Nixplay Terms of Service

The following Terms of Service (“Terms”) govern your use of the Nixplay digital photo frame e-store and services including your use and access to all related web sites, hardware products, including but not limited to, Nixplay digital photo frames, networks, software, mobile applications and other products and services provided by Nixplay (“Service”). The Service is operated by Creedon Technologies USA LLC, apart from the domain shop.nixplay.co.uk which is owned and operated by Creedon Technologies Limited, UK d/b/a NIXPLAY (“Nix”, “Nixplay”). These Terms apply to all personal users, business users, visitors, or any others who use and access the Service (collectively, “Users”).

Please review all of the Terms carefully. By using any of the Service provided or operated by Nixplay, you signify that you have read, understood and agreed to be bound by these Terms, including all Nixplay policies that apply to your use of the Service. If you are agreeing to these Terms for use by an organization or company, you are agreeing to these terms on behalf of that organization (in such a case, the terms “you” and “your”, as used in these Terms, shall apply to both you and your organization). Your use of the Service is subject to the following terms and all applicable laws. By accessing the Service, you accept, without limitation or qualification, these Terms. If you do not agree with any of the Terms, please do not use the Service. You are responsible to ensure that your access to the Service and material available on or through it are legal in each jurisdiction in or through which you access or view the site or such material.

These Terms provide that all disputes between you and Nixplay will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 18 below for the details regarding your agreement to arbitrate any disputes with Nixplay.

1. Nixplay Service. You may access and use the Service under the terms and conditions of these Terms. The Service allows you to add, remove and arrange your photos and other audio-visual content (“Content”) through your web browser and/or mobile app for display on a paired Nixplay photo frame. Your accepted contacts/friends will also be able to send and receive Content from you according to your settings. The Nixplay photo frame is purchased separately and may be subject to additional terms and conditions. Nixplay and its affiliates attempt to be as accurate as possible in describing all products available for sale. However, Nixplay does not warrant that product descriptions or other content of this site are accurate, complete, reliable, current or error-free. Prices and availability information provided on this Service is subject to change without notice. This website and its contents are not to be construed as an offer to sell any product or service.

2. Eligibility. You must be at least sixteen (16) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least sixteen (16) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an organization or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.

3. Accounts and Registration. To access the features of the Service, you must register for an account. When you register for an account, you may be required to provide Nixplay with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to Nixplay is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify Nixplay at support@nixplay.com

4. Payment. Nixplay may charge fees for access to certain portions of the Service (“Paid Services”) and will notify you of those fees at the time you opt into a Paid Service. You may not share access to a Paid Service with any other individual. By electing to access a Paid Service, you authorize Nixplay to direct its third-party payment processor to charge the credit card identified by you (which you represent and warrant that you are authorized to use) all applicable fees for that Paid Service in U.S. dollars or any other currency option shown or offered by Nixplay, at the time of payment, including all applicable taxes. If Nixplay does not receive payment from your credit card provider, you agree to pay all amounts due upon demand and Nixplay may suspend your access to the Service until you have paid all outstanding amounts. You agree to reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Nixplay to collect any amounts that are not paid when due. You may cancel your use of a Paid Service or your account at any time. All sales are final and Nixplay will not refund any amounts paid, except as expressly provided in these Terms. You acknowledge that Nixplay reserves the right to change its fees at any time upon prior notice to you. At no time will you be charged without your prior knowledge and consent.

5. Content

   1. Who owns my Content that I put on the Nixplay Service? You do. You are able to post and publish Content for display on the Service and your Nixplay photo frame(s). You retain all copyrights and any other proprietary rights that you may hold in the Content that is posted on or through the Service. Your edits to the Content (e.g. Captions) also form part of your Content and we don’t claim ownership of the Content you provide on the Service. Your Content remains your Content, and you’re responsible for it.

   2. Who can access my Content? You have initial control over who may access your Content. However, if you share Content on a Nixplay digital frame(s) that is publicly accessible you agree that anyone you’ve shared the Content with may, for free, use and reproduce the Content. By posting and sharing Content with another User of the Service, you hereby grant that User a non-exclusive license to access and use such Content as permitted by these Terms and the functionality of the Service.

   3. What does Nixplay do with my Content? When you transmit or upload Content to the Service, you allow Nixplay to provide you with the necessary services (e.g. store, resize, geotagging etc.) regarding that Content and to improve your experience while protecting you and your Content. In order to do that we might also collect and use the data regarding the overall characteristics (e.g. orientation of the Content, orientation of the connected Nixplay Frame, device type used, user behavior etc.) of the Content such data may be personally identifiable. See further details in Privacy Policy.

