Near9, Inc. ("Near9") provides its Service (as defined below) to you ("you" or "Merchant") through its web site located at http://www.near9.com (the "Site"), subject to this Terms of Service agreement ("Agreement"). By accepting this Agreement or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms "you" or "Merchant" shall refer to such entity and its affiliates. 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 Service.
Near9 provides its Service (as defined below) to you through its web site located at http://www.Near9.com (the "Site"), subject to this Agreement. Near9 may change this Agreement from time to time without prior notice. The revised terms and conditions will become effective upon posting and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this Agreement is not acceptable to you, your only remedy is to stop accessing and using the Service.
- Description of Service.
The "Service" includes (a) the Site, and (b) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the "content"). Any new features added to the Service are also subject to this Agreement.
- SMS and Mobile.
3.1. Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to email or text content (such as Offers) from the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features of the Service through third-party applications downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Near9 and other entities by SMS, MMS, text message, email or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
- Merchant Conditions
4.1. You will hold harmless Near9 and its officers, directors, employees and agents from, any claim, liabilities, losses, damages, or injury arising from or related to any Offer or any act or omission of you in connection with an Offer or the services or goods provided in connection therewith and/or as it relates to compliance with applicable unclaimed property and other laws relating to the redemption of Offers or any portion thereof.
- General Conditions for All Users / Access and Use of the Service.
5.1. Subject to terms herein, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Near9. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise exploit or make the Service available to any third party; (b) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service. You shall comply with any codes of conduct, policies or other notices Near9 publishes in connection with the Service. You agree not to use the Service if you are a competitor of Near9 or to develop a competing product or service.
5.2. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "post(ing)") in connection with or relating to the Service ("Your Content"). If you are a Merchant, you agree to cooperate with and provide reasonable assistance to Near9 in promoting and advertising the Services. By posting Your Content on or through the Service, you hereby do and shall grant Near9 a worldwide, non-exclusive, royalty-free, fully paid, and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. If you are a Merchant, Near9 reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Near9's website and in other communication with existing or potential Near9 customers. To decline Near9 this right, please email legal@Near9.com stating that you do not wish to be used as a reference.
If you have created an Account, you are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or Account. Near9 reserves the right to access your Account in order to respond to your requests for technical support. Near9 may (but has no obligation to) provide technical support services, through email or otherwise, in accordance with our standard practice. You agree that you are solely responsible for your interactions with any other user (including Merchants) in connection with the Service and Near9 will have no liability or responsibility with respect thereto. Near9 reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user, including Merchants. If you are under 13 years of age, you are not authorized to use the Service, with or without registering. In addition, if you are under 18 years old, you may use the Service, with or without registering, only with the approval of your parent or guardian.
- Intellectual Property Rights.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content ("Service Content") that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Near9, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to Your Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Near9, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Near9.
The Near9 name and logo are trademarks and service marks of Near9 (collectively the "Near9 Trademarks"). If you are a Merchant, Near9 may identify you as a Near9 merchant using your trademarks and logos (and may include a link to your website) on the Site and in other marketing materials. Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Near9. Nothing in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Near9 Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Near9 Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Near9 be liable in any way for any content posted by third parties or at the direction of users (including Merchants), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted via the Service. You acknowledge that Near9 does not pre-screen content, but that Near9 and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Near9 and its designees shall have the right to remove any content that violates this Agreement or is deemed by Near9, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
- Third Party Websites.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Near9 has no control over such sites and resources and Near9 is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Near9 shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties (including Merchants) found while using the Service are between you and the third party, and you agree that Near9 is not liable for any loss or claim that you may have against any such third party.
- Representations and Warranties.
You represent and warrant to Near9 that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all rights or licenses required to engage in your activities (and allow Near9 to perform its obligations) in connection with the Services; and (iii) Your Content does not and will not violate, infringe, or misappropriate any third party's personal or proprietary right.
9.1. Merchants: You have the right to terminate your Account at any time by sending a cancellation request to support@Near9.com. Subject to earlier termination as provided below, if you are a Merchant, Near9 may terminate your Account and this Agreement at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, if you are a Merchant, Near9 may also terminate this Agreement upon ten (10) days notice if you breach any of the terms or conditions of this Agreement.
9.2. Other Users: If you are not a Merchant, you agree that Near9, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Near9 believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Near9 may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Near9 may immediately deactivate or delete your Account and all related information, Offers and files in your Account and/or bar any further access to such files or the Service. Further, you agree that Near9 shall not be liable to you or any third-party for any termination of your access to the Service.
Near9 reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All accrued rights to payment and the terms of Section 5.2 and 6-17 shall survive termination of this Agreement.
- DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Near9 or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND NEAR9 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT NEAR9 DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO OFFERS, INFORMATION OR SERVICES OBTAINED BY YOU FROM NEAR9 OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NEAR9 BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY OFFERS, GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, NEAR9'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Near9 from and against any claims, actions or demands, including without limitation reasonable attorneys' fees, arising or resulting from your breach of this Agreement, any of Your Content, or your other access, contribution to, use or misuse of the Service. Near9 shall provide notice to you of any such claim, suit or demand. Near9 reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Near9's defense of such matter. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
At Near9's or your election, all disputes, claims, or controversies arising out of or relating to this Agreement or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Los Angeles, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in this Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You may not assign this Agreement without the prior written consent of Near9, but Near9 may assign or transfer this Agreement without restriction. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Both parties agree that this Agreement, together with any application or sign-up form, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Near9 in any respect. The failure of Near9 to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Near9 in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of Los Angeles County in the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
- Your Privacy.