1. Acceptance of Terms of Service. These Terms of Service (“Terms of Service”) constitute a legally binding agreement made between you, whether personally or on behalf of an entity or corporation (“you”) and Nectarine Capital Inc., doing business as Nectarine Credit ("Nectarine", “we”, “us”, or “our”), and govern your access to and use of the service(s) provided through Nectarine’s website, http://www.nectarinecredit.com (the “Site”), and all other web applications and other online and offline services referencing these Terms of Service, and all content and functionality associated therewith, including without limitation, the Nectarine credit service (the “Nectarine Credit Service”) (collectively, the “Service”).
Please read these Terms of Service carefully before you start to use the Service. By using the Service or by clicking to accept or agree to these Terms of Service when this option is made available to you, you accept and agree to be bound by f these Terms of Service and our Privacy Notice. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
The Service is offered and available to users who are eighteen (18) years of age or older. If you are not at least eighteen (18), you must not access or use the Service.
2. Service Features, Functionality and Availability. You may use the Service when and as available. Although we generally intend for the Service to be available on an uninterrupted basis, it will not always be available (e.g., during maintenance, changes, outages and for other reasons). We further reserve the right to change, modify, eliminate and/or restrict or block access to all or any part of the Service, including any features or content displayed or made available through the Service, from time to time with or without notice to you, in our sole and absolute discretion. We will not be liable to you if for any reason all or any part of the Service is unavailable at any time for any period.
3. Intellectual Property Rights.
(a) Nectarine Content. The Service and all data, products, content, features and functionality thereof (including but not limited to, all information, user interfaces, software, text, displays, images, and the design, selection and arrangement thereof) (collectively, the “Nectarine Content”), are owned by Nectarine, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You may not commercially exploit or make the Service available to any third party. You must not reproduce, distribute, modify, create derivative works of, re-engineer, publicly display, publicly perform, republish, download, store or transmit any of the material on the Service, except as authorized by these Terms of Service. No right, title or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Nectarine. Some Nectarine Content may also be subject to further terms and conditions provided in connection with the particular Nectarine Content and you agree to comply with any such further terms and conditions. Any use of the Nectarine Content other than as set forth in these Terms of Service may result in the immediate suspension or termination of your access to all or part of the Service.
(b) Your Content.
(1) Certain features or functions of the Service may permit the uploading, posting, storage, viewing or transmittal of text, information, and content (collectively, “Your Content”). You retain ownership of any of Your Content posted or transmitted to or through the Service, but in order for us to provide you the Service, you must grant certain rights to Nectarine to use Your Content. Accordingly, subject to any restrictions or limitations set forth in these Terms of Service, you hereby grant to Nectarine and its designees, a royalty-free, fully paid, non-exclusive license to post, store, use and transmit any and all of Your Content in connection with: (i) Nectarine’s maintenance, operation, and provision of the Service; (ii) the operation of Nectarine’s business, including its development and design of any products or services; and (iii) the creation of Systems Data. You are solely responsible for any and all of Your Content uploaded and/or transmitted in and/or through the Service.
(2) You represent and warrant to Nectarine that: (i) you own Your Content or otherwise have sufficient rights in Your Content to grant the license rights granted to Nectarine in this Section; (ii) Your Content does not, and its use by Nectarine as contemplated in these Terms of Service will not, violate, infringe, or misappropriate the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party, or breach or violate any obligation of confidentiality owed to any third party; (iii) your uploading, posting, storage, viewing or transmittal of Your Content to or through the Service will not violate any Laws; and (iv) there are no claims currently pending or threatened, and you have not engaged in any acts or omissions likely to result in any such claims, as to: (a) your ownership of, use of, or rights in Your Content; (b) your violation, infringement or misappropriation of any third party intellectual property rights, publicity or privacy rights, or other proprietary rights with respect to Your Content; (c) your violation or breach of any obligation of confidentiality owed to any third party with respect to Your Content; or (d) the violation by Your Content of any Laws.
