Member Agreement US
1. OUR SERVICES
Welcome to Nicity! Nicity.com is the go-to destination to find your perfect place to live, to move there hassle-free, and to make the best out of your new (or existing) neighborhood.
This Member Agreement (the “Terms”) governs your rights and responsibilities related to Nicity’s services including all of Nicity’s websites, apps, products, services, domains, and marketing campaigns (together as “Services”) if your place of residence is in the United States.
You become a “Member” when you register to use Nicity’s Services. If you have chosen not to register for our Services, you may still be able to access our Services as a “Visitor.” By accessing our Services, whether as a Member or Visitor, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms as a legally binding contract with Nicity (even if you are using the Services on behalf of a company), so please take a moment to read these legally binding Terms.
Your use of certain Services as Business Services (as defined in our Business Services Terms), may be subject to additional terms, policies, and guidelines (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you on the Services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
Throughout these Terms, we use “Nicity”, “we”, “us” and “our” to refer to the companies offering our Services to you. If you live in the United States, the Services are operated and provided to you by Nicity Inc. 228 Park Avenue South, New York, NY 10003.
IMPORTANT: U.S. MEMBERS AND VISITORS, PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH IN SECTION 16(a) BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH NICITY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.
2. JOINING NICITY’s Services (THE NEIGHBORHOOD)
a. Eligibility. You may use our Services only if you can legally form a binding contract with Nicity, and only in compliance with the Terms and all applicable laws. You can’t use the Services if (1) you are a child for whom consent is required to fully use the Services (e.g., if you are under 13 pursuant to COPPA); (2) you are a registered sex offender in any jurisdiction or are otherwise subject to applicable law, order or legal action barring you from using or accessing an online service that permits use by minor children; (3) we previously disabled your Account for violations of these Terms or other of our Supplemental Terms or policies; (4) our Services are not directed to your geographic territory; or (5) you are otherwise prohibited by applicable laws from accessing or receiving our Services. We reserve the right to refuse registration for, access to, or use of our Services by any person or household at any time and for any reason.
b. Becoming a Member. You must provide us with accurate and complete information if you are intending to register as a Member. Please note that we reserve the right to reject and terminate any registrations submitted with false or inaccurate registration information, or otherwise submitted in violation of these Terms.
c. Account Types and Access. Members may create and operate accounts for personal and/or business use. If you use our Business Services (a “Business Page”), then you agree to our Business Services Terms, which are incorporated into these Terms. Each member can have one Account per residence and each business is limited to one Account per business location. It is your responsibility to maintain the security of your Account login information and you must keep such login information confidential. You are responsible for all activity that takes place under your Account. You should notify us immediately if you become aware of any unauthorized use of or access to your Account.
d. Permitted Activities. You may use our Services only for the purposes for which they are provided and by the means we make available (such as our website, apps, and APIs), and in each case subject to any Supplemental Terms we provide governing their permitted uses.
3. OUR LICENSE GRANT TO YOU. Subject to your complete and ongoing compliance with these Terms and all applicable guidelines and policies, Nicity hereby grants you a limited, non-exclusive, non-transferable, and freely revocable license to access and use the Nicity’s Services. This license grant is not a sale of the Services or any portion thereof, and Nicity retains all of our right, title, and interest in the Services and all copies thereof.
4. RIGHTS YOU GRANT
a. Generally. Some of the Services provided allow Nicity’s Members to post, publish, submit, upload content such as profile pictures or information, photos, images, music, videos, information, comments, likes, recommendations, questions, messages, and information. You retain ownership of your Member Content.
c. License Grant to Other Members. You can also grant each Member of our Services a non-exclusive license to access your Member Content through the Services and to use, reproduce, distribute, display, and perform such Member Content as permitted through the functionality of the Services and under these Terms.
e. Feedback. You are welcome to share any feedback or ideas you have about Nicity and our Services with us (“Feedback”). You agree that in sharing your Feedback, you hereby grant Nicity an unrestricted, irrevocable, perpetual, , non-exclusive, transferable, fully-paid, royalty-free right to use the Feedback as we see fit and in connection with any of our products and services now known or hereinafter developed.
f. Sharing Content. We invite you to share Content from Nicity through our sharing features, including the Share button and the use of our privacy settings to blur Member information when taking a screenshot. Copying, sharing, or redistributing Content by any other means, including through web scraping, is prohibited.
g. Software. Using Nicity’ services may require downloading software to your phone, computer or other devices. We may require you to accept updates of our Services that you have installed on your computer or mobile device earlier. You acknowledge and agree that we may automatically update that software, and the then-current version of these Terms will apply to any updates.
