Effective: July 15, 2022
1.1 “Authorized User” means Customer and members of Customer’s household authorized by Customer to access the Service subject to the restrictions pursuant to this Agreement;
1.2 “Confidential Information” means any information, business plan, concept, idea, know-how, process, technique, program, design, formula, prototype, algorithm, specifications, design plans, software documentation or work in process, any engineering, manufacturing, marketing, pricing, technical, financial, data, or sales information, or any information regarding suppliers, customers, employees, investors, or business operations, and any other information or materials, whether in written, or graphic, or any other form or that is and whether disclosed orally, or electronically, whether tangible or intangible and in whatever form or media provided, whether or not designated as “Confidential”, “Proprietary” or some similar designation if by the substance of the disclosure or the circumstances surrounding the disclosure, the information would be reasonably considered confidential or proprietary, or otherwise which is learned or disclosed in the course of discussions, studies, or together work undertaken between the parties.
1.3 “Documentation” means Nandi’s user manuals, handbooks, and guides relating to the Service provided by Nandi to Customer whether provided, physically, electronically, or via Nandi’s website.
1.4 “Effective Date” means the earlier of (a) the date when Customer first accesses or uses the Services, or (b) the date when Customer signs or otherwise accepts this Agreement.
1.5 “Feedback” means any suggestion or idea for improving or otherwise modifying the Service or any of Nandi’s products or services.
1.6 “Home Internet Connection” means the internet connect associated with Customer’s household for which the public internet protocol address (“IP Address”) is registered with the Service.
2. The Services. When properly configured and functioning, the Service is designed to facilitate or provides a set of security and privacy measures to internet content accessed via the Service on Customer’s Home Internet Connection.
2.1 Access to Our Services. Nandi hereby grants Customer and its Registered Users the right to access and use the Services solely for Customer’s personal use in accordance with the terms and conditions herein. Customer acknowledges and agrees that the Services only function when Customer is connected to their Home Internet Connection and the Services do not provide protection to devices not accessing the internet via the Home Internet Connection.
2.2 Service Outages. The Service is dependent on internet connectivity and certain third-party service providers that may suffer outages or be unavailable from time-to-time, which may affect the availability of the Services. Customer acknowledges and agrees that such outages are outside of Nandi’s control and Nandi shall not be responsible for any such impacts on the Service. In the event of any Service outage, Nandi may lose Domain Data and Customer’s dashboard may not be accurate for the preceding twenty-four (24) hour period.
2.3 Customer Responsibility. Customer is responsible and liable for all uses of the Service resulting from Customer’s access to the Service and from access provided to others by Customer, directly or indirectly, whether or not such access or use is permitted by these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer and Authorized Users shall not use the Cloud Services in any way that violates Nandi’s then-current policies posted on the Services, on Nandi’s website(s), or otherwise made available to Customer by Nandi (collectively “Nandi Policies”).
2.4 Passwords and Access Credentials. Customer is responsible for keeping passwords and access credentials associated with the Services confidential. Customer will not sell or transfer them to any person or entity other than Customer’s Authorized Users. Customer shall promptly notify Nandi about any unauthorized access to Customer’s passwords or access credentials.
2.5 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) Customer shall not use the Service for any purposes beyond the scope of the rights granted in these Terms; (b) Customer shall not violate or attempt to violate the security of the Service or use to the Service to attempt to violate any third party’s system or network security in any way; or (c) Customer shall not transmit or transfer (by any means) information or software derived from the Service to foreign countries or certain foreign nations in violation of US export control laws. Customer further agrees that Customer shall not, at any time, directly or indirectly: (i) copy any features, functions, or graphics of the Service or any related software component; (ii) modify or create derivative works of all or any part of the Service or any related software component, or the Documentation; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, any related software component, or any Documentation, except as expressly permitted under these Terms; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (v) access or use the Service, any related software component, or Documentation to build a competitive product or service; (vi) remove any proprietary notices from the Service, any related software component, or the Documentation; (vi) interfere with or attempt to interfere with the proper functioning of the Service; or (vii) attempt or engage in any potentially harmful acts that are directed against the Service, including but not limited to violating or attempting to violate any security features of the Service, using manual or automated software or other means to access, "scrape," "crawl" or "spider", or introducing viruses, worms, or similar harmful code into, or while using, the Service, or interfering or attempting to interfere with use of the Service by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the Service.
2.6 Privacy Notice. For information collected by our Services, please review our Privacy Notice, which is located at https://www.getkavalan.com/privacy-policy, which is hereby incorporated into these Terms.
