Near Me, Inc. Terms of Service
THIS TERMS OF SERVICE (THE "AGREEMENT") GOVERN YOUR EVALUATION OF THE SERVICES, AND, IF YOU PURCHASE SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING OR ELECTRONICALLY ACCEPTING A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOU MAY NOT ACCESS THE SERVICES OR ACCEPT THIS AGREEMENT IF YOU ARE A DIRECT COMPETITOR OF NEAR ME. ADDITIONALLY, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
This Agreement was last updated on March 31, 2015. It is effective between You and Near Me as of the date You accept this Agreement, or upon an update of this Agreement by Near Me in accordance with the terms set forth herein (the "Effective Date").You
Section 1. Definitions
In addition to terms defined elsewhere in this Agreement, whenever used in this Agreement with the initial letter capitalized, the following terms will have the following specified meanings:
“ Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Your Data” means all electronic data or information submitted or uploaded by You in connection with the Services.
“Documentation” means Near Me’s user manuals or other training documentation regarding the Services, accessible within the Near Me website at http://www.Near-Me.com (or successor location), as may be updated by Near Me from time to time.
“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, or the like.
“Statement of Work means the ordering documents for Your purchase of subscriptions to the Services hereunder, including addenda thereto, that are signed or electronically delivered by You and accepted by Near Me from time to time. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means access or subscriptions to the Services that You or a permitted Affiliate purchases under a Statement of Work.
“Purchased Services Term” means the subscription term for the Purchased Services specified in an Order Form.
“Services” means Near Me’s online, web-based and mobile applications and marketplace platform provided via the website http://www.Near-Me.com, and/or other designated websites as described in the Documentation, that are ordered by You as Purchased Services under a Statement of Work.
“Users” means Your authorized users identified by You and stated in an Statement of Work for whom You have purchased subscriptions to the Services. Users may be Your employees or contractors authorized by You to access the Services for internal purposes.
Section 2. License, Users and Order Forms
2.1 Purchased Services Term License. During the Purchased Services Term, subject to the terms and conditions of this Agreement, the applicable Statement of Work and Your payment of Fees (defined in Section 4.1), Near Me hereby grants to You a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to: (a) access and use the Services; and (b) use and reproduce the Documentation for internal purposes only.
2.2 Users. Unless otherwise specified in the applicable Order Form: (a) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users in an Statement of Work and (b) additional User subscriptions may be added by You via the Services, pursuant to the terms of, and at the Fees specified in, the Order Form. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned by You via the Services to new Users replacing former Users who no longer require ongoing use of the Services.
2.3 Restrictions. You will not: (a) make the Services available to any third party other than designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of the Services; (c) decompile, reverse engineer or reverse assemble any portion of the Services, or attempt to discover any source code or underlying ideas or algorithms of the Services; (d) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the Services to store or transmit material in violation of third party privacy rights; (f) transmit unsolicited commercial or non-commercial email via the Services; (g) use the Services to store or transmit Malicious Code; (h) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (i) attempt to gain unauthorized access to the Services or their related systems or networks; or (j) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Documentation. The Documentation may include additional restrictions or limitations to the use of the Services, including, without limitation, limitations on storage space in the Services, and You agree to comply with any such restrictions or limitations. Near Me reserves the right to immediately suspend Your access to and use of the Services if Near Me determines, in its reasonable discretion, that You have engaged in any of the activities set forth in this Section 2.3 (each a “Restriction Violation”). Near Me shall provide notice of such suspension to You (via the Services or otherwise) and, where practicable, the parties shall thereafter work together in good faith to resolve such Restriction Violation. In the event the Restriction Violation cannot be cured within a reasonable period of time after Near Me’s notification, Near Me reserves the right to immediately terminate this Agreement and any Order Forms then in effect.
2.4 Statement of Work. In the event that Near Me has issued a Statement of Work for Services, the Statement of Work may be modified only by mutual written agreement of the parties.
Section 3. Additional Obligations
3.1 By Near Me. During the Purchased Services Term, Near Me will: (a) provide to You basic support for the Purchased Services at no additional charge; and (b) use commercially reasonable efforts to ensure the Purchased Services are available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime for the Services (of which Near Me will use commercially reasonable efforts to give at least eight (8) hours’ notice via the Purchased Services); or (ii) any unavailability of the Services caused by circumstances beyond Near Me’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Near Me’s employees), or Internet-service-provider failures or delays.
