Effective July 1, 2015
Please read the following important Terms of Service Agreement (the “Agreement”) before accessing or using any of the various services (the “Services”) made available to you (“you”) by Nod (“Nod”) through our mobile application (“Application”). ONLY USERS WHO ARE 13 YEARS OF AGE OR OLDER MAY REGISTER FOR NOD. By completing the registration process for the Application, you represent that you are 13 years of age or older, and can and will be legally bound by this Agreement. If you are a minor, your parent or guardian must read and accept the terms of this Agreement before you register. By registering on Nod, you represent and warrant that you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity. You may not participate where doing so would be prohibited by any applicable law or regulation.
Nod reserves the right to modify or amend this Agreement at any time, for any reason, or for no reason at all, at Nod’s sole discretion. The most recent version of this Agreement will be posted on the Application. It is your sole responsibility to keep yourself apprised of any modifications or amendments to this Agreement. Your continued use of the Nod Application following the posting of modifications or amendments to this Agreement confirms your acceptance of such modifications or amendments. Should you object to any terms and conditions of the Agreement or any subsequent modifications thereto or become dissatisfied with Nod in any way, your only recourse is to stop using the Application.
B) Description of Services
You will be provided with a variety of Services, as described on the Application. Users of the Application who are registered to use the Services (“Members”) may also utilize certain additional Services offered from time to time such as shopping and e-commerce offerings and various informational Services. Nod reserves the rights to enhance, modify, or discontinue the Services, in whole or in part, at any time, for any reason, or for no reason at all, at Nod’s sole discretion, with or without notice to Members, and with no obligation to Members.
C) Member Conduct
Use of the Services by you, as Member, is subject to all applicable local, state, national and international laws and regulations. Nod reserves the right, but does not assume any obligation, to monitor the Services to enforce this Agreement. Nod does not guarantee that any monitoring it does perform will be to your satisfaction. Upon learning of any violation of this Agreement, Nod, at its sole discretion, may terminate your access to and use of the Services, require you to remedy such violation, and/or take any other actions that Nod deems appropriate to enforce its rights and pursue all available remedies. Without limitation, Nod reserves the right to terminate your access to and use of the Services if, in our view, your conduct fails to meet any of the following guidelines:
- You shall only send messages to members who have expressly agreed to receive such messages and shall cease all communication with any member that expresses a request to stop receiving messages from you.
- You shall not engage in any activity that constitutes harassment, including, but not limited to, repeated unwanted contact, interfering with another Member’s use of Application, or stalking.
- You shall not attempt to interfere with any other person’s use of the Services.
- You shall not misrepresent their identity or impersonate any person or entity, including, but not limited to, a Nod employee, forum leader, guide or host.
- You shall not hold themselves out as sponsored by, endorsed by, or affiliated with the Application.
- You shall not use any portion of the Application or the Services to post, upload, message, transmit or otherwise make available junk mail, commercial advertisements, or any other form of commercial solicitation.
- You shall not use any portion of the Application or the Services to post, upload, message, transmit or otherwise make available content, including user names and friend list names, that is harmful, threatening, abusive, vulgar, obscene, profane, defamatory, libelous, hateful, fraudulent, or racially, ethnically or otherwise objectionable.
- You shall not use any portion of the Application or the Services to post, upload, message, transmit or otherwise make available viruses, corrupted data or other harmful, disruptive or destructive files.
- You shall not engage in any activity that is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual.
- You shall not upload photos, graphics or other content that contain or promote illegal substances or activities, including, but not limited to, underage drinking or smoking, substance abuse, weapon use, or gang affiliation.
- You shall not post content that contains or displays pornographic or sexually explicit material of any kind.
- You shall not post content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting content on the Application, the posting Member 13. represents that he or she had the lawful right to distribute and reproduce such content.
- You shall not provide material that exploits people under the age of 18 in a sexual or violent manner.
- You shall not provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses.
- You shall not attempt to gain unauthorized access to Nod’s database or other computer systems.
- You shall not attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Nod in connection with the Application or the Services.
- You shall not engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services or the Application.
- You shall not engage in any activity that solicits or is designed to solicit password or personal identifying information for commercial or unlawful purposes from other Members.