5. COMMUNITY RULES
a. Community Guidelines.
These Terms include our Community Rules on appropriate use of Nicity’ services. Our Community Rules apply to Content submitted by you on Nicity, including submissions in Groups and Private Messages. We have the right to limit the distribution of or remove Content that we determine violates the Community Guidelines. We reserve the right to moderate Content, although we expressly disclaim any obligation to do so, and we can remove Content, suspend, delete, or deactivate your Account or limit your Account privileges, or otherwise refuse service to you, if you violate our Community Guidelines, these Terms, or our other policies, or if you infringe intellectual property, or otherwise engage in behavior that we think may harm Nicity or a Nicity neighborhood.
b. Prohibited Conduct.
You agree that you will not, under any circumstances (i) gain or attempt to gain unauthorized access to any part of Our Services, including the other Members Accounts; (ii) interfere with, disrupt, or damage our Services or attempt to do so (by posting viruses, instigating a service attack, or spamming Members); (iii) attempt to gain access to non-public areas of our Services, computer systems, and any technical delivery systems of our providers; (iv) attempt to prove, scan, or test the vulnerability of our systems, networks, or Services, or breach any security or authentication measure; (v) conduct facial recognition or other biometric analysis of the Content (as defined below) posted on Nicity; (vi) develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins, and add-ons or any other technology) to scrape the Services or otherwise copy profiles and other data from the Services; or (vii) otherwise access or use the Services in an unlawful or unanticipated manner. For clarity, any attempt to engage in any of the behaviors listed in this section is also prohibited.
c. Disputes Between Members; Waiver of Claims Against Nicity.
In case of a dispute with another Member, we hope that you will be able to work it out. However, please understand that Nicity is not responsible for the actions of our Members. Our Members are responsible for their own actions and behavior. Therefore, you agree that Nicity has no responsibility for the conduct of Members or other third parties and, to the maximum extent permitted by applicable law, you hereby release the Nicity Entities from losses, liabilities, claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with disputes involving you and other Members. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.”
d. Community Moderation.
Some Members are provided with additional account features to use to support their neighborhood, including moderation tools. WE ARE NOT RESPONSIBLE FOR THE ACTIONS TAKEN BY THESE MEMBERS WHILE USING THESE ACCOUNT FEATURES. We reserve the right to overturn any action taken by these Members if we, in our sole discretion, believe that such action is not in the interest of Nicity. We reserve the right to revoke or limit a Member’s access to these tools at any time, with or without notice, for any reason or no reason, including for a breach of these Terms or any relevant policies or guidelines. If you are given access to these additional account features, including moderation tools, then:
● You agree that you are taking all actions related to community moderation on a volunteer basis and are not an employee or contractor of Nicity;
● You may not represent that you are authorized to act on behalf of Nicity;
● You may not enter into any agreement with a third party on behalf of Nicity;
● You may not perform moderation actions in return for any form of compensation, consideration, gift, or favor from third parties; and
● If you have access to any non-public information through these account features, then you will use such information only in connection with your role as a volunteer.
6. MEMBER TRANSACTIONS
a. Products and Services Offered by Members. You are responsible for your own decisions and actions on the Services. Nicity does not own or sell any of the products or services listed by Members on the Services, so any actual contract is formed between the Member making an offer and the Member seeking to purchase. Nicity does not process payments related to any transaction between Members contracted on or through the Services.
b. Engaging Other Members.
Nicity does not interview, check background , monitor, supervise or control Members. Using Nicity to find a service, via search does not make us an employer, placement agency, representative, or agent of or for you or any other Member or service provider, and you acknowledge and agree that no such relationship is intended or created by these Terms or your use of the Services. If you and another Member decide to work together, the two of you, but not Nicity, are solely responsible for complying with any applicable laws, such as tax and employment laws. Members are not independent contractors, employees, joint venturers, franchisees, or service providers to or for Nicity.
c. Prohibited Transactions.
You may not use the Services to solicit, advertise for, or contact in any form, Members for any purpose not related to the Services. The usage of the Services to collect the contact information or other personal information of Members without our prior written consent is prohibited.
d. Nicity Only Provides a Venue.