3.2 By You. You will: (a) be responsible for all Users’ compliance with this Agreement; (b) be solely responsible for the accuracy, quality, integrity and legality of the Your Data and of the means by which You acquired the Your Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Near Me promptly of any such unauthorized access or use; (d) be responsible for any third party products or services used or exchanged by You in connection with the Services or any Your Data; (e) be responsible for ensuring that all Your computer systems, technology or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services; and (f) use the Services only in accordance with the Documentation and all applicable laws, regulations, rules, orders and other requirements of any applicable international, federal, state or local governmental authority (“Laws”). You understand and acknowledge that: (i) Near Me has no obligation to review Your content or Your Data; and (ii) You are solely responsible for the creation, initiation and sending of messages via the Services, including, but not limited to, the content, recipients, and timing of such messages.
Section 4. Fees and Payment
4.1 Fees. You will be charged an initial flat fee for the setup and access to the Services. During the Purchased Services Term, You will be charged monthly fees specified in an applicable Statement of Work (“Fees”). Except as otherwise specified herein or in an Order Form: (a) Fees are quoted and payable in United States dollars; (b) Fees are based on Purchased Services purchased and not actual usage; and (c) payment obligations are non-cancelable and Fees paid are non-refundable.
4.2 Fee Increases. Near Me, in its discretion, reserves the right to increase Fees for Services at any time, provided that (i) Near Me will not increase the Fees during the initial Purchased Services Term stated in an Order Form; and (ii) Near Me will not increase Fees for any renewal Purchased Services Term unless Near Me provides You with written notice of such increase in the Fees or unless the Fees in such prior period were designated in the applicable Statement of Work as promotional or one-time. You acknowledge that Near Me may, from time to time, add additional features or functionality to the Services, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees.
4.3 Payments. You will pay Fees via credit card or by other means specified by Near Me in an applicable Order Form. If You are making payments for Fees via credit card, You will provide accurate payment information, and You hereby authorize Near Me to charge such credit card for all Fees in an applicable Statement of Work for the initial Purchased Services Term and any renewal thereof. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Statement of Work. For payment of Fees by any other method, Near Me will invoice You in advance of the provision of applicable Services and otherwise in accordance with the relevant Statement of Work. All setup fees are due and payable to begin work on a marketplace and to hand off the marketplace to the client. All payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. The monthly service fee will begin billing at the time that Near Me delivers the Your marketplace dashboard. If Near Me has not received payment of Fees by the applicable due date on an invoice, then Near Me may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) terminate the Services without notice. If You have elected to pay Fees via credit card and the credit card is charged back to Near Me or if any Fees invoiced to You are not paid within thirty (30) days of invoice, Near Me may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your Services until payment is made; and/or (iv) immediately terminate the applicable Statement of Work for which Fees were due and/or terminate this Agreement.
4.4 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes (except those based on Near Me’s income) associated with the Purchased Services purchased hereunder, and will pay, indemnify and hold Near Me harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest.
Section 5. Proprietary Rights
5.1 Ownership. As between the parties and subject to the license grants under this Agreement, (a) Near Me owns all right, title and interest in and to the Services, the Documentation and any and all Intellectual Property Rights embodied therein; and (b) You own all right, title and interest in and to all Your Data uploaded to the Services and any and all Intellectual Property Rights embodied therein. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by Near Me to You under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
Section 6. Confidentiality
6.1 Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms of this Agreement as well as components of the business plans, inventions, product plans, design plans, financial plans, computer programs, know-how, Your information, strategies, marketing plans, technology and technical information, business processes and other similar information. Without limiting the foregoing, Near Me’s Confidential Information includes the Services and the Documentation. Confidential Information does not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by You to Near Me with respect to Near Me or the Services (collectively, ”Feedback”) will constitute Near Me’s Confidential Information. Further, Near Me will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6.2 Compelled Disclosure. Notwithstanding Section 6.1, the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled to do so by Law or in connection with other legal proceedings involving the Disclosing Party, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party a reasonable opportunity to prevent such disclosure. If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. In the event Near Me is obligated to respond to a third party subpoena or other compulsory legal order or process with respect to any of Your Data, You will promptly reimburse Near Me for all reasonable attorneys' fees, as well as employees' time and materials, at Near Me's then-current hourly rates, incurred in connection with such response.
6.3 Security of Your Data. Near Me shall use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Near Me shall not: (a) modify or access Your Data except as necessary to provide the Services, prevent or resolve service or technical problems, or at Your request in connection with Your-support matters; or (b) disclose Your Data except as compelled by Law or other legal proceedings in accordance with Section 6.2, or as expressly permitted in writing by You.