(3) Nectarine reserves the right to refuse to post or transmit any of Your Content. Furthermore, in the event that Nectarine discovers or has reason to believe that Your Content is in violation of these Terms of Service, including without limitation, this Section 3(b) and/or Section 9 below, Nectarine may, without limiting its rights or creating any liability therefor, immediately remove Your Content from the Service, and may further block and/or restrict your access thereto pending resolution of any such violation.
(4) You are responsible for keeping appropriate copies and records of Your Content. Nectarine has no obligation to back-up or maintain Your Content, and Nectarine takes no responsibility and assumes no liability for Your Content, including without limitation any loss or damage thereto.
(c) Systems Data. You acknowledge and agree that all Systems Data is and shall remain the sole and exclusive property of Nectarine. For purposes of clarity, Nectarine may make any legal use of the Systems Data without notifying you or sharing such Systems Data with you. Specifically, by way of illustration and not by way of limitation, Nectarine may publish and share Systems Data with others in aggregate or statistical form to promote the Service and/or Nectarine’s products or services, for evaluating the efficiency, utility and functionality of the Service and/or Nectarine’s other products or services, and for enhancing and improving the Service and Nectarine’s other products or services. For purposes of these Terms of Use, “Systems Data” means all data, content and information regarding your use of the Service in the nature of de-identified or aggregate systems administrative data, statistical and demographical data, operational information, and data generated by or characterizing the use of the Service, including without limitation, any de-identified or aggregate Your Content.
(d) Feedback. Any comments, feedback, suggestions, or ideas (“Feedback”) you provide through the Service may be used by Nectarine. While you may continue to own all such the Feedback, you hereby grant to Nectarine a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback.
4. Disclaimer. YOU AGREE THAT THE SERVICE AND ALL NECTARINE CONTENT IS PROVIDED BY US OR ANY OF OUR EXISTING OR FUTURE VENDORS, AFFILIATES OR AGENTS “AS IS” AND “WITH ALL FAULTS,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. NECTARINE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL SUCH REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, ACCURACY, COMPLETENESS, PRIVACY OR SECURITY AND ANY IMPLIED WARRANTIES CREATED BY TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE FURTHER DISCLAIM ALL DUTIES TO YOU, IF ANY SUCH DUTIES EXIST, INCLUDING BUT NOT LIMITED TO GOOD FAITH AND FAIR DEALING, REASONABLE CARE, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. IF A DUTY CANNOT BE DISCLAIMED, YOU AGREE THAT THE STANDARD USED TO MEASURE NECTARINE’S PERFORMANCE OF THAT DUTY WILL BE INTENTIONAL MISCONDUCT. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ANY ASPECT OF THE SERVICE OR AGAINST INFRINGEMENT. YOU EXPRESSLY WAIVE ALL DUTIES, CONDITIONS AND ALL WARRANTIES THAT MIGHT EXIST BUT FOR THIS SECTION. ALL RISK IN CONNECTION WITH THE USE OF THE SERVICE AND/OR ANY NECTARINE CONTENT IS WITH YOU.
5. Accessing the Service and Account Security.
(a) You are responsible for: (i) making all arrangements necessary for you to have access to the Service, including without limitation, your Internet connection; and (ii) ensuring that all persons who access the Service through your Internet connection are aware of these Terms of Service and comply with them.
(b) You may browse certain pages of the Service without registering as a user (a “User”). However, for complete access to the Service, including without limitation, the Nectarine Credit Service, you will be required to register as a User. It is a condition of your use of the Service that all the information you provide as part of registering as a User or in connection with your use of the Service is accurate, current and complete.
(c) You agree to keep your password confidential and will be responsible for all use of your account and password. You also acknowledge that your account is personal to you and you agree not to provide any other person with access to the Service or portions of it using your User name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your User name or password or any other breach of security. You also agree to ensure that you exit from your User account at the end of each session. We reserve the right to remove, reclaim, or change a User name you select if we determine, in our sole discretion, that such User name is inappropriate, obscene, or otherwise objectionable.