- You shall not publicly post information that poses or creates a privacy or security risk to another person, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers.
- You shall not collect or store personal data about other Members for the purpose of using such personal data in connection with the prohibited conduct and activities set forth in paragraph #1 through #20 above.
- You shall not use any portion of the Application or the Services for any unlawful purpose.
- You shall not use the account, username, or password of another Member at any time or disclose their password to any third party or permit any third party to access their account. All judgments concerning the applicability of these guidelines shall be at the sole and exclusive discretion of Nod and its designees. These guidelines do not create any private right of action on the part of any third party or any reasonable expectation that the Application will not contain any content prohibited by these guidelines. As a provider of interactive services, Nod is not liable for any statements, representations or content provided by Members in any public forum, personal home page or any other interactive area. Although Nod has no obligation to screen, edit or monitor, Nod reserves the right in its sole discretion to pre-screen, refuse or remove any content that is available via the Application or Services. Nod and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable. An account may be terminated at any time, without notice, depending on the severity of the offense, which is determined exclusively at the discretion of Nod. Nod is not obligated to provide a Member with a warning prior to removal. Failure to enforce these guidelines in some instances does not constitute a waiver of Nod’s right to enforce these guidelines in other instances.
E) Consent to Commercial Email and Messages
YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES FROM NOD AND ITS AFFILIATES, AND ACKNOWLEDGE AND AGREE THAT YOUR EMAIL ADDRESS AND OTHER PERSONAL INFORMATION MAY BE USED BY NOD AND ITS AFFILIATES FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES.
YOU REPRESENT TO US THAT EACH PERSON YOU ADD TO THE APPLICATION, PERSONAL CHAT AND/OR GROUP CHAT HAS CONSENTED TO BE ADDED AND TO RECEIVE MESSAGES FROM NOD AND FROM YOU.
F) Member Account and Password
Once you register for Nod, you will have a password and an account with Nod. You are responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify Nod of any unauthorized use of your account or any other breach of security known to you. Nod will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Nod or others for such unauthorized use.
Nod may offer the Services through a mobile web site and/or mobile applications (collectively, the “Mobile Applications”). This Agreement governs all Services that are accessible on or through the Mobile Applications. If you use the Services on a mobile device, information about your use of the Services through your mobile device and carrier may be communicated to us, including but not limited to your mobile carrier, your mobile device, or your physical location. Although Nod provides Services through the Mobile Applications free of charge, your mobile carrier’s standard fees and rates will still apply. You accept responsibility for all charges
I) Copyrights, Trademarks, Patents and Intellectual Property Rights
You acknowledge that messages, files or other materials (“Content”) contained on the Application, and third party advertisements on the Application and distributed via email, of a commercial nature and presented to you by Nod and the Services, are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You are permitted to use Nod Content or third party Content only as expressly authorized by Nod or the third party advertiser. You may not (1) resell or commercially utilize the Application, the Nod Content or third party Content therein; (2) distribute, publicly perform or publicly display any Nod Content or third party Content; (3) copy, reproduce, distribute, or create derivative works from the Nod Content or third party Content without expressly being authorized to do so by Nod or the third party advertiser; (4) use any data mining, robots or similar data gathering or extraction methods; (5) download (other than page caching) any portion of the Application, the Nod Content or third party Content, or any information contained therein without expressly being authorized to do so by Nod or the third party advertiser; or (6) use the Application, the Nod Content or third party Content other than for its intended purpose. Member may make a copy of the Nod Content or third party Content for Member’s personal, noncommercial use only, provided that Member keeps all copyright or other proprietary notices intact.
Although Nod does not claim ownership of content that you provide to Nod, by providing content to Nod, you automatically grant, and represent and warrant that you have the right to grant, to Nod a worldwide, irrevocable, perpetual, non-exclusive, and fully sublicenseable, license to use, copy, perform, display, and distribute said content. Nod respects copyright law and expects Members to do the same. Illegal or unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders’ rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Nod’s agent for notice of claims of copyright or other intellectual property infringement (“Agent”), at:
Nod Copyright Agent
110 Pacific Ave Mall
San Francisco, CA 94111
Please see 17 U.S.C. § 512(c)(3) for the requirements of proper notification. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Nod has adopted a policy of terminating, in appropriate circumstances, and at Nod’s sole discretion, Members who are deemed to be repeat infringers. Nod may also, at its sole discretion, limit access to the Application and/or terminate the account of any Member who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
Nod makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Application. Such websites are not under the control of Nod and Nod is not responsible for the contents of any linked sites or any link contained in a linked website, or any review, changes or updates to such websites. Nod provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Nod of any website or any information contained therein. When you leave the Application, you should be aware that Nod’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Application.