3. Registration, Equipment, and Settings.
3.1 Registration. In order to access the Service, Customer may be required to register an account with Nandi or on the Service (“Account”). When Customer registers for an Account all information provided (“Account Information”) must be true, accurate, current, and complete, and Customer agrees to update the Account Information in order to ensure that it is current. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Customer shall have no ownership or other property interest in any Account, and that all rights in and to any Account are and shall forever be owned by and inure to the benefit of Nandi.
3.2 Eligibility. As an express condition of being permitted to open an Account, Customer represent and warrant that they: (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which they reside, and (ii) are not on a list of persons barred you from receiving services under U.S. laws or other applicable jurisdiction.
3.3 Necessary Equipment and Software. Customer must provide all equipment and software necessary to connect to the Service. Customer is solely responsible for any fees, fees for any third-party platforms, Internet connection or mobile fees, that are incur when accessing the Service. Customer acknowledges and agrees that there is a risk that specific devices, applications, or services connected to the internet via the Service may no longer work correctly, or may cease working entirely, as a result of the Service, and that Nandi bears no responsibility for such interruption in the functioning of any such devices, applications, or services.
3.4 Internet Settings. Customer acknowledges that Customer’s internet service provider (“ISP”) can routinely change Customer’s public IP Address which may cause Customer to lose connection to the Services, and Customer acknowledges and agrees this is outside of Nandi’s control. Customer acknowledges and agrees that, in the event that Customer’s ISP changes Customer’s public IP address, Customer must log into their Account from Customer’s home internet connection for Nandi to reestablish the Service’s connection with Customer’s home. Customer acknowledges and agrees that, to protect against outages of internet connectivity associated with Customer’s Home Internet Connection, Customer should setup a backup/secondary domain name system (“DNS”) setting (“Backup DNS”) on Customer’s router/devices otherwise configured to use the Services (e.g., Customer’s ISP’s DNS service or a reputable third-party DNS service such as those provided by Google or Cloudflare).
4. Intellectual Property Rights.
4.1 Intellectual Property Ownership. As between Customer and Nandi, Nandi owns all right, title, and interest, including all intellectual property rights, in and to the Service and Documentation.
4.2 License to Documentation. Subject to the terms and conditions contained in this Agreement, Nandi hereby grants Customer a non-exclusive, non-sublicensable, revocable, non-transferable license for Customer and Authorized Users to use the Documentation solely in connection with use of the Services.
4.3 Feedback. Nandi has not agreed to and does not agree to treat as confidential any Feedback (as defined above) Customer or Authorized Users provide to Nandi, and nothing in these Terms or in the parties’ dealings arising out of or related to these Terms will restrict Nandi’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or Authorized Users. Notwithstanding Section 7 (Confidential Information), Feedback will not be considered Customer’s Confidential Information or Customer’s trade secret.
4.4 Reservation of Rights. Nandi reserves all rights related to Nandi Assets not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under these Terms, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, Authorized Users, or any third party, any intellectual property rights or other right, title, or interest in or to the Nandi Assets.
5.1 Privacy Notice. Nandi’s Privacy Notice is located at https://www.getkavalan.com/privacy-policy, which is hereby incorporated into and made a part of these Terms by this reference.
5.2 Customer Data. As between Nandi and Customer, Customer shall retain ownership of any data, information, or material Customer transmits through the Service ("Customer Content"). By transmitting Customer Content through the Service, Customer hereby grants to Nandi a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, transmit, export and display the Customer Content and to access Customer’s Account, as reasonably necessary: (i) to provide, maintain, operate and update the Service and to provide customer support for the Service, (ii) to prevent or address service, security, support or technical issues, or (iii) as required by law. Customer shall be solely responsible for the accuracy, quality, content, transmission and legality of Customer Content, and any actions triggered by Customer Content. Customer represent and warrant that (i) Customer has obtained all necessary rights, releases and permissions to transmit Customer Content through the Service and for any actions triggered by Customer Content, and (ii) Customer Content and its transmission, processing, posting and use as Customer authorizes in these Terms will not violate any laws or regulations, Nandi Policies, or the terms of any third-party services.
5.3. Enforcement. Nandi reserves the right, but does not undertake the obligation, to monitor the Service and to investigate and take appropriate legal action against any party that uses the Service in violation of applicable law, these Terms, or Nandi Policies. Nandi reserves the right to accept, reject or modify any Customer Content, but assumes no liability based on its acceptance, rejection, modification or failure to modify any Customer Content. For the avoidance of doubt, nothing in these Terms shall prohibit Nandi from abiding by, or responding to, any lawful subpoena, government request, or other legal process.