6. No Reliance; No Offer or Advice. Nectarine makes no representation or warranty that the information on the Service is accurate, reliable, up-to-date or complete. Neither Nectarine nor any third party can guarantee the accuracy of the information. The Service is provided for informational purposes only and does not constitute and should not be construed as a solicitation or offer, or recommendation to acquire or dispose of any investment or to engage in any other transaction whatsoever. Nothing in the Service constitutes, nor should it be construed as, financial, investment, legal, tax or other advice of any nature whatsoever and it should not be relied on in making any financial or other decision. You should obtain relevant and specific independent professional advice before making any financial or other decision. You hereby agree that you will not hold Nectarine responsible at law or in equity for any decisions of whatever nature you make or refrain from making in connection with your use of the Service.
7. Fees and Payments.
(a) Nectarine may provide certain paid or free services associated with the use of the Service, in its sole discretion. When your use of the Service requires the payment of a fee: (i) we may change prices at any time, in our sole and absolute discretion; and (ii) you will have the opportunity to review and accept the fees that you will be charged. If you do not agree to pay the fee, do not proceed with your transaction. Unless otherwise stated, all fees are quoted in, and all payments shall be made in, U.S. dollars. Sales tax will be added to the price of purchases as deemed required by us.
(b) You agree to pay all charges or fees associated with your use of the Service in a timely manner at the prices then in effect using a valid payment method. You authorize us to charge your chosen payment method for any such amounts at the time of your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. Except as expressly set forth in these Terms of Service, Nectarine does not provide refunds.
(c) You agree at all times to keep your payment information current and complete. In particular, you agree to promptly update your account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. This includes charging other payment methods on file with us, or retaining collection agencies and legal counsel, in our discretion
(d) We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We reserve the right to refuse to accept any payment you make in connection with your use of the Service.
8. Nectarine Credit Service Terms.
(a) If you have registered as a User and have purchased or been granted the right to access and use the Nectarine Credit Service (“Usage Rights”), Nectarine hereby grants to you, subject to the Usage Rights you have purchased or obtained from Nectarine, a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Nectarine Credit Service for your internal, informational use only.
(b) You may only access and/or use the Nectarine Credit Service within the scope of your Usage Rights. For example, certain Usage Rights may be limited to the use of the Nectarine Credit Service by a single user or multiple single users, or impose other prohibitions or restrictions on your use of the Nectarine Credit Service. It is your obligation to know and understand the scope and extent of your Usage Rights. If you exceed the scope of your Usage Rights, you agree: (i) that Nectarine may invoice you for the additional fees commensurate with any such unauthorized use; (ii) that you will pay such invoice within thirty (30) days of your receipt of the invoice; and (iii) that such remedy is not exclusive of the other remedies available to Nectarine in connection with such unauthorized use.
(c) The Nectarine Credit Service is a software as a service platform that allows: (i) credit seekers (“Credit Seeker(s)”) to submit credit applications to prospective credit providers (“Credit Provider(s)”) over the Internet; and (ii) prospective Credit Providers to manage and approve third-party credit applications over the Internet. Credit Seekers and Credit Providers hereby agree as follows:
(1) While the Nectarine Credit Service provides a form credit application for use by Credit Providers (the “Form Application”), each Credit Provider acknowledges and agrees that: (i) the Form Application is a form only, has not been customized for any particular Credit Provider, and may not be suitable for a Credit Provider’s individual needs or requirements; and (ii) the Form Application is subject to ultimate review and approval by the Credit Provider; and may be modified, changed or amended by the Credit Provider based on each Credit Provider’s individual needs or requirements. Accordingly, Nectarine is not responsible for, and shall have no liability to you or to any third party or User in connection with, the accuracy, sufficiency or legality of the Form Application, or any modifications, changes or alterations by a Credit Provider to the Form Application. Each Credit Provider acknowledges and agrees that it is solely responsible for the content of the Form Application and for ensuring that the Form Application meets the Credit Provider’s individual needs and requirements.
