TERMS AND CONDITIONS
1.1 NappApp Product
These Terms & Conditions (these “Terms”) contain the terms and conditions on which we supply content, Product or services listed on www.napp.app (the “Website”), through our applications (the “Apps”) or via other delivery methods to you (the Website and such content, Product, services and the Apps are collectively referred to herein as the “Product” or “Product”, which may be updated from time-to-time at the sole discretion of NappApp).
Please read these terms and conditions, carefully before ordering any Product from the Website or third party App stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.).
The terms “NappApp,” “us” or “we” refers to NappApp, Inc. and its wholly owned UK based subsidiary, NappApp Meditation Limited. The term “Device” refers to the device which is used to access the Product including but not limited to computers, smart phones and tablets.
The term “you” refers to the user of the Product. When you order (“Order”) any Product, or otherwise use or access the Product, you agree to be bound by these Terms and all applicable laws, rules and regulations. You may also be asked to click “I accept” at the appropriate place prior to your purchase of access to the Product. At such time, if you do not click “I accept”, you may not be able to complete such purchase or gain such access. By using the Product, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the Product.
Our contact email address is email@example.com. All correspondence to NappApp including any queries you may have regarding your use of the Product or these Terms should be sent to this contact email address.
1.2 ARBITRATION NOTICE AND CLASS ACTION WAIVERPLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND NappApp AGREE THAT DISPUTES RELATING TO THESE TERMS OR YOUR USE OF THE Product WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND NappApp WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1.3 BASIS OF LICENSE(a) These Terms and the Order set out the whole agreement between you and us for the supply of the Product. (b) Please check that the details in these Terms and on the Order are complete and accurate before you use or commit yourself to purchase the Product. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by an officer of NappApp.
1.4 CHANGES TO TERMSNappApp reserves the right to change or update these Terms, or any other of our policies or practices, at any time, and will notify users by posting such changed or updated Terms on this page. Any changes or updates will be effective immediately upon posting to www.napp.app. Your continued use of the Product constitutes your agreement to abide by the Terms as changed. Under certain circumstances we may also elect to notify you of changes or updates to our Terms by additional means, such as pop-up or push notifications within the Product or email.
2.1 BECOMING A MEMBER
(a) To become a Member you need to go to the relevant section of the Product, then submit the process to Apple.
(b) By placing an Order through the Product, you warrant that:
(i) You are legally capable of entering into binding contracts;
(ii) All registration information you submit is truthful and accurate;
(iii) You will maintain the accuracy of such information; and
(iv) Your use of the Product does not violate any applicable law or regulation.
As a NappApp Member you will receive access to use NappApp unrestrictedly.
By agreeing to become a Member you opt-in to receiving occasional special offer, marketing, survey and Product based communication emails. You can easily unsubscribe from NappApp commercial emails by following the opt-out instruction in these emails. NappApp memberships and subscriptions are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever.
(a) NappApp account holders may access the Product in two ways:
(i) "Basics" Free Trial: a free-of-charge program, which gives unlimited access to 14 days of our “Apps”
(ii) Paid Subscription: a subscription fee-based program, which gives access to unlimited "Napps". You will only have access to the Subscription Program while your subscription is active and subsisting.
You may have access to a free trial period of the Subscription Program in accordance with certain promotional offers. All subscription services provide access through the Product. You can become a subscriber to the Subscription Program by purchasing a subscription to the Product within the App.
Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, the sale is final, and we will not provide a refund. Your purchase will be subject to Apple’s applicable payment policy, which also may not provide for refunds. If you purchase a subscription through the Google Play store, the sale is final and we will not provide a refund.
(b) NappApp offers a monthly subscription option. For the purposes of our monthly subscription, a month constitutes 30 calendar days.
(c) Our “Monthly” subscription is paid in monthly installments. For each month that your monthly subscription is active, you acknowledge and agree that NappApp is authorized to charge the same credit card as was used for the initial subscription fee or other payment method as set forth in section 2.6(h) (the “Payment Method”) in the amount of the then current monthly subscription fee.
The monthly renewal subscription fees will continue to be billed to the Payment Method you provided, automatically until cancelled. You must cancel your subscription before it renews each month in order to avoid billing of the next month’s subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial-month subscription period.
(d) You agree to promptly notify NappApp of any changes to the Payment Method you provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by you.
