terms.
You understand that the NTWRK Service is intended for public use and not for private communications and any submission of Your Content by you is made at your own risk.
Although NTWRK has no obligation to screen, edit, or monitor any of Your Content or other content accessed via the NTWRK Services, NTWRK reserves the right, and has absolute discretion, to remove, screen or edit any information posted or stored on the NTWRK Services at any time and for any reason without notice.
Notice and Procedure for Making Claims of Intellectual Property Infringement
If you are a copyright owner or an agent thereof, and believe that your work has been copied in a way that constitutes copyright infringement or your intellectual property rights have otherwise been violated pursuant to the Digital Millennium Copyright Act (“DMCA”), please provide the NTWRK designated copyright agent the written information specified below (see 17 U.S.C. Section 512(c)(3) for further detail):
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner or other intellectual property interest;
- A description of the copyrighted work(s) or other intellectual property(ies) that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the NTWRK Services, if applicable, with reasonable specificity sufficient to permit NTWRK to locate the material;
- Your address, telephone number, facsimile number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or other intellectual property owner, its agent, or the law; and
- A statement by you, under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or other intellectual property owner or are authorized to act on behalf of the copyright or other intellectual property owner.
The NTWRK copyright agent for notice of claims of copyright of other intellectual property infringement can be reached as follows:
P.O. Box 1058
8033 Sunset Blvd.
Los Angeles, CA 90046
NTWRK will process any notices of alleged copyright infringement and will take appropriate actions under the DMCA. Upon receipt of notices complying with the DMCA, NTWRK will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing.
NTWRK may notify the owner of the affected content so that he or she can make a notification pursuant to his or her rights under the DMCA. If you receive such a notice, you may provide counter-notification in writing to the NTWRK designated copyright agent. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared on the NTWRK Services before it was removed or access to it was disabled;
- A statement from you under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
- Your address, telephone number, facsimile number, and email address; and
- A statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside the United States, for any judicial district in which NTWRK may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or any agent of such person.
- Third-Party Sites and Content
Links to internet sites and mobile applications operated by third-parties, including NTWRK vendors and partners (“Linked Sites”), do not constitute sponsorship, endorsement or approval by NTWRK of the content, policies or practices of such Linked Sites. Linked Sites are not operated, controlled or maintained by NTWRK, and NTWRK is not responsible for the availability, content, security, policies or practices of Linked Sites, including without limitation, privacy policies and practices, and the quality, safety, legality or efficiency of any third-party products. Links to other sites, including without limitation, Linked Sites, are provided for your convenience and/or entertainment only, and you access them at your own risk.
To the extent any Content is provided by third parties, NTWRK includes it for informational purposes only. Pursuant to Section 230 of the Federal Communications Decency Act, providers of interactive computer services are not treated as publishers or speakers of information that is provided by other information content providers.
- NTWRK Account Registration
In order to access most of the features of the NTWRK Service, you are required to create and login to an account via certain account registration options as NTWRK may provide from time to time (“Account”). Your Account is free to create and maintain. You may only hold one Account per individual. You are solely responsible for any activities or actions taken on your Account, whether or not you have authorized such activities or actions. You agree that the information you provide to us about yourself (“Personal Information”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Personal Information to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use an Account that you are not authorized to use. If you become aware of any unauthorized use of your Account, you agree to notify us immediately at Legal@theNTWRK.com.
- Prices; Orders; Shipping and Handling
All prices displayed on the NTWRK Services are quoted in United States Dollars. NTWRK may restrict delivery to addresses located in the United States, outside of the United States or certain territories in NTWRK’s sole discretion. NTWRK will add shipping and handling fees and applicable sales/use tax. NTWRK reserves the right to discontinue or change specifications and prices on products and services offered through the NTWRK Services without prior notice and without incurring any obligation to you. Products and services offered on the NTWRK Services are available only while supplies last. NTWRK reserves the right to limit product orders to a maximum number of products per Account (including per shipping and/or billing address), as determined by NTWRK in its sole discretion. Descriptions of, or references to, products or services offered by the NTWRK Services do not imply endorsement of that product or service, or constitute a warranty, by NTWRK. All product images and descriptions on the NTWRK Service are shown for entertainment purposes only and may not be wholly representative of the products offered via the NTWRK Services and their features. Products may have slight variations, including but not limited to, variations in color, size and packaging, from the images shown on the NTWRK Service.
Your receipt of an order confirmation (whether via email, through the NTWRK Services, or otherwise) does not constitute NTWRK’s acceptance of an order. Prior to, and as a condition of, acceptance of an order, verification of information and approval of the order may be required. NTWRK reserves the right at any time after receipt of your order to accept or decline your order, or any portion thereof, even after your receipt of an order confirmation from NTWRK, for any reason. NTWRK reserves the right to refuse service to any customer without prior notification.