(2) In using the Nectarine Credit Service, Credit Seekers will be required to provide information to the applicable Credit Provider so as to enable the Credit Provider to determine whether to approve or deny credit to the Credit Seeker (“Credit Information”). Each Credit Seeker represents and warrants that: (i) the Credit Information disclosed by the Credit Seeker to the Credit Provider will be truthful, accurate and complete, to the best of the Credit Seeker’s knowledge and belief; (ii) the Credit Seeker owns the Credit Information disclosed or otherwise has all necessary rights, permissions and consents to disclose the Credit Information to the Credit Provider; and (iii) the Credit Information disclosed by the Credit Seeker does not, and the disclosure of such Credit Information to the Credit Provider using the Services will not, infringe, misappropriate, or violate the intellectual property rights or other proprietary rights of any third party. Each Credit Provider expressly acknowledges and agrees that Nectarine does not ensure or verify the accuracy, sufficiency or legality of any Credit Information, and shall have no liability to any Credit Provider or to any third party in connection with any such Credit Information, including without limitation, any credit or other decision(s) made by the Credit Provider based on such Credit Information.
(3) The Nectarine Credit Service will display content and information in a manner that is based on inputs, criteria, selections, and information entered by the Credit Provider or the Credit Seeker (collectively, “User Inputs”). Nectarine does not ensure, and is not responsible for ensuring, the accuracy, sufficiency, or legality of any User Inputs, and consequently: (i) any and all content or information produced or generated by the Nectarine Credit Service in response to or as a result of any User Inputs; and (ii) any and all credit or other decisions made as a result of any User Inputs. Nectarine shall have no responsibility for, and shall have no liability to you in connection with, any User Inputs, or for any content or information generated or displayed by the Nectarine Credit Service as a result of any User Inputs.
(4) You acknowledge and agree that the Nectarine Credit Service and any information or content displayed thereon is provided for informational purposes only. Nectarine does not warrant or guarantee the completeness, legality, correctness, accuracy, or timeliness of the Nectarine Credit Service or any information or content displayed thereon. Nectarine does not provide financial or investment services or advice and you acknowledge and agree that: (i) neither the Nectarine Credit Service nor any associated information or content constitutes financial or investment services or advice; and (ii) you will not rely on the Nectarine Credit Service or any associated information or content for making any financial or investment decisions. If you are using the Nectarine Credit Service or any associated information or content for purposes of making financial or investment decisions, then you do so at your own risk, and you agree to use your own independent skill, experience, knowledge and professional judgment in doing so. You acknowledge and agree that nothing in the Nectarine Credit Service or any associated information or content is deemed to constitute: (a) information that specifically addresses any specific individual’s financial objectives, financial situation, or the particular needs of any specific person who uses the Nectarine Credit Service and/or accesses any associated information or content; or (b) the establishment of an advisory, broker, or fiduciary relationship.
(5) Nectarine does not make or assist Credit Providers in making any decisions with respect to approving or denying credit to any Credit Seeker. Rather, any decision to approve or deny credit to a Credit Seeker is made solely by the Credit Provider, in its sole and absolute discretion. Each Credit Provider is solely responsible for compliance with any and all Laws in connection with approving or denying credit to any Credit Seeker, including without limitation, the U.S. federal Equal Credit Opportunity Act, the U.S. federal Fair Credit Reporting Act, the U.S. federal Fair Debt Collection Practices Act, the U.S. federal Truth in Lending Act, or any other national, state, provincial, local or other laws governing the provision of credit (“Credit Laws”). Each Credit Provider agrees to comply with any and all such Credit Laws to the extent applicable to such Credit Provider hereunder.
(6) Users are solely responsible for their interactions with other Users, including without limitation, interactions between Credit Seekers and Credit Providers. While Nectarine has the right, but not the obligation, to monitor disputes between a Credit Seeker and a Credit Provider, Nectarine shall have no liability whatsoever with respect to such disputes. In the event of a dispute between a Credit Seeker and a Credit Provider, that dispute is solely between the applicable Credit Seeker and Credit Provider, and does not involve or implicate Nectarine or the Nectarine Credit Service, and Nectarine shall have no liability with respect such dispute.
(d) We may offer a free version of the Nectarine Credit Service (the “Demo Service”) for use for a designated trial period (the “Trial Period”). Users who elect to use the Demo Service will be charged a subscription at the end of the Trial Period or when the user surpasses the allotted use of features and services, including but not limited to the number of monthly credit checks and applications for its customers. In the event you elect to try the Demo Service, you acknowledge and agrees that Nectarine makes no representations or warranties of any kind in connection with the Demo Service, and shall have no liability of any kind to you with respect to your use of the Demo Service. Rather, all risk associated with the use of the Demo Service is solely with you.