K) Third Party Content
Nod may provide third party content on the Application and may provide links to websites and content of third parties (collectively, the “Third Party Content”) as a service to those interested in this information. Nod does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Nod is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. You agree to use such Third Party Content contained therein at your own risk.
L) Advertisements and Promotions; Third-Party Products and Services
Nod may run advertisements and promotions from third parties on the Application or may otherwise provide information about or links to third-party products or services on the Application. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Nod is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-Nod advertisers or third party information on the Application.
You and Nod agree that, except as otherwise specifically provided in this Agreement, you and Nod shall seek to resolve any and all disputes between Nod (and/or Nod’s affiliates) and you, respectively, including, without limitation, all claims, counter-claims and cross-claims (collectively, “Claims”), whether in law, equity or otherwise, solely through individual arbitration in accordance with the policies and procedures set forth in this Agreement. Such disputes shall include without limitation:
- disputes arising out of and/or otherwise relating to Nod’s Terms of Service;
- disputes arising out of and/or otherwise relating to any Services and/or any content on the Application;
- disputes arising out of and/or otherwise relating to any information, communications and/or other material that you and/or any other person and/or entity provide to and/or through the Application;
- disputes arising out of and/or otherwise relating to any information and/or other material that is collected, stored and/or disseminated by, on behalf of and/or with the approval of Nod;
- disputes arising out of and/or otherwise relating to any advertising and/or other communications by Nod in connection with the Application;
- disputes that are the subject of purported class action litigation in which you are not a member of a certified class;
- disputes that arose before you entered into this Agreement and/or any prior version of this Agreement;
- disputes that may arise after you terminate your registration with the Application; and
- disputes arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.
Not withstanding the foregoing, and in lieu of arbitration, either you and/or Nod may bring an individual action against the other in small claims court. You and/or Nod may bring any Claim against the other to the attention of a federal, state and/or local government entity, which may elect to seek relief against Nod on your behalf, and/or against you on Nod’s behalf. Additionally, Nod may bring an action in court relating to claims that a user has registered with a false identity or is violating these Terms of Service by sending misleading commercial messages to other user in violation of the CAN-SPAM act and related state and federal laws.
You agree that you and Nod hereby have voluntarily and intentionally waived any and all right to a trial by jury, and (except as otherwise specifically provided in this Agreement) any and all right to participate in a class action. The Federal Arbitration Act governs the interpretation and enforcement of this dispute provision. This dispute provision shall survive termination of this Agreement.
For a party hereto to initiate arbitration against the other party it must first send by certified mail to the other party a written notice of dispute (“Notice”). The Notice must identify and detail the nature of the party’s Claim, the basis for that Claim, and the specific relief being sought for that Claim, including, without limitation, any Claim for injunctive relief. For the parties’ convenience, a form for providing Notice is available at here to download and complete. A Notice being sent to Nod must be addressed to:
Dispute Resolution Department, Nod
110 Pacific Ave Mall, Box #117
San Francisco, CA 94111
(“Nod Notice Address”)
A Notice being sent to you shall be sent to your Nod e-mail account and to any other e-mail address provided in your registration (collectively, “Member Notice Address”). You may also opt to receive a copy of any Notice via mail by sending a written request to the Nod Notice Address including your name, postal address, Member Notice Address and Nod user name.