   4. Who is responsible for my Content? You are solely responsible for your Content and the consequences of posting or publishing Content. By posting and publishing Content, you affirm, represent, and warrant that:

      • you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Nixplay and Users of the Service to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 5.4 and in the manner contemplated by Nixplay and these Terms; and
      • your Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.

   5. Can Nixplay remove my Content? Yes. Nixplay will remove, limit distribution of, or disable access to your Content if we determine it's in violation of these Terms, we receive a complaint from another user, we receive a notice of intellectual property infringement, or other legal instruction for removal. We may also block delivery of a Content to or from the Service as part of our effort to protect the Service or our customers, or otherwise enforce the Terms. You understand that when using the Service, you may have visibility of Content from a variety of sources and acknowledge that Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Nixplay with respect to Content.

   6. Who can add me as a friend and send me the Content? By accepting or sending a friend request you allow those specific people to share content with and to receive content from. However, by enabling the auto-accept you allow anyone with your username to add you as a friend and send photos to you. You agree to waive, and when you enable the filter do waive, any legal or equitable rights or remedies you have or may have against Nixplay with respect to such Content.

6. Digital Millennium Copyright Act

   1. DMCA Notification. Nixplay complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact Nixplay’s Designated Agent at the following address:

      Creedon Technologies USA LLC 12301 Whitewater Drive Suite 115 Minnetonka, MN 55343 United States E-mail: support@nixplay.com

      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

   2. Repeat Infringers. Nixplay will promptly terminate without notice the accounts of Users that are determined by Nixplay to be “repeat infringers.” A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had Content removed from the Service more than twice.

7. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

   1. use the Service for any illegal purpose, or in violation of any local, state, national, or international law;

   2. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;

   3. post, upload, or distribute any Content or other material that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

   4. interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any Content, or (ii) reverse engineering or otherwise attempting to discover the source code of the software related to the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;

   5. interfere with the operation of the Service or any User’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other Users of the Service, (iii) attempting to collect, personal information about Users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;

   6. perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;

   7. sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or

   8. attempt to do any of the foregoing in this Section 7, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 7

8. Third-Party Services and Linked Websites. Nixplay may provide tools through the Service that enable you to import and export information, including Content, to and from third party services, including through features that allow you to link your account on Nixplay with an account on a third-party service, such as Facebook, Instagram, Verizon Cloud or Picasa. By using these tools, you agree that Nixplay may transfer and/or import such information and Content to and/or from the applicable third-party service. Such third-party services are not under Nixplay’s control and Nixplay is not responsible for their provision of your information and Content. The Service may also contain links to third-party websites. Such linked websites are also not under Nixplay’s control, and Nixplay is not responsible for their content. Your use of such Third-Party Services may be subject to a different set of Terms & Conditions and Privacy Policies which can be found on the website of the respective Third-Party Service.

9. Termination of Use; Discontinuation and Modification of the Service. . If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Nixplay may, without notice, terminate your account on the Service or suspend or terminate your access to the Service at any time when, in Nixplay’s sole discretion, it believes it is necessary to do so for its provision of the Service. Nixplay also reserves the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. Nixplay will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at support@nixplay.com. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. If you do not have any Nixplay devices connected to your account, be sure to log in and use the Nixplay Service within 6 months of your last update. Accounts may be permanently removed due to prolonged inactivity.

10. Privacy Policy; Additional Terms

    1. Privacy Policy. Please read the Nixplay Privacy Policy carefully for information relating to Nixplay’s collection, use, storage and disclosure of your personal information. The Nixplay Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms.

    2. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Nixplay may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that Nixplay may offer, or rules applicable to particular features or content on the Service, subject to Section 11 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

11. Changes to the Terms. Nixplay reserves the right, at its discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, Nixplay will make reasonable efforts to notify you of such change. Nixplay may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Nixplay may require you to provide consent by accepting the changed Terms. If Nixplay requires your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, Nixplay may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.

12. Ownership; Proprietary Rights. The Service is owned and operated by Creedon Technologies USA LLC, apart from the domain shop.nixplay.co.uk which is owned and operated by Creedon Technologies Limited, UK. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Nixplay are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Nixplay or its third-party licensors. Except as expressly authorized by Nixplay, you may not make use of the Materials. Nixplay reserves all rights to the Materials not granted expressly in these Terms.

13. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Nixplay and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Creedon Technologies Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Nixplay reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Nixplay’s defense of such claim.

14. Disclaimers; No Warranties

    THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. NIXPLAY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE NIXPLAY ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NIXPLAY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF CONTENT OR DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.

    JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

15. Limitation of Liability

    IN NO EVENT WILL THE NIXPLAY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONTENT OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE NIXPLAY ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE

    .