9. Your Conduct. You may use the Service only for lawful purposes in accordance with the terms and conditions of these Terms of Service. Except as expressly permitted in these Terms of Service, you agree not to:
(a) Make any unauthorized use of the Service, including collecting user names and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
(b) Circumvent, disable, or otherwise interfere with security-related features of the Service, including features that prevent or restrict the use or copying of any Nectarine Content or enforce limitations on the use of the Service and/or the Nectarine Content.
(c) Engage in unauthorized framing of or linking to the Service.
(d) Trick, defraud, or mislead Nectarine and other users, especially in any attempt to learn sensitive account information such as user passwords.
(e) Make improper use of Nectarine’s support services or submit false reports of abuse or misconduct.
(f) Engage in any automated use of the Service, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
(g) Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Nectarine.
(h) Interfere with, disrupt, or create an undue burden on the Service or the networks or services associated with the Service.
(i) Attempt to impersonate another user or person or use the user name of another User.
(j) Sell or otherwise transfer your User account.
(k) Use any information obtained from the Service in order to harass, abuse, or harm another person.
(l) Use the Service as part of any effort to compete with Nectarine or otherwise use the Service and/or the Nectarine Content for any revenue-generating endeavor or commercial enterprise.
(m) Translate, decipher, decompile, disassemble, discover, modify, re-engineer, or reverse engineer the Service, any Nectarine Content, or any Nectarine software.
(n) Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Service to you.
(o) Delete the copyright or other proprietary rights notice from the Service or any Nectarine Content accessible via the Service.
(p) Copy or adapt the Service’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
(q) Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Service or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Service.
(r) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
(s) Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Service, or using or launching any unauthorized script or other software.
(t) Disparage, tarnish, or otherwise harm, in Nectarine’s reasonable, good faith opinion, Nectarine and/or the Service.
(u) Use the Service in a manner inconsistent with or in violation of any Laws. For purposes of these Terms of Service, “Law(s)” means applicable federal, national, international, state and local laws, statutes, rules, regulations and ordinances, including any judgment or order of any court or governmental authority, and specifically includes, without limitation, all applicable anti-bribery and anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010, and all applicable privacy and data protection laws.
(v) Use the Service and/or any Nectarine Content in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party.
10. Third-Party Websites, Materials and Content.
(a) The Service may link to other websites. These links may be provided by Nectarine as a convenience to you. If you deal with a linked site, your transaction is not with Nectarine so you should review the linked site’s “terms of use,” other contract(s) and/or privacy notice before completing your transaction.
(b) Nectarine may further use third party services, software or applications in making available the Service to you. You agree to comply with any and all third party license terms, terms of use, or terms of service applicable to any such third party service, software or applications, and shall not take or fail to take any act that would cause Nectarine to be in breach or violation of any such third party license terms, terms of use, or terms of service. You further acknowledge and agree that Nectarine shall not be responsible for, and shall have no liability to you in connection with, the unavailability, failure of, or your inability to use, any such third party service, software or applications.
(c) The Service may display or make available, and the Nectarine Content may include, third party content (including data, information, and/or materials) (collectively, “Third Party Materials”). You acknowledge and agree that Nectarine is not responsible for the Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Nectarine does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials.
(d) You acknowledge and agree that Nectarine’s: (i) linking to any third party website; (ii) using any third party services, software or applications; or (iii) providing any Third Party Materials, does not constitute or imply an endorsement by Nectarine of the third party provider. The providers of any third party services, software or applications or Third Party Materials may be third party beneficiaries of these Terms of Service having the right to enforce these Terms of Service in accordance with its terms.
11. Site Management, Monitoring and Enforcement.
(a) We reserve the right, but not the obligation, to: (i) monitor the Service for violations of these Terms of Service; (ii) take appropriate legal action against anyone who, in our sole discretion, violates any Laws or these Terms of Service, including without limitation, reporting such user to law enforcement authorities; (iii) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of Your Content or any portion thereof; (iv) in our sole discretion and without limitation, notice, or liability, to remove from the Service or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (v) otherwise manage the Service in a manner designed to protect our rights and property and to facilitate the proper functioning of the Service.