Nicity is not a party to interactions, transactions or disputes between Members, we have no control over and do not guarantee (i) the existence, quality, safety, or legality of any goods or services listed by Members on the Services; (ii) the truth or accuracy of Member Content or listings; (iii) the ability of Members to sell or pay for goods or services; (iv) that Members who choose to contract with one another will actually complete the transaction, or (v) the integrity, responsibility, or actions of any Members. Nicity reserves the right to remove any Member’s listing on the Services for any reason or no reason, at any time, with or without notice. When interacting with other Members you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER NICITY NOR OUR AFFILIATES ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. NICITY AND OUR AFFILIATES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
7. NOTIFICATION PREFERENCES.
a. Notifications. You will receive notifications from Nicity related to your use of and interactions with our Services within the Services, to the email address to which your Account is linked, and on your device or browser. You may also choose other kinds of notifications. You can change your preferences and customize your default notification settings. You can use these preference settings to unsubscribe to certain notifications by email or text message.
b. Invitations. You can use our Services to send invitations to individuals who are not our Members yet, (by post mail, email, or text message, to register for the Services (“Invitations”). You acknowledge that these Invitations are sent by you and not by Nicity, and Invitations sent by post mail are sent by Nicity on your behalf. Such Invitations may identify you as the person inviting the user and may include details about your neighborhood. You acknowledge that certain third party fees, such as those from your mobile carrier or Internet service provider, may apply to the use and operation of your device in connection with your sending an Invitation and that you are solely responsible for any such third party fees.
c. Text Messages. Nicity provides a text message service that provides Members with notifications relevant to their neighborhood, Account, or other Services, such as urgent alerts. Nicity does not charge for our text notifications, but your carrier may charge you for such messages. Text notifications may not be delivered if your phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Further, factors beyond the control of the user’s wireless carrier or wireless internet provider may interfere with message delivery, including equipment, terrain, proximity to buildings, and weather. You acknowledge that notifications may not be timely received and that neither Nicity nor your wireless carrier guarantees that text notifications will be delivered. These notifications are not intended to replace any primary phone service, such as a traditional landline or mobile phone that may be used to contact emergency services. You acknowledge and agree that Nicity is not liable, and you shall not seek to hold Nicity liable, for any damages related to your use of the text notification service.
9. THIRD-PARTY SITES AND SERVICES.
Our Services may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Nicity. We are not responsible for any such third-party websites, information, materials, products, or services. If you access any third-party website, advertisement, service, or other Content from Nicity, you do so at your own risk. Nicity may not warn you that you are leaving the Services and are subject to the terms and conditions of another website or domain, which is not under the control of Nicity. You agree that Nicity has no liability arising from your use of or access to any third-party website, service, or Content.
10. CHANGES TO OUR SERVICE.
We may offer our Members additional Services and product features, and add, change, or discontinue our existing Services and product features at any time and in any region, with or without notice to you. If you are dissatisfied, your have the right to stop using our Services or the affected feature.
11. RESTRICTIONS FROM OUR LICENSORS.
Some of the information and Services available through Nicity’s services are licensed from or supported by third parties. These third-party terms and disclosures apply to your use of the Services.
You agree to defend, and hold Nicity and our affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (the “Nicity Entities”) harmless from any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, made by any third party due to or arising out of any and all of the following (a) your use of the Services; (b) your violation of these Terms; (c) your violation of applicable laws or regulations; (d) your violation of any rights of another party, including any Members; (e) your interactions and transactions with other Members; or (f) your Member Content. We reserve the right to control the defense of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims and to not settle any claim without our prior written consent. You agree that the provisions of this section will survive any termination of your Account(s), the Terms, and/or your access to the Services.
13. DISCLAIMERS; LIMITATION OF LIABILITY
a. Disclaimers; we provide no Warranties. You understand and agree that to the maximum extent permitted by applicable law your access to and use of the Services or any Content are at your own risk. Our Services are provided to you on an “AS IS” and “AS AVAILABLE” basis, with all faults. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NICITY ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. The Nicity Entities make no warranty or representation and disclaim all responsibility and liability for (i) the completeness, accuracy, availability, timeliness, security, or reliability of the Services; (ii) any harm to computer systems, loss of data, or other harm that results from access to or use of the Services; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; (iv) viruses or other harmful components distributed by the Services; and (v) whether the Services will meet requirements or be available on an uninterrupted, secure, or error-free basis. We can’t guarantee continuous or secure access to the Services, and operation of the Services may be interfered with by numerous factors outside of our control. No advice or information, whether oral or written, obtained from the Nicity Entities or through the Services will create any warranty not expressly made herein.