6.4 Security of Passwords. You are solely responsible for all activities that occur in Your account or Your User’s account(s) and for the security of Your passwords and Your User’s passwords. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEAR ME HAS NO LIABILITY OF ANY KIND (WHETHER BY CONTRACT, TORT OR OTHERWISE) FOR ANY UNAUTHORIZED ACCESS TO YOU OR YOUR USERS’ ACCOUNT AS A RESULT OF YOU OR YOUR USERS ACTIONS OR INACTIONS.
Section 7. Representations and Warranties
7.1 Near Me Warranties. Near Me warrants that it has the legal power to enter into this Agreement, and doing so will not violate any other agreement to which Near Me is a party. Near Me further warrants that: (a) the Services shall perform materially in accordance with the Documentation; and (b) the functionality of the Services will not be materially decreased during a Purchased Services Term. Your sole and exclusive remedy for any breach of the foregoing is to terminate the applicable Statement of Work and/or this Agreement; provided that You first provide Near Me with timely written notice of, and a reasonable opportunity to cure, such breach, prior to any such termination.
7.2 Your Warranties. You warrant that: (a) You have the legal power to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You will not transmit any Malicious Code in connection with the Services; (c) You have the right and authority and have obtained all necessary consents required to use Your Data and any other content or data used in connection with the Services; (d) any of Your Data or other data or content used by You in connection with the Services shall not infringe the Intellectual Property Rights of any third party; and (e) You will comply with all applicable Laws in Your performance of this Agreement, including, without limitation, Laws relating to: (i) individual privacy or the distribution of email and other one-to-one digital messages (including, without limitation, the CAN-SPAM Act of 2003 and any rules adopted under such act); (ii) the recording of communications, including, where required, advising all participants in a recorded meeting or event via the Services that the meeting or event is being recorded; and (iii) the use of voice-over IP telephony services.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, NEAR ME DOES NOT MAKE ANY WARRANTIES THAT (A) THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS; OR (B) THE SERVICES ARE NONINFRINGING. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE EVALUATION TERM THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Section 8. Indemnity
By You. You will defend, indemnify and hold Near Me and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys' fees) (collectively, "Claims") arising out of or relating to: (a) You, Your Affiliates’ or Your Users’ breach of this Agreement or any representation or warranty made by You herein; (b) You or Your Affiliates’ or Your Users’ negligence or willful misconduct; (c) Your Data; or (d) any violation of any Law by You, Your Affiliate or a User.
8.2. Procedure. With respect to Your indemnity obligations arising pursuant to Section 8.1, Near Me shall promptly notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay. Near Me shall reasonably cooperate with You in the defense of such Claim at Near Me's expense. Near Me may participate in the defense at its option and expense; provided that You shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of Near Me, including any settlement that includes (a) admission of liability or wrongdoing by Near Me; (b) payment of any amounts not covered by Your indemnity obligations; (c) actions that affect Near Me's Intellectual Property Rights, may be made without the express written consent of Near Me, which may be withheld in the sole discretion of Near Me; and provided further provided that in conducting such defense or settling such claim or action, You shall not disclose or use in an improper or manner not authorized under this Agreement the Confidential Information of Near Me without Near Me's prior written consent.
Section 9. Limitations of Liability
9.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL NEAR ME BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF NEAR ME HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU AGREE THAT THE CONSIDERATION WHICH NEAR ME IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY NEAR ME OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
9.2 Limitation of Liability. IN NO EVENT WILL NEAR ME’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE aggregate of the amounts paid by You to NEAR ME DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO YOU, AND THAT, WERE NEAR ME TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
Section 10. Term and Termination
10.1 Term of Agreement. The term of this Agreement will commence on the Effective Date and, unless earlier terminated, will continue for the duration of any Purchased Services Term in an applicable Statement of Work. Except as otherwise specified in the applicable Statement of Work, all Purchased Services Terms shall automatically renew for additional periods equal in duration to the expiring Purchased Services Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Purchased Services Term.
10.2 Termination. Either party may terminate this Agreement or any individual Statement of Workas follows: (a) for cause if the other party breaches this Agreement or an Statement of Work and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority; or (c) in the case of Near Me, immediately if You do not pay the Fees when due as described in Section 4.