2.4 DEVICE REQUIREMENTSTo enjoy NappApp via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Apple-Appstore.
2.5 CORPORATE AND OTHER CONSUMER COMMUNITIESWhile NappApp is a consumer Product company, there is increasing interest by large consumer communities (corporations, universities, hospitals, etc.) (“Communities”) to introduce the Product to their employees and members. In some cases, these Communities may supplement these Terms with their own terms and conditions. In such event, these Community terms and conditions shall also apply to your use of the Product. In the event of any conflict with such additional terms and these Terms, these Terms shall prevail.
2.6 CHANGING FEES AND CHARGESWe may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Product. We will notify you at least 30 calendar days in advance of any such change. If you do not agree to the change, you may cancel your membership or subscription in your account settings or by emailing firstname.lastname@example.org.
3. CANCELLATION OF SERVICES
3.1 CANCELLATION BY YOU
(a) You may cancel a Monthly subscription at any time. Cancellation is effective at the end of the applicable monthly period. Please make any such cancellation by visiting here or emailing email@example.com.
(b) Please note that if you purchase a subscription through the Apple iTunes Store or our iPhone application, you may cancel your subscription by cancelling automatic renewal of paid In App Subscriptions by selecting Manage App Subscriptions in your iTunes Account settings and selecting the subscription you want to modify.
3.2 CANCELLATION BY USWe may suspend or terminate your use of the Product as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms, includes without limitation, the unauthorized copying or download of our audio or video content from the Product.
3.3 PROMOTION CODESAny promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Product, except where expressly stated otherwise. Previous users or trial users of the Product do not qualify as new users. No promotion code or discount will apply to corporate or other Community subscriptions. Unless otherwise set forth in the terms of any promotion, all pricing promotions or discounts will apply to the initial period of the subscription, and any renewals will be charged at the rate in effect at the time of renewal for the type of subscription purchased.
4. PROHIBITED USE OF THE Product4.1 You agree not to upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Product or the Product themselves. You agree not to interfere with the servers or networks underlying or connected to the Product or to violate any of the procedures, policies or regulations of networks connected to the Product. You may not access the Product in an unauthorized manner.
4.2 You agree not to impersonate any other person while using the Product, conduct yourself in an offensive manner while using the Product, or use the Product for any illegal, immoral or harmful purpose.
4.3 By breaching the provisions of this section 4, you may commit a criminal offense under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Product will cease immediately.
4.4 You agree not to use the Product for any purposes related to scientific research, analysis or evaluation of the Product without the express written consent of NappApp.
5. MATERIALS OFFERED THROUGH THE Product
(a) All materials (including software and content whether downloaded or not) contained in the Product are owned by NappApp, unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
(b) Audio or video content from NappApp not explicitly indicated as downloadable may not be downloaded or copied from the Product or any Device.
(c) The Product are not intended for your commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges. You must not use any part of the materials used in or on the Product for commercial purposes without obtaining a written license to do so from us. Material from the Product may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent.
Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the Product and may subject you to legal liability.
You agree not to use the Product for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Product. Appropriate legal action may be taken for any illegal or unauthorized use of the Product.
(d) A limited amount of content may be marked and authorized for the user to share in their personal social channels (Facebook, Twitter, etc.). With respect to content made available by NappApp through the Product that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), NappApp grants you a limited right to download, reproduce and distribute Distribution Content over the internet as part of your User Commentary.
You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through your computer systems and over the Internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Product, such as display and distribution of Distribution Content only within specified usage dates.
You agree not to publish the Distribution Content with other content that is known by you to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain trackers that enable us to collect information with respect to the distribution and consumption of such content. (f) You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Product. If you make other use of the Product, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. NappApp will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
5.2 TRADEMARKSNappApp®, the NappApp logo and all other NappApp product or service marks are trademarks of NappApp. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Product are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material. Your misuse of the trademarks displayed on the Product is strictly prohibited. NappApp will enforce its trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
6. AVAILABILITY OF Product6.1 Although we aim to offer you the best service possible, we make no promise that the Product will meet your requirements and we cannot guarantee that the Product will be fault free. If a fault occurs in the Product, please report it to us at firstname.lastname@example.org and we will review your complaint and, where we determine it is appropriate to do so, correct the fault. If the need arises, we may suspend access to the Product while we address the fault. We will not be liable to you if the Product are unavailable for a commercially reasonable period of time.
6.2 Your access to the Product may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Product. We will restore the Product as soon as we reasonably can. In the event that the Product are unavailable, our usual Order and cancellation deadlines apply; please notify us of changes to your Order by emailing email@example.com.