The risk of loss and title for all products purchased by you and shipped by NTWRK or one of NTWRK’s vendors shall pass to you upon NTWRK or NTWRK’s vendor’s delivery to the carrier for shipment.
Shipping and handling fees include, among other things, labor costs to receive, select and package the item for shipment, the costs of packaging and other supplies, internal (overhead) costs to process the other and fees paid to the carriers who ship and deliver the item to you, so the shipping and handling fee may exceed the actual fee paid by NTWRK to its carriers to send the item to you. Sales tax may be assessed on the shipping and handling fee in certain states, where applicable.
- Disclaimer and Limitation of Liability as to the NTWRK Content
NTWRK MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE NTWRK SERVICES, ANY LINKED SITE, OR THE CONTENT, INCLUDING WITHOUT LIMITATION, THE AVAILABILITY OF ANY SITE OR THE CONTENT, INFORMATION AND MATERIALS ON IT, OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THAT CONTENT, INFORMATION AND MATERIAL. NTWRK DOES NOT WARRANT OR REPRESENT THAT YOUR ACCESS TO, OR USE OF, THE NTWRK SERVICES OR ANY LINKED SITE WILL BE UNINTERRUPTED, FREE FROM ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NTWRK SERVICES OR ANY LINKED SITE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, ALL CONTENT PROVIDED ON OR THROUGH THE NTWRK SERVICES IS PROVIDED TO USERS “AS-IS”, WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. THE “AS-IS” CONDITION OF CONTENT IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF THE NTWRK SERVICES. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL NTWRK, ITS AFFILIATED AND RELATED ENTITIES, ITS AND THEIR SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ARISING IN ANY WAY OUT OF ACCESS TO, OR USE OF, OR INABILITY TO ACCESS OR USE ANY OF THE NTWRK SERVICES OR ANY LINKED SITE OR ITS CONTENTS, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, WITHOUT REGARD TO WHETHER NTWRK IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Disclaimer and Limitation of Liability as to Products and Services
ALL PRODUCTS SOLD BY NTWRK ARE SUBJECT TO ANY APPLICABLE WARRANTIES AND REPRESENTATIONS OF THEIR RESPECTIVE MANUFACTURERS, IF ANY. ACCORDINGLY, NTWRK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY PRODUCT OR SERVICE AVAILABLE OR SOLD ON THE NTWRK SERVICES. EXCEPT AS EXPRESSLY STATED HEREIN, NTWRK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO PRODUCTS OR SERVICES AVAILABLE OR SOLD THROUGH THE NTWRK SERVICES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL NTWRK, ITS AFFILIATED AND RELATED ENTITIES, ITS AND THEIR SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ARISING IN ANY WAY OUT OF ANY PRODUCT OR SERVICE AVAILABLE, SOLD OR PROVIDED THROUGH THE NTWRK SERVICES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, WITHOUT REGARD TO WHETHER NTWRK IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NTWRK’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM.
All sales are final, and all products and services are provided “AS IS” and on an “AS AVAILABLE” basis. There are no refunds on products purchased via the NTWRK Services, and THE ENTIRE RISK AS TO THE PRODUCT PURCHASED IS ASSUMED BY YOU. We may in our sole discretion and without any obligation, assist you in returning or exchanging a product in the event the product is damaged or defective.
You agree to defend, indemnify and hold harmless NTWRK, NTWRK’s vendors, and its and their affiliated and related entities and its and their respective directors, officers, employees and agents from and against all claims, losses, damages, liabilities and costs (including without limitation, reasonable attorneys’ fees, reasonable expert witness fees and court costs), arising out of or related to your breach of these Terms or your access to, use or misuse of, the NTWRK Services, including without limitation, Your Content, and your violation of the rights of any third party. The foregoing indemnification obligation shall survive termination of these Terms and the operation of the NTWRK Services or any services or product available, sold or provided to you arising out of or related to your use of the NTWRK Services. NTWRK reserves the right in its sole election, and at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NTWRK, and you agree to cooperate with NTWRK’s defense of any such claims.
- Messages and Notifications
You may have the opportunity to elect to receive text messages, emails, newsletters, push notifications and/or other means by which NTWRK may communicate with you, including without limitation, regarding the NTWRK Services and products and services available through the NTWRK Services (collectively, “Communications”). The Communications may be communicated by any lawful means, including without limitation, automatic telephone dialing systems, MMS, SMS or other technology. Your consent to receive Communications is not required as a condition of purchase products or services using the NTWRK Services.
- Mobile Services
The NTWRK Services include services that are available to you via your mobile phone or other mobile device (“Mobile Services”). The Mobile Services may include the ability to use your mobile device to place orders, receive and reply to Communications, and access certain other features of the NTWRK Services. Although NTWRK does not charge you for these Mobile Services, your mobile carrier's standard data and other rates and fees may apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you.