(b) Nectarine may: (i) disclose your identity or other information about you to any third party who claims that Your Content or any other material posted by you by or through the Service violates their rights, including their intellectual property rights, publicity rights, or their right to privacy; or (ii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities, third parties or court order requesting or directing us to disclose the identity or other information (including Your Content) of any User posting any materials on or through the Service.
(c) We do not commit to reviewing any of Your Content or any other user content or materials before it is posted or transmitted through the Service, and cannot ensure prompt removal of objectionable material after it has been posted or transmitted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content, including any of Your Content, provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.
12. Privacy Notice; Additional Terms.
(a) You agree that all personal information you provide to register with the Service or otherwise, including but not limited to through the use of any interactive features on the Service, is governed by our Privacy Notice, and you consent to all actions we take with respect to your personal information consistent with our Privacy Notice.
(b) Your use of the Service is subject to any and all additional terms, policies, rules or guidelines applicable to the Service or certain features or content of the Service that we may post on or link to the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated into, and made a part of, these Terms of Service.
13. Notice of Copyright Agent.
We respect the intellectual property rights of others. Anyone who believes that their work has been reproduced in the Service in a way constituting copyright infringement may provide a notice to the designated Copyright Agent for the Service containing the following: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; (iv) the address, telephone number, and, if available, an email address at which the complaining party may be contacted; (v) a representation that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a representation that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of our Copyright Agent, in the following manner:
By mail:
Ink LLP
900 W. Hastings St.
Vancouver, BC V6C 1E5
Canada.
Please use the same procedure for any claimed infringement of any trademark rights or infringements or misappropriations of other intellectual property or third party rights.
14. Termination or Cancellation. As noted above, these Terms of Service are a legally binding agreement between you and Nectarine with respect to your use of the Service. Either we or you may terminate these Terms of Service with or without cause or prior notice. You will still be liable for payment of any amounts due or other obligations incurred prior to termination, and if you use the Service after such termination, that use will constitute your new agreement to these Terms of Service. If any Laws require that we provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Service or by sending a communication to any address (email or otherwise) that we have for you in our records. Nectarine’s rights under these Terms of Service that by their terms, nature, sense or context are intended to survive the termination of these Terms of Service shall survive such termination. Without terminating your right to use the Service pursuant to these Terms of Service (and without prejudice to Nectarine’s right to terminate these Terms of Service), we may suspend or block your access to the Service whenever it appears to us that you might be breaching or violating these Terms of Use or otherwise about to cause harm or damage to us or others. No breach of these Terms of Use by Nectarine shall be deemed a material breach unless Nectarine is first given not less than fifteen (15) business days to cure the breach
15. Governing Law.
The Service is controlled by us from our offices within Canada and the United States and is intended for Canadian or United States users only. If you choose to access the Service from locations outside Canada or the United States, you do so at your own risk and are responsible for compliance with local laws. You may not use or export anything in the Service in violation of Canadian or United States’ export laws and regulations or these Terms of Service. You agree that these Terms of Service, and all claims of every nature (including without limitation, contract, tort and strict liability) relating to any aspect of the Service, shall be governed by and construed in accordance with the laws of Canada applicable to agreements made and to be entirely performed within Canada, without regard to its conflicts of law principles. THESE TERMS OF SERVICE WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. You agree that disputes shall be heard exclusively in the courts of the Province of British Columbia. You consent to the jurisdiction of such courts, waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by Canadian law.
16. Corrections. There may be information on the Service that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Service at any time, without prior notice.
17. No Commercial Use; Authorization. You may use the Service for your internal, non-commercial (except as otherwise set forth herein) use solely for lawful purposes in compliance with these Terms of Service. If you are using the Service on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Service on such entity’s behalf, and that such entity agrees to indemnify Nectarine pursuant to Section 20 below.