After receipt of the Notice you and Nod must attempt in good faith to resolve the dispute set forth in the Notice. If you and Nod are not able to resolve the dispute within 30 days after the Notice is received, then you or Nod may initiate an arbitration proceeding against the other by downloading and completing the “American Arbitration Association (“AAA”) Consumer-Related-Disputes Form-California (For Use Only In California)” demand for arbitration form available at (http://www.adr.org/aaa/faces/home) (“Demand”), and sending a copy of the Demand to the AAA, together with a copy of the Nod Terms of Service and a check or money order payable to the AAA in the amount of the appropriate filing fee, and sending a copy of the Demand to the other party. The copy of the Demand being sent to the AAA must be addressed as stated on the Demand. A copy of the Demand being sent to Nod must be addressed to the Nod Notice Address. A copy of the Demand being sent to you shall be addressed to the Member Notice Address.
Please note AAA does not provide Nod customer support and is only able to provide information regarding initiating an arbitration proceeding against Nod. All concerns regarding your account should be addressed to Nod. Nod will try to resolve your concern, and in the case that you are not satisfied with the resolution you may choose to follow the dispute resolutions process outlined on the Dispute Resolution Page[T3] .
Information regarding the appropriate filing fee to send with the Demand to the AAA (including the possible waiver of all or part of that fee) is available at http://www.adr.org/aaa/faces/home, or by calling AAA Customer Service at (800) 778-7879 or AAA Case Filing Services at (877) 495-4185. Note: AAA does not provide Nod customer support and is only able to provide information regarding initiating an arbitration proceeding against Nod. [T4] If you initiate an arbitration proceeding against Nod and are not able to pay all or part of the AAA filing fee (and do not receive a waiver of the unpayable amount), and so long as the total amount of the relief you are seeking in the Demand is $10,000 or less, then you may send a written request for payment of the unpayable amount to Nod at the Nod Notice Address. Nod shall consider your request and will, in its own discretion, either (1) pay the unpayable amount to the AAA directly or (2) send notice to you of its denial of your request within 10 business days of the receipt thereof. Further, if you initiate an arbitration proceeding against Nod, and so long as the total amount of the relief you are seeking in the Demand is $10,000 or less, then you may send proof of your payment of all or part of the AAA filing fee to Nod at the Nod Notice Address, and Nod shall reimburse you for that actually paid amount.
The arbitration shall be administered by the AAA and shall be governed by the AAA Commercial Arbitration Rules and Mediation Procedures and the AAA Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available online at http://www.adr.org/arb_med, or by calling AAA Customer Service at (800) 778-7879. (Additional information about the arbitration process, presented in a simplified FAQ format, is available here. [T5] The arbitrator selected to resolve the dispute between you and Nod shall be bound by the terms of this Agreement. All arbitration hearings shall take place exclusively in San Francisco County, California. Except, however, that if the total amount of the relief you are seeking in the arbitration is $10,000 or less you may choose whether the arbitration shall be conducted solely on the basis of documents submitted to the arbitrator, through a telephone hearing, or by an in-person hearing, as established by the AAA Rules. If the total amount you are seeking is greater than $10,000 then your and Nod’s respective rights to an arbitration hearing shall be determined by 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 any award is based.
In addition to any reimbursement of AAA filing fees as detailed above, and so long as the total amount of the relief you are seeking in the arbitration is $10,000 or less, Nod shall pay all other AAA administration fees and all arbitrator fees for the arbitration. Except, however, that if the arbitrator in such action finds that either the substance of your dispute against Nod or the relief you are seeking 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 AAA filing, administration and arbitrator fees in such action shall be governed by the AAA Rules. In said event, you hereby agree to reimburse Nod for all monies paid by Nod that are your obligation to pay under the AAA Rules. Additionally, if the total amount of the relief you are seeking in the arbitration is greater than $10,000 then the payment of all AAA filing, administration and arbitrator fees shall be governed by the AAA Rules.
You and Nod agree that unless and until the arbitrator determines the monetary and/or other relief, if any, to which you and/or Nod is entitled in connection with the dispute being arbitrated, neither you nor Nod shall disclose to the arbitrator the amount of any settlement offer(s) that you and/or Nod previously made to the other in connection with said dispute. In any individual arbitration between you and Nod, if the arbitrator issues you an award that is greater than the value of Nod’s last written settlement offer to you then Nod shall:
- pay you the amount of the award or $2,500 (the “Member Incentive”), whichever is greater; and
- pay your attorney, if any, twice the amount of any fees, and reimburse said attorney any expenses (including expert witness fees and costs), that said attorney reasonably and actually accrues in investigating, preparing and pursuing your Claim against Nod in the arbitration (collectively, the “Attorney Incentive”).