You agree that any Dispute between you and NTWRK shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and less appellate review than in court. "Dispute" shall be interpreted broadly and shall include any claim or controversy arising from or relating to these Terms or your purchase or use of any product or services, including for example any: (1) claims for relief or theories of liability, whether based in contract, tort, statute or otherwise; (2) claims that arose before these Terms; and (3) claims that arise after the cancelation or expiration of these Terms. "Dispute" shall not, however, include any issues relating to the existence, scope, or validity of this arbitration provision.
Notwithstanding anything in this arbitration provision to the contrary, either you or NTWRK may bring an individual action in small claims court if the claim is within the jurisdiction of that court.
For all Disputes whether pursued in small claims court or arbitration, you must first give NTWRK an opportunity to resolve your claim through good faith negotiation by sending a written description of your claim to Commerce Media Holdings LLC, Attn.: General Counsel, P.O. Box 1058, 8033 Sunset Blvd., Los Angeles, CA 90046. If NTWRK is unable to resolve the claim within 60 days after NTWRK’s receipt thereof, you may pursue your claim in arbitration (or in small claims court, if applicable). You agree that if you fail to timely pay amounts due, NTWRK may assign your account for collection, and the collection agency may pursue though any lawful means, including in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law.
In order to initiate arbitration proceedings pursuant to these Terms, you must send a letter requesting arbitration and describing your claim to our registered agent, The Corporation Trust Company, to begin arbitration, at the following address:
Commerce Media Holdings LLC, doing business as NTWRK
c/o The Corporation Trust Company
1209 Orange Street
Corporation Trust Center
Wilmington, DE 19801
You agree that the Federal Arbitration Act and federal arbitration law apply to these Terms. The Dispute will be arbitrated by a mutually agreeable neutral arbitrator. If you and NTWRK cannot agree on the selection of an arbitrator within 30 days of the date that the request for arbitration was received by The Corporation Trust Company, the Dispute will be arbitrated by JAMS arbitration services. Unless you and NTWRK agree to use a different set of rules, the arbitrator will use the applicable JAMS arbitration rules. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-JAMS.
Upon filing of the arbitration request, NTWRK will pay all filing, administration, and arbitrator fees for the arbitration proceeding. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys' fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys' fees and costs regardless of whether they would have been available in a court unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration were frivolous or brought for an improper purpose pursuant to the Federal Rules of Civil Procedure.
YOU AND NTWRK AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU AND NTWRK WAIVE THE RIGHT TO PROSECUTE OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR OTHER REPRESENTATIVE ACTION. YOU AND NTWRK MAY SEEK RELIEF ONLY ON BEHALF OF THE RESPECTIVE PARTIES AND ONLY TO THE EXTENT NECESSARY TO REMEDY THE RESPECTIVE PARTIES’ INDIVIDUAL CLAIMS. THIS CLASS ACTION WAIVER IS A MATERIAL AND ESSENTIAL PART OF AND CANNOT BE SEVERED FROM THIS ARBITRATION PROVISION. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION. IF A CLAIM OR ACTION PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND NTWRK WAIVE ANY RIGHT TO A JURY TRIAL.
- Governing Law
Access to or use of the NTWRK Services shall not be construed as NTWRK’s purposeful availment of the privilege or benefits of doing business in any state or legal jurisdiction other than Delaware. These Terms, and any claim or action arising out of or relating to these Terms, shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of Delaware, without regard to conflicts of law provisions; provided, however, that if you are a resident of the State of New Jersey, these Terms, and any claim or action arising out of or relating to these Terms, shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of New Jersey, without regard to conflicts of law provisions. If any claim or action proceeds in court rather than through arbitration, the sole and exclusive jurisdiction for any such claim or action shall be in the state courts of California for Los Angeles County and the federal courts for the Central District of California; provided, however, that if you are a resident of the State of New Jersey, the sole and exclusive jurisdiction for any such claim or action shall be in the state courts of the State of New Jersey for the County of Gloucester and the federal courts for the District of New Jersey.
These Terms constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter. No waiver by NTWRK of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms. Nothing in these Terms shall be construed to create a partnership, joint venture or agency relationship between you and NTWRK. You may not assign any of your rights or delegate any of your duties under these Terms without the prior written consent of NTWRK. NTWRK may assign these Terms and/or any of its rights, and delegate its duties in its discretion. Any purported assignment which is inconsistent with the foregoing shall be null and void. In the event any provision of these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. All representations, warranties and indemnities contained herein or made by you in connection herewith shall survive any termination, expiration or suspension of your rights under these Terms. These Terms cannot be amended except by a writing signed by both parties. No party hereto has relied on any statement, representation or promise of any other party or with any other officer, agent, employee or attorney for the other party in executing these Terms, except as expressly stated herein.
NTWRK shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including without limitation, acts or omissions of third-parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.
Last updated and Effective Date: October 4, 2018