    YOU AGREE THAT THE AGGREGATE LIABILITY OF THE NIXPLAY ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO NIXPLAY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

16. Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Nixplay agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.

17. General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Nixplay regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without Nixplay’s prior written consent. Nixplay may assign these Terms at any time without notice. The failure to require performance of any provision will not affect Nixplay’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2, 4, and 5 through 19.

18. Dispute Resolution and Arbitration

    1. Generally. In the interest of resolving disputes between you and Nixplay in the most expedient and cost-effective manner, you and Nixplay agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The parties’ agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NIXPLAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    2. Exceptions. Notwithstanding subsection 18.1, both parties agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of the parties’ right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

    3. Arbitrator. Any arbitration between you and Nixplay will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Nixplay.

    4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Nixplay does not have a physical address on file for you, by electronic mail (“Notice”). Nixplay’s address for Notice is: Creedon Technologies USA LLC, 12301 Whitewater Drive Suite 115, Minnetonka, MN 55343, United States. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). Nixplay agrees to use good faith efforts to resolve the claim directly, but if Nixplay does not reach an agreement to do so within thirty (30) days after the Notice is received, you or Nixplay may commence an arbitration proceeding.

    5. Fees. The payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. .. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    6. No Class Actions. YOU AND NIXPLAY AGREE THAT EACH 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. Further, unless both you and Nixplay agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

    7. Modifications. In the event that Nixplay makes any future change to this arbitration provision (other than a change to Nixplay’s address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to Nixplay’s address for Notice, in which case your account with Nixplay shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.

    8. Enforceability. If Subsection 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.

19. Feedback. Nixplay welcomes your comments about our Service. However, if you send us a business idea or suggestion (for example, about how to improve or expand Nixplay’s products and services), you agree that Nixplay will be completely free to implement, use, or modify, in any way, your idea or suggestion (or any part of it), without any payment or other obligation to you.

20. Consent to Electronic Communications. By using the Service or contacting us, you consent to receiving certain electronic communications from us as further described in the Nixplay Privacy Policy. Please read the Nixplay Privacy Policy to learn more about your choices regarding Nixplay’s electronic communications practices.

21. Contact Information. The Service hereunder is offered by Creedon Technologies USA LLC, apart from the domain shop.nixplay.co.uk which is owned and operated by Creedon Technologies Limited, UK. You may contact us by sending correspondence to “12301 Whitewater Drive Suite 115, Minnetonka, MN 55343, United States” or by emailing us at support@nixplay.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.

22. Beta Services Participation

    1. This Section describes the additional terms and conditions under which you may access and use certain features, technologies and services made available to you by Nixplay that are not yet generally available, including, but not limited to, any products, services, or features labeled “beta”, “preview”, “pre-release”, “experimental”, or a service which prompts a beta message before your use (each, a “Beta Service”). In the event there is a conflict between the terms of this Section 22 and an existing Nixplay Beta Participation Agreement between you and Nixplay, the terms of the existing Nixplay Beta Participation Agreement will take precedence.

    2. During the term of the applicable Beta Service, you may access and use the Beta Service); You must comply with all policies and guidelines related to any Beta Service posted on the Nixplay Site or otherwise made available to you, including the Privacy Policy and any additional terms and conditions for a specific Beta.

    3. Nixplay may suspend or terminate your access to or use of any Beta Service at any time and for any reason. Nixplay may at any time cease providing any or all of any Beta Service in its sole discretion and without notice. Beta Services also may be unavailable, and/or their performance may be negatively affected by scheduled and unscheduled maintenance.

    4. ADDITIONAL WARRANTY DISCLAIMERS. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE SERVICE TERMS, THE BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, NIXPLAY IS PROVIDING THE BETA SERVICES TO YOU “AS IS.” NIXPLAY AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NIXPLAY AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NIXPLAY’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY BETA SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE BETA SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

23. Review(s)

    1. “Review(s)” means any opinions, product or service ratings or reviews, articles, written expression, in any form or media, and/or any works of authorship that you may provide regarding Nixplay via the Review tool on the Nixplay website.

    2. All Intellectual Property Rights in and to the reviews will belong to Nixplay and Nixplay retains the right, title and interest in connection therewith.

    3. The Reviews system on the Nixplay website is run through a third-party partner. By submitting or transmitting the Review(s) to the Nixplay Site, you grant Nixplay and its third-party partners a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license, with the right to sub-license, to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Reviews and otherwise use and commercially exploit any content provided as Review(s).

    4. 23.4 By using the Nixplay product or service, you agree to receive post-sales emails containing reminders to submit Review(s). You can unsubscribe from such emails by simply clicking “unsubscribe” on the communication. You can also reach out to us at support@nixplay.com regarding any questions related to Review(s).