However, if Nod did not make any written settlement offer to you prior to the arbitrator in said individual arbitration issuing you an award, then so long as the arbitrator awards you any monetary relief on the merits of your Claim against Nod, you and your attorney (if any) shall be entitled to receive the Member Incentive and the Attorney Incentive, respectively. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of any fees and/or expenses, the Member Incentive and/or the Attorney Incentive at any time during the individual arbitration and/or upon request by you and/or Nod made within 14 days of the arbitrator’s ruling on the merits of said individual arbitration. The Attorney Incentive supplements and does not supersede any right you may have under applicable law to receive attorneys’ fees and/or expenses in connection with the individual arbitration (including as may be awarded to you by the arbitrator), but in no event may you recover a duplicative award of attorneys’ fees and/or expenses. If Nod prevails in an individual arbitration against you and is entitled under applicable law to receive attorneys’ fees and/or expenses, Nod hereby agrees that it shall not seek and shall refuse to receive such an award.
The arbitrator may award any form of individual relief in your favor, but solely to the extent warranted by your individual Claim. You and Nod agree that, except as otherwise specifically provided in this Agreement, you and Nod may bring a Claim against the other solely in your or Nod’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, except as otherwise set forth herein, no arbitrator may consolidate more than one person’s Claim and/or otherwise preside over any form of a representative or class proceeding. If all or part of this specific paragraph is found by a court of competent jurisdiction to be unenforceable after final appeal, then the entirety of this Dispute provision shall be deemed null and void.
AT ANY TIME AND IN ITS SOLE DISCRETION NOD MAY DIRECT THE AAA TO CONSOLIDATE ANY AND ALL PENDING INDIVIDUAL ARBITRATION CLAIMS THAT (i) ARISE IN SUBSTANTIAL PART FROM THE SAME AND/OR RELATED TRANSACTIONS, EVENTS AND/OR OCCURRENCES, AND (ii) INVOLVE A COMMON QUESTION OF LAW AND/OR FACT WHICH, IF RESOLVED IN MULTIPLE INDIVIDUAL AND NON-CONSOLIDATED ARBITRATION PROCEEDINGS, MAY RESULT IN CONFLICTING AND/OR INCONSISTENT RESULTS. IN SAID EVENT, YOU HEREBY CONSENT TO CONSOLIDATED ARBITRATION, IN LIEU OF INDIVIDUAL ARBITRATION, OF ANY AND ALL CLAIMS YOU MAY HAVE AGAINST NOD AND THE AAA RULES SET FORTH HEREIN SHALL GOVERN ALL PARTIES. Additionally, in said event, if the arbitrator issues you an award that is greater than the value of Nod’s last written settlement offer to you then Nod shall:
- pay you the amount of the award or three times the amount of Nod’s last written settlement offer to you (the “Consolidated Member Incentive”), whichever is greater; and
- pay your attorney, if any, twice the amount of any fees, and reimburse said attorney any expenses (including expert witness fees and costs), that said attorney reasonably and actually accrues in investigating, preparing and pursuing your Claim against Nod in the arbitration (collectively, the “Consolidated Attorney Incentive”).
However, if Nod did not make any written settlement offer to you prior to the arbitrator in said consolidated arbitration issuing you an award, then so long as the arbitrator awards you any monetary relief on the merits of your Claim against Nod, then you shall be entitled to receive the award and/or $500, whichever is greater, and your attorney (if any) shall be entitled to receive the Consolidated Attorney Incentive. As also noted above, the arbitrator may make rulings and resolve disputes as to the payment and reimbursement of any fees and/or expenses, the Consolidated Member Incentive and/or the Consolidated Attorney Incentive at any time during the consolidated arbitration and/or upon request by you and/or Nod made within 14 days of the arbitrator’s ruling on the merits of said arbitration. Similarly, the Consolidated Attorney Incentive supplements and does not supersede any right you may have under applicable law to receive attorneys’ fees and/or expenses in connection with the consolidated arbitration (including as may be awarded to you by the arbitrator), but in no event may you recover a duplicative award of attorneys’ fees and/or expenses. If Nod prevails in a consolidated arbitration against you and is entitled under applicable law to receive attorneys’ fees and/or expenses, Nod hereby agrees that it shall not seek and shall refuse to receive such an award. If all or part of this specific paragraph is found by a court of competent jurisdiction to be unenforceable after final appeal, then the entirety of this dispute provision shall be deemed null and void.