7. USER MATERIAL7.1 The Product may let you submit material to us: for example, you may be able to upload a photo to your profile, post subjects and comments in the community and comment on various matters in various parts of the Product. You may be able to upload video, images or sounds. In these Terms, we use the term “User Material” to refer to any publically available material of any kind that you submit to us, including text, files, images, photos, video, sounds and musical or literary works. User Material does not include the account information, Product purchase, or Product use information which you provide in registering for and using Product.
7.2 This section 7 sets out the rights and obligations that each of us have in connection with User Material. If you review or submit User Material, you are agreeing to do so in accordance with these Terms. If you do not want to review or submit User Material in accordance with these Terms, then you should not do so.
7.3 We do not systematically review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy.
7.4 We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Product, particularly where User Material breaches this section 7, and we may do this with or without giving you any prior notice.
7.5 We may link User Material or parts of User Material to other material, including material submitted by other users or created by NappApp or other third parties. We may use User Material for our internal business purposes, for example, to examine trends or categories or to promote, market or advertise NappApp. You acknowledge that we may indirectly commercially benefit from use of your User Material.
7.6 Each time you submit User Material to us, you represent and warrant to us as follows:
(a) You own your User Material or have the right to submit it, and in submitting it you will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trade mark), privacy or publicity rights, rights of confidentiality or rights under contract.
(b) Your User Material is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give rise to civil liability, violate any law, or is otherwise deemed inappropriate.
(c) Your User Material does not advertise any product or service or solicit any business.
(d) Your User Material does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person’s consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.
(e) You will not collect usernames and/or email addresses of users for the purpose of sending unsolicited email.
(f) You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another user or person.
(g) You will not engage in any automated use of the system, such as using scripts to alter our content.
(h) You will not, without authorization, access, tamper with, or use non-public areas of the Product, NappApp’s computer systems, or the technical delivery systems of NappApp’s providers.
(i) Except as necessary to maintain your own computer security by use of commercial-off-the-shelf anti-virus or anti-malware Product, you will not attempt to probe, scan, or test the vulnerability of the Product or any other NappApp system or network or breach any security or authentication measures.
7.7 We are entitled to identify you to third parties who claim that their rights have been infringed by User Material you have submitted.
7.8 User Material is not considered to be confidential. You agree not to submit any content as User Material in which you have any expectation of privacy. We do not claim any ownership rights in User Material. However, by submitting User Material you hereby grant NappApp an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the User Material you post on the Product, or any portion thereof, and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such User Material, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party. NappApp may include your User Material in NappApp’s Distribution Content that is made available to others through the Product.
Be aware that NappApp has no control over User Material once it leaves the Product, and it is possible that others may duplicate material found on the Product, including, but not limited to, on other sites on the Internet. You represent and warrant that you own or otherwise control the rights to your User Material. You agree to indemnify NappApp and its affiliates for all claims arising from or in connection with any claims to any rights in your User Material or any damages arising from your User Material.
7.9 Any inquiries, feedback, suggestions, ideas, other information which is not part of your use of the Product or User Material that you provide to us (collectively, “Submissions”) will be treated as non-proprietary and non-confidential. By transmitting, uploading, posting, e-mailing, or otherwise submitting Submissions to the Product, you grant, and you represent and warrant that you have the right to grant, to NappApp an irrevocable, perpetual, non-exclusive, royalty free, worldwide license to use, telecast, copy, perform, display, edit, distribute and otherwise exploit the Submissions, or any portion thereof and any ideas, concepts, or know how contained therein, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner (including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes) and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Submissions, and to grant and authorize sublicenses of the foregoing without any payment of money or any other form of consideration to you or to any third party.
You also acknowledge that your Submissions will not be returned to you and that NappApp has no obligation to acknowledge receipt of or respond to any Submissions. If you make a Submission, you represent and warrant that you own or otherwise control the rights to your Submission.
You agree to indemnify NappApp and its affiliates for all claims arising from or in connection with any claims to any rights in any Submission or any damages arising from any Submission.
8. LINKS TO WEBSITES/HOME PAGE8.1 We may provide links to other websites or services for you to access. You acknowledge that any access is at your sole discretion and for your information only. We do not review or endorse any of those websites or services. We are not responsible in any way for:(a) the availability of, (b) the privacy practices of, (c) the content, advertising, Product, goods or other materials or resources on or available from, or (d) the use to which others make of these other websites or services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such websites or services.