18. Limitations of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER NECTARINE NOR ANY OF ITS EXISTING OR FUTURE AFFILIATES, SUPPLIERS OR AGENTS WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES, OR FOR DAMAGES FOR LOST PROFITS, FOR LOSS OR IMPAIRMENT OF PRIVACY, SECURITY OR DATA, FOR FAILURE TO MEET ANY DUTY (INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, WORKMANLIKE EFFORT OR OF LACK OF NEGLIGENCE), OR FOR ANY OTHER SIMILAR DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO ANY BREACH OR OTHER ASPECT OF THESE TERMS OF SERVICE OR THE SERVICE, EVEN IF NECTARINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR MISREPRESENTATION.
19. Exclusive Remedy. IF FOR ANY REASON NECTARINE IS FOUND LIABLE HEREUNDER, NECTARINE’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF: (i) THE FEES YOU HAVE PAID TO NECTARINE, IF ANY, IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OF ACTION GIVING RISE TO LIABILITY; OR (ii) $100 USD. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO YOUR RELATIONSHIP WITH NECTARINE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM IS PERMANENTLY BARRED. THE DAMAGE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF SERVICE SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Indemnity. You agree to defend, indemnify, and hold harmless Nectarine, our licensors, subsidiaries, affiliates, successors and assigns, and each of the officers, directors, members, agents, partners, employees, and representatives of the foregoing, for, from and against any and all losses, damages, fees, penalties, liabilities, claims, or demands (actual or alleged), and costs and expenses (including reasonable attorneys’ fees and legal costs), arising out of or related to: (1) Your Content; (2) your use of the Service; (3) your breach of these Terms of Service; (4) your violation of the rights of a third party, including but not limited, your infringement of any third party intellectual property rights; (5) the use of your account by a third party; (6) any dispute between you and any other user, including without limitation, including without limitation, any dispute between a Credit Seeker and a Credit Provider; or (7) any overt harmful act toward any other user of the Service. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any claim, action, or proceeding which is subject to indemnification by you under this Section 20 within a reasonable period of time of our becoming aware of it.
21. Notices, Including Our Address for Legal Notices.
(a) We may give you notice by any lawful method, including (without limitation) legal notices and notices of subpoenas. We may provide the notices by posting them on the Service or by giving them by email or postal mail to any address that we have for you. You agree to update your address as appropriate and to check for notices posted on the Service.
(b) You agree to send us notice by mailing it to “Our Address for Legal Notices” which is:
Ink LLP
900 W. Hastings St.
Vancouver, BC V6C 1E5
Canada.
22. Amendments. We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter. Your continued use of the Service following the posting of revised Terms of Service means that you accept and agree to the changes. We encourage you to check these Terms of Service often for updates.
23. Electronic Communications, Transactions, and Signatures.Using the Service, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Service, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICE. You hereby waive any rights or requirements under any Laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
24. Agreement; Miscellaneous. These Terms of Service, which incorporate by reference any: (i) additional terms on the Service or otherwise provided by us for particular activities, including the Additional Terms; and (ii) disclosures provided by us and consents provided by you on the Service, constitute the entire agreement and understanding between you and us and neither party has relied on any representations made by the other that are not expressly set forth in these Terms of Service. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of such right or provision. These Terms of Service operate to the fullest extent permissible by Law. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Service is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Service or use of the Service. You agree that these Terms of Service will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Service and the lack of signing by the parties hereto to execute these Terms of Service. Except as set forth in Sections 10 and 20 above, there are no third party beneficiaries of any part of these Terms of Service. These Terms of Service are personal to you, and are not assignable, transferable, or sublicensable by you except with Nectarine’s prior written consent, which Nectarine may withhold for any reason or no reason. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
25. No Class Actions. Each party expressly waives their right to file a class action or seek relief on a class basis. YOU AND NECTARINE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
26. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE, OR THE SUBJECT MATTER OF THESE TERMS OF SERVICE.
27. Further Information. If you would like to receive our legal name and address by email or request any additional information from Nectarine, please provide us your email address by sending your request, in writing, to Our Address for Legal Notices. If you have a complaint, you may contact us at the address(es) set forth in Section 21.
28. Notice About Trademarks. NECTARINE CREDIT™ and any associated logos or designs are trademarks of Nectarine Capital Inc. All other trademarks and logos on the Service and/or in the Nectarine Content are the property of their respective owners. All rights are reserved.