b. Liability Limits. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NICITY ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER MEMBERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; OR (IV) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR ACCOUNT, TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NICITY ENTITIES EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE TO NICITY BY YOU FOR THE SERVICES DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (B) ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT OR OTHERWISE, AND WHETHER OR NOT THE PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
c. No Liability for Conduct of other Members. YOU ARE RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES. YOU UNDERSTAND THAT NICITY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF OTHER USERS OF THE SERVICES. NICITY MAKES NO WARRANTY THAT ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NICITY MAKES NO WARRANTY REGARDING THE QUALITY OF GOODS OR SERVICES PROVIDED BY THIRD PARTIES, NOR THE ACCURACY, TRUTHFULNESS, TIMELINESS , RELIABILITY OR COMPLETENESS OF ANY CONTENT MADE AVAILABLE BY THIRD PARTIES ON OR THROUGH THE SERVICES.
d. Nicity Is Not a Broker. Therefore, Nicity does not provide any financial or real estate advice. Nicity is not an attorney, lender, escrow agent, or real estate broker representing any Member. NICITY AND OUR AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE EXISTENCE, OWNERSHIP, LEGAL STATUS (INCLUDING, BUT NOT LIMITED TO, BUILDING CODE COMPLIANCE AND COMPLIANCE WITH ACCESSIBILITY LAWS), SUITABILITY, OR CONDITION OF ANY PROPERTY LISTED ON NICITY, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT A PROPERTY.
e. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
f. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NICITY ENTITIES AND YOU.
14. DISPUTE RESOLUTION.
In case of a dispute between you and Nicity, our objective is to provide you with a neutral and cost‐effective means of resolving the dispute quickly. Therefore, if you have a dispute with Nicity, you agree to contact us and try to resolve the dispute informally before pursuing other avenues, including arbitration as set forth in Section 16(a) below.
a. Term and Termination. The Terms commence on the date when you accept them and remain in full force and effect for as long as you access or use our Services, unless terminated earlier in accordance with the Terms.
i. Termination by You. You may terminate these Terms with Nicity at any time by deactivating your Account(s) and discontinuing your use of the Services.
ii. Termination by Nicity. We may terminate, suspend, delete, or deactivate your Account(s) or stop providing you with all or part of our Services at any time for any or no reason, with or without notice, without liability to you.
iii. Survival. In case of termination, whether by you or by us, Section 3 (Rights You Grant), Section 12 (Indemnification), Section 13 (Disclaimers; Limitation of Liability), Section 14 (Dispute Resolution), Section 15 (General), and Section 16 (Jurisdiction Specific Provisions) of these Terms shall survive.
b. Member Support. Please visit http://nicity.com/ to find answers to common questions or email us at firstname.lastname@example.org
c. Infringement. If you believe Content on the Services infringes your copyright, you can reach our notification agent at Nicity Inc. 228 Park Avenue South, New York, NY 10003; Phone:_______; Email email@example.com. If you are in the U.S., your notice must satisfy the requirements enumerated in 17 U.S.C. §512(c)(3).
d. Integration. The entire agreement between you and us include these Terms, our Community Guidelines, our Business Services Terms, and other Supplemental Terms and policies referenced herein, constitute with respect to our Services, and supersede any other agreements or understandings (oral or written), except that in the event of any conflict between these Terms and Supplemental Terms the Supplemental Terms shall control solely with regard to the Services to which they apply.
e. Updates. We reserve the right to amend these Terms and any other Supplemental Terms at any time. We will notify you of any material changes as legally required (by emailing or by posting an amendment notice in your neighborhood’s newsfeed). Such changes to the Terms and Supplemental Terms shall be effective immediately for new Visitors. Changes to applicable policies and guidelines become effective immediately unless otherwise stated. If you keep using Nicity after a change to Terms or any applicable Supplemental Terms is effective, you accept and agree to be bound by the new terms; if you disagree with the new terms, you must stop using the Services and delete your Account(s).
f. Notices. Notice to Nicity under these Terms must be in writing and sent to Nicity using the contact information set out on our website. Notices will be deemed given upon personal delivery, upon delivery if by mail, or upon valid transmission through email.
g. No Agency. These Terms do not create any agency, joint venture, partnership, joint controllership, employment or franchise relationship between you and Nicity.
h. Miscellaneous. To the extent allowed by applicable law, the English version of these Terms is binding, and other translations are for convenience only. You may not assign any of your rights or obligations under these Terms without our prior written consent, which consent may be withheld in our sole discretion. If any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions. Except as expressly provided in this Agreement, this Agreement is intended solely for the benefit of you and the Nicity Entities, and is not intended to confer any benefits upon, or create any rights in favor of, any Person other than you and the Nicity Entities. Our failure to act in a particular circumstance does not waive our right to act with respect to that or other circumstances. We shall be excused for any problem due to a circumstance beyond our reasonable control. You represent and warrant on an ongoing basis and at all relevant times that you are not, nor is any individual with access to your Account, nor is any entity or person that (directly or indirectly) owns, controls, or is affiliated with you, acts on your behalf or is otherwise associated with you, subject to financial, economic or trade sanctions or embargoes, or otherwise designated on any list of prohibited or restricted parties. or territories, including any such lists maintained from time to time by the United Nations Security Council, the UK Government, US Government, the European Union or its member states or any member states of the European Free Trade Association, or other applicable government authority. In the event that, at any relevant time, the warranty outlined in the preceding sentence ceases to be true, complete, and accurate, you shall notify us immediately.