Notwithstanding any provision in this Agreement to the contrary, you agree that if Nod changes this dispute provision in the future (other than a change to the Nod Notice Address and/or any Internet address, telephone number and/or document title set forth in this provision) you may reject that change by sending written notice within 30 days of the change to Nod at the Nod Notice Address. By rejecting said change you reaffirm that you shall seek to resolve all disputes between you and Nod solely through arbitration in accordance with this Agreement.
If there is a dispute between participants on this Application, or any third party, Nod is under no obligation to become involved. In the event that you have a dispute with one or more Members, you hereby releases Nod and its directors, officers, employees, agents, independent contractors, representatives, parents, subsidiaries, affiliates, successors, assigns and licensees from all claims, actions, losses, liabilities, judgments, damages, costs and expenses of every kind or nature (regardless of whether actual or consequential, known or unknown, suspected or unsuspected, disclosed or undisclosed), arising out of or in any way related to such disputes and/or any the Services. If you are a California resident, you hereby waives California Civil Code Section 1542, which says “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 settlement with the debtor.”
Notwithstanding any of this Agreement, Nod reserves the right, without notice and in its sole discretion, to terminate your license to use the Application or the Services, and to block or prevent your future access to and use of the Application. You may terminate use of the Application or the Services with or without cause at any time and effective immediately upon written notice to Nod. Upon termination, you shall have no right and Nod will have no obligation thereafter to forward any unread or unsent messages to you or any third party. Sections I-S shall survive termination of the Agreement.
O) DISCLAIMERS OF WARRANTIES
MEMBER AGREES THAT USE OF THE APPLICATION AND THE SERVICES IS ENTIRELY AT MEMBER’S OWN RISK. THE APPLICATION AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, NOD DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE APPLICATION AND THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, NOD DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE APPLICATION OR THE SERVICES ACCESSED THROUGH ANY LINKS ON THE APPLICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, NOD DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE APPLICATION OR THE SERVICES. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
P) LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL NOD, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ON ACCOUNT OF MEMBER’S USE OR MISUSE OF THE APPLICATION OR THE SERVICES, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE APPLICATION OR THE SERVICES, FROM INABILITY TO USE THE APPLICATION OR THE SERVICES, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE APPLICATION OR THE SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE APPLICATION OR THE SERVICES OR ANY LINKS ON THE APPLICATION AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE APPLICATION OR THE SERVICES OR ANY LINKS ON THE APPLICATION. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdiction, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
You agree to indemnify and hold harmless Nod, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, and suppliers from any claims and expenses, including reasonable attorney’s fees and court costs, arising from Content that you have posted, stored or otherwise transmitted on or through the Application or your breach of terms of this Agreement.
R) Governing Law
The Agreement and the relationship between you and Nod shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law principles to the contrary. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, you and Nod nevertheless agree that the court should endeavor to give effect to your and Nod’s intentions as reflected in the provision, and the other provisions of the Agreement shall remain unaffected and in full force and effect. You agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to Nod, the Services and/or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Nod makes no representation that any material and/or other content on the Application is appropriate and/or available for use in other locations, and accessing such material and/or content from territories where it is illegal is prohibited. Any persons who choose to access the Application from other locations do so on their own initiative and at their own risk, and are solely responsible for compliance with all applicable laws.
The Agreement constitutes the entire agreement between you and Nod and governs your use of the Application and the Services, superseding any prior agreements between you and Nod. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The failure of Nod to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The section titles in the Agreement are for convenience only and have no legal or contractual effect. In the event there is a discrepancy between this English language version and any translated copies of this Agreement, the English version shall prevail. ###Contacting Nod Users with questions about this Terms of Service and any of the aforementioned statements may contact Nod, 110 Pacific Ave Mall, Box #117, San Francisco, CA 94111.
Effective Date July 1, 2015