8.2 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Product must not be framed on any other website, nor may you create a link to any part of the Product unless you have written permission to do so from NappApp. We reserve the right to withdraw linking permission with written notice. The website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on or in the Product other than that set out above, please address your request to firstname.lastname@example.org.
9. Product DISCLAIMERThe information contained in the Product is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Product or the information contained on the Product for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
10. MEDICAL DISCLAIMER10.1 NappApp is a provider of online and mobile content in the health & lifestyle space. We are not a health care or medical device provider, nor should our Product be considered medical advice. Only your physician or other health care provider can do that. While there is third party evidence from research that powernaps can assist in the prevention and recovery process for a wide array of conditions as well as in improving some performance issues, NappApp makes no claims, representations or guarantees that the Product provide a benefit.
10.2 Any health information and links on the Product, whether provided by NappApp or by contract from outside providers, is provided simply for your convenience.
10.3 Any advice or other materials in the Product are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Product.
11. END USER LICENSE11.1 Subject to the terms of this license agreement (“License Agreement”), as set out in this section 11, and these other Terms, and your payment of applicable subscription fees, NappApp grants you a limited, non-exclusive, revocable license to stream, download and make personal non-commercial use of the Product.
11.2 The Product contain or embody copyrighted material, proprietary material or other intellectual property of NappApp or its licensors. All right, title and ownership in the Product remain with NappApp or its licensors, as applicable. The rights to download and use the Product are licensed to you and are not being sold to you, and you have no rights in them other than to use them in accordance with this License Agreement and our other Terms.
11.3 You agree that you will not and you will not assist or permit any third party to:
(a) Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble the Product in any way, or create derivative works of the Product;
(b) Use the Product or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever;
(c) Rent, lease, loan, make available to the public, sell or distribute the Product in whole or in part;
(d) Tamper with the Product or circumvent any technology used by NappApp or its licensors to protect any content accessible through the Product;
(e) Circumvent any territorial restrictions applied to the Product; or
(f) Use the Product in a way that violates this License Agreement or the other Terms.
11.4 You may not make the Product available to the public. The Product made available (in whole or in part) are owned by NappApp or its licensors and your use of them must be in accordance with these Terms.
12. DIGITAL MILLENIUM COPYRIGHT ACT (“DMCA”) NOTICE12.1 We are committed to complying with copyright and related laws, and we require all users of the Product to comply with these laws. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Product in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by copyright law.
Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights.
It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
12.2 If you feel that a posted message is objectionable or infringing, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue. Our designated agent (i.e., the proper party) to whom you should address such notice is listed below.
12.3 If you believe that your work has been copied and posted on the Product in a way that constitutes copyright infringement, please provide our designated agent with the following information:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Product;
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
13. GENERAL TERMS AND CONDITIONS
13.1 ASSIGNMENT BY USNappApp may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms to anyone else. These Terms are personal to you and no third party is entitled to benefit under these Terms except as set out here.
13.2 INDEMNITY BY YOUYou agree to defend, indemnify and hold NappApp and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Product, your placement or transmission of any message, content, information, software, or other submissions through the Product, or your breach or violation of the law or of these Terms. NappApp reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with NappApp defense of such claim.
13.3 WARRANTIES AND LIMITATIONS(a) We warrant to you that any Product purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.
(b) We warrant that we will use reasonable skill and care in making the Product available to you during your subscription.
(c) Nothing in this sections 13.3 or otherwise in these Terms shall exclude or in any way limit NappApp’s liability for: fraud; death or personal injury caused by negligence; or liability to the extent the same may not be excluded or limited as a matter of law.
(d) The Product and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to them, including as to the accuracy, completeness or currency of the Product or their content. We assume no liability or responsibility for any errors or omissions in the content of the Product, or any failures, delays, or interruptions in the provision of the Product. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Product to the broadest extent permitted by law.
We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Product. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Product. We make no warranties or representations that your use of content and information posted on the Product will not infringe rights of third parties.
(e) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.
13.4 NO WAIVERIf we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
13.5 FORCE MAJEUREWe will not be liable to you for any lack of performance, or the unavailability or failure, of the Product, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
13.6 INTERPRETATIONIn these Terms, unless the context requires otherwise: i) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
13.7 ELECTRONIC COMMUNICATIONS(a) Applicable laws require that some of the information or communications we send to you should be in writing. When using the Product, you agree to transact with us electronically, and that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on the Product. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
(b) In order to retain a copy, please select “Print,” and select the appropriate printer. If you do not have a printer, you can copy the text and the underlying agreement(s) and paste them into a new document in a word processor or a text editor on your computer and save the text.