16. JURISDICTION-SPECIFIC PROVISIONS.
a. United States. If you live in the United States, this section applies to you.
i. Governing law, Jurisdiction and Venue. These Terms are governed by California law, without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement section of these Terms. However, the governing law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. This section is only intended to specify the use of California law to interpret these Terms. Both you and Nicity agree that all claims and disputes arising out of or relating to these Terms (and any Supplemental Terms unless expressly otherwise set forth in such Supplemental Terms) that are not subject to arbitration per these Terms will be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Francisco County, and you hereby submit to the exclusive jurisdiction thereof.
ii. Arbitration Agreement. You and Nicity agree to the arbitration and dispute resolution terms in this section (the “Arbitration Agreement”). For the purposes of this Arbitration Agreement, references to “Nicity,” “you,” “we” and “us” include our respective subsidiaries, agents, affiliates, employers, employees, partners, shareholders, predecessors in interest, successors, assigns, and heirs. We encourage you to carefully read these important terms, which include a requirement that claims arising out of or relating to these Terms (and any Supplemental Terms unless expressly otherwise set forth in such Supplemental Terms) shall be brought individually and subject to arbitration, subject to the exceptions in Section 16(a)(iii), Section 16(a)(iv), and Section 16(a)(v), and include instructions for how to opt out if you do not agree.
iii. Small Claims Court. Notwithstanding the foregoing, either you or Nicity may bring an individual action in small claims court.
iv. Emergency Equitable Relief. Notwithstanding the foregoing, either you or Nicity may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
v. Claims not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
vi. Applicability. You agree that any dispute or claim relating in any way to your access or use of our Services (including without limitation any Business Services), or to any aspect of your relationship with Nicity (including without limitation as a business), will be resolved by binding arbitration, rather than in court, except that you may assert certain qualifying claims in small claims court in accordance with the terms above.
vii. Arbitration rules and forum. These Terms evidence a transaction involving interstate commerce and that notwithstanding the provision above with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. §1 et seq. (“FAA”) will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If for whatever reason the FAA is inapplicable, the state law governing arbitration agreements in the state in which you reside shall apply. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Nicity Inc. 228 Park Avenue South, New York, NY 10003, attn: Legal Department, with copy to firstname.lastname@example.org. Your letter must include (1) the name, mailing address, telephone number, e‐mail address of the party seeking arbitration and the Account username, if any, as well as the email address associated with your Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) the party’s portion of the applicable filing fee. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you can’t afford to pay JAMS’s filing, administrative, hearing, and/or other fees and can’t obtain a waiver from JAMS, Nicity will pay them for you. In addition, Nicity will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims, such amounts totaling less than $10,000, unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you reside, or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
viii. Authority of arbitrator. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The exceptions to the preceding sentence are (1) all disputes arising out of or relating to the class action waiver, including any claim that all or part of the class action waiver is unenforceable, illegal, void or voidable, or such class action waiver has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) all disputes arising out of or relating to the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (3) all disputes arising out of or relating to whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration will decide the rights and liabilities, if any, of you and Nicity. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
ix. Waiver of jury trial. YOU AND NICITY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. This clause shall not preclude parties from seeking provision remedies in aid of arbitration from a court of appropriate jurisdiction.
x. Waiver of class or other non-individualized relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER can’t BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the federal or state court located in San Francisco, California. All other claims shall be arbitrated.
xi. 30-day right to terminate. You have the right to terminate of the provisions of these Terms that mandate arbitration by sending written notice of your decision to opt out to email@example.com, within 30 days after first becoming subject to a version of these Terms containing an arbitration provision. Your notice must include your name and address, your Nicity username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to terminate of this Arbitration Agreement. If you opt out of arbitration, all other parts of these Terms will continue to apply to you. termination of arbitration has no effect on any other arbitration agreements that you may currently have, or may enter into in the future, with us.
xii. Severability. Except as provided in Section 16(a)(x) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then these specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
xiii. Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Nicity.
xiv. Material Changes. Notwithstanding any provision in these Terms to the contrary, we agree that if Nicity makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Nicity at the following address: firstname.lastname@example.org.