10.3 Transition of Your Data. For a period of sixty (60) days following termination or expiration of this Agreement, You may retrieve Your Data from the Services and Near Me will provide You with reasonable post-termination data retrieval assistance. Notwithstanding the foregoing, Near Me reserves the right to retain in perpetuity data relating to You and Your Users’ use of the Services.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Services shall cease, and Near Me shall have no further obligation to make the Services available to You; (b) except as otherwise expressly stated herein, all rights and licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 10.3, Near Me will have no obligation with respect to any Your Data; and (d) You will pay any unpaid Fees payable for the remainder of the Purchased Services Term under any applicable Statement of Workin effect prior to the termination date.
10.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.1 (Evaluation Term License, for the duration of any transition to a Purchased Service Term), 2.4 (Restrictions), 4 (Fees and Payment), 5 (Proprietary Rights), 6.1 (Confidential Information), 6.2 (Compelled Disclosure), 7 (Representations and Warranties), 8 (Indemnity), 9 (Limitations of Liability) 10.3 (Transition of Your Data, for the duration therein), 10.5 (Survival) and 12 (Miscellaneous).
Section 11. Publicity
11.1 Publicity. During the Purchased Services Term, You hereby agrees that Near Me may reference You and Your use of the Services in private customer and prospect communications, and on Near Me’s website. You also agree that Near Me may reference You and Your use of Services in marketing and public relations materials, including a press release announcing You as a new customer and the inclusion of You as a customer in Near Me’s company boilerplate. Near Me may also offer Your participation in media interviews with Your prior approval to be provided to media as a media reference. You hereby grant Near Me a nonexclusive, worldwide license, during the Purchased Services Term, to use and display Your trademarks, trade names and logos (“Marks”) in connection with the foregoing uses.
Section 12. Miscellaneous
12.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
12.2 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by confirmed email or confirmed facsimile (except that neither email nor facsimile shall be deemed sufficient for notices of breach, termination, or an indemnifiable claim); or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address in the signature block below or at such other address as may hereafter be furnished in accordance with this Section.
12.3 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles. The parties irrevocably consent to the jurisdiction of the state and federal courts in San Francisco County, California for the resolution of any disputes or conflicts arising out of or related to this Agreement.
12.4 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You (including to Your Affiliate), by operation of law or otherwise, without the prior written consent of Near Me. This Agreement may be assigned or transferred by Near Me without consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.5 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.
12.6 Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner which ensures that all transactions contemplated hereby are fulfilled.
12.7 No Waiver. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.8 DMCA and Intellectual Property Rights Policy. If You believe that material on a Near Me hosted website or located on or sent via a Near Me product infringes Your copyright or other Intellectual Property Right (for example, trademark rights), You may send us a written notice. Near Me will attempt to remove or disable the allegedly infringing material. Near Me will also attempt to notify the user who posted or uploaded the allegedly infringing material. Your written notice shall contain the following details:
(a) Your name, mailing address, telephone number and email address;
(b) Sufficient detail about the allegedly infringing material, including the Intellectual Property Right You allege is being infringed;
(c) The URL or other specific location on our websites or product that contains the material that You claim infringes Your Intellectual Property Right;
(d) A statement by You that You have a good faith belief that the disputed use is not authorized by the Intellectual Property Right owner, its agent, or the law;
(e) A statement by You that the information contained in Your notice is accurate and that You attest under the penalty of perjury that You are the owner of the Intellectual Property Right or that You are authorized to act on the such owner's behalf;
(f) An electronic or physical signature of the owner of the Intellectual Property Right or a person authorized to act on the owner's behalf.
Your notice can be sent to our registered copyright agent at the following: (i) Near Me, Inc., 185 Clara Street, San Francisco, CA, 94107; (ii) via email to [email protected] (include “DMCA Complaint” in the subject line). ; or (iii) via facsimile to (include “DMCA Complaint” on the cover sheet). Upon receipt of proper written notice, Near Me will expeditiously remove or disable the allegedly infringing material, regardless of the nature of the material (a post, a webpage, or presentation slide, for example). Near Me will document those alleged infringements on which we act. Near Me will additionally notify the user and, if requested, provide the report to the user.
12.9 Entire Agreement; Updates and Revisions;; Counterparts. This Agreement, together with each Order Form, is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written. Near Me may update or revise this Agreement from time to time in its sole discretion, and Near Me recommends that You review this Agreement on a regular basis. The most current version will be posted on the website located at http://www.nearme.com. Your continued use of the Services after any update or revision to this Agreement constitutes Your acceptance of the Agreement updates or revisions. Order Forms governed by this Agreement may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Order Form.