(c) You have the right to receive a paper copy of the communications. To receive a paper copy, please request it by emailing us at email@example.com
(d) We may charge you a reasonable service charge to mail you a paper copy of any communication. We will either include such service charge on our fee schedule or we will first inform you of the charge and provide you with the choice as to whether you still want us to send you a paper copy. Please be sure to state that you are requesting a copy of the particular communication.
(e) To receive and view an electronic copy of the communications you must have the following equipment and software:
(i) A personal computer or other device which is capable of accessing the Internet. Your access to this page verifies that your system/device meets these requirements.
(f) To retain a copy, you must either have a printer connected to your personal computer or other device or, alternatively, the ability to save a copy through use of printing service or software such as Adobe Acrobat®. If you have a word processor or text editor program on your computer, then you can also copy the text and paste the text into a new document in the word processor or text editor and save the text.
(g) You can also contact us via email at firstname.lastname@example.org to withdraw your consent to receive any future communications electronically, including if the system requirements described above change and you no longer possess the required system. If you withdraw your consent, we may terminate your use of the Product.
(h) We reserve the right, in our sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which we provide electronic communications. We will provide you with notice of any such termination or change as required by law.
13.8 NOTICESUnless otherwise specifically indicated, all notices given by you to us must be given to NappApp at email@example.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.7 above. Notice will be deemed received and properly served immediately when posted on the Product or when an e-mail or other electronic communication is sent. In proving the service of any notice via email, it will be sufficient to prove that such e-mail was sent to the specified e-mail address of the addressee.
13.9 ENTIRE AGREEMENTThese Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.
13.10 THIRD PARTY RIGHTSA person who is not party to these Terms will not, subject to section 12 (DMCA), have any rights under or in connection with these Terms.
13.11 OUR LIABILITY(a) We will use reasonable endeavors to remedy faults in the Product. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Product in question. In addition, we will not be liable for:
(i) Faulty operation of computers during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by you not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).
(ii) Any loss or damage due to viruses or other malicious software that may infect your Device, computer equipment, software, data or other property caused by you accessing, using or downloading from the Product, or from transmissions via emails or attachments received from us.
(iii) Any use of websites linked to the Product but operated by third parties.
(b) To the extent permitted by law, NappApp and its affiliates, suppliers, clients, or licensors (collectively, the “Protected Entities”) shall not be liable for any consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Product or the content, materials and functions related thereto, your provision of information via the Product, or lost business or lost sales, or any errors, viruses or bugs contained in the Product, even if such Protected Entity has been advised of the possibility of such damages.
13.12 ARBITRATIONPLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH NappApp, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NappApp.
(a) Applicability of Arbitration Agreement. All disputes arising out of, relating to, or in connection with these Terms or your use of the Product that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and NappApp are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
(b) Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The AAA Consumer Arbitration Rules (“AAA Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration will be conducted by a single neutral arbitrator.
If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county of your billing address. In the case of an in-person hearing, the proceedings will be conducted at a location which is reasonably convenient for both parties with due consideration of the ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the arbitration institution.
Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA Rules with the remainder paid by NappApp. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse NappApp for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator 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 14 days of the arbitrator’s ruling on the merits.
(c) Authority of Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and NappApp. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award all remedies available under applicable law, the arbitral forum's rules, and the Terms. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and NappApp.
(d) Jury Trial Waiver. You and NappApp waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and NappApp elect to have claims and disputes resolved by arbitration. In any litigation between you and NappApp over whether to vacate or enforce an arbitration award, you and NappApp waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.
(e) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND NappApp AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR CONSOLIDATED ACTION. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor NappApp are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in section 13.13 below.
(f) Opt-out. YOU MAY OPT-OUT OF THIS ARBITRATION AGREEMENT. If you do so, neither you nor NappApp can force the other to arbitrate. To opt-out, you must notify NappApp in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, and the email address you used to set up your NappApp account (if you have one), and an unequivocal statement that you want to opt-out of this arbitration agreement. You must send your opt-out notice to one of the following email address: firstname.lastname@example.org
(g) Small Claims Court. Notwithstanding the foregoing, either you or NappApp may bring an individual action in small claims court.
(h) Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with NappApp.