6. Fees; Term and Termination.
6.1 Fees. Some features of the Service may only be accessed and used upon the payment of applicable fees (“Fees”). Fees may vary depending on usage in accordance with our current pricing policy available in the Service or on our website. If Customer does not initially register for a version of the Service that requires the payment of a fee, Customer will only be permitted to use those features of the Service for the trial period that are expressed when signing up for the trial period use of the Service (“Free Trial Period”). NOTWITHSTANDING ANYTHING CONTAINED HEREIN, ANY SERVICE PROVIDED DURING THE FREE TRIAL PERIOD IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR INDEMNITIES. Upon the expiration of the Free Trial Period, Customer will only be able to access and use those features of the Service the use of which does not require the payment of a Fee, unless Customer subsequently upgrades to a paid version of the Service. All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer is solely responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
6.2 Term. The term of the Agreement shall commence upon Effective Date and shall continue until terminated in accordance with this Agreement.
6.3.1 By Nandi. Nandi may terminate Customer’s Account and/or these Terms at any time and for any reason. Nandi may also suspend the Service to Customer at any time, with or without cause. If Nandi terminates Customer’s Account without cause, Nandi will refund a prorated portion of Customer’s prepaid Fees. Nandi will not refund or reimburse Customer if Customer’s Account is terminated for cause, including (without limitation) for a violation of these Terms or Nandi Policies.
6.3.2 By Customer. Customer is solely responsible for properly canceling Customer’s Account. If you cancel your account before the end of your current paid up applicable subscription term, Customer’s cancellation will take effect immediately, and Customer will not be charged again. Please note that Nandi does not provide refunds for unused time in the last billing cycle. You may cancel your service by either: (a) using the options within the Service , (b) emailing us at email@example.com; or (c) mailing us at P.O. Box 485, Westford, MA 01886.
6.3.3. Effect of Termination. Once Customer’s Account is terminated, Nandi may permanently delete Customer’s Account and any or all data associated with it. If Customer does not log in to their Account for 12 or more months, Nandi may treat such an Account as “inactive” and permanently delete the Account and any or all data associated with it. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms. All sections of these Terms which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Confidential Information. From time to time, each party may disclose Confidential Information to the other party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under these Terms. The receiving party shall protect the disclosing party’s Confidential Information using the same care as the receiving party uses to protect its own Confidential Information of similar importance, but in no event will the receiving party use less than reasonable care. The receiving party shall only use the disclosing party’s Confidential Information to perform its obligations and exercise its rights under these Terms. The parties agree that their mutual covenant not to disclose or use Confidential Information of the disclosing party shall not apply to any information to the extent that the information: (i) is, or at any time becomes a part of the public domain through no act or omission of the receiving party; (ii) is independently developed by the receiving party without reference to or use of the Confidential Information of the disclosing party; (iii) is rightfully obtained by the receiving party from a third party without any restrictions or obligations of confidentiality; (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party; (v) is approved for release in writing by the disclosing party; or (vi) is required to be disclosed in response to a valid court order, authorized government agency, or to establish a party's rights under these Terms, including to make required court filings; provided, that notice is given promptly to the party whose Confidential Information is to be so disclosed and the parties shall cooperate in seeking a protective order and engaging in other such efforts. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire two (2) years after termination of the Agreement, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Indemnification. You agree to indemnify and hold Nandi, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Nandi Party” and collectively, the “Nandi Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Customer Content; (b) your use of, or inability to use, the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Authorized Users; or (e) your violation of any applicable laws, rules or regulations. Nandi reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nandi in asserting any available defenses. This provision does not require you to indemnify any of the Nandi Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NANDI PARTIES 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. NANDI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES OR NANDI’S WEBSITE(S) IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES OR NANDI’S WEBSITE(S), OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NANDI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NANDI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. NANDI MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NANDI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
10. LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NANDI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT NANDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NANDI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NANDI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NANDI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL NANDI PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) AND (B) THE AMOUNT YOU HAVE PAID TO NANDI UNDER THIS AGREEMENT IN THE PREVIOUS SIX (6) MONTHS. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NANDI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NANDI PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NANDI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3 Customer Content. EXCEPT FOR NANDI’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE NANDI’S PRIVACY NOTICE, NANDI ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, CUSTOMER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NANDI AND YOU.
11. International Users. The Service may be accessible from countries other than the United States and may contain references to services and content that are not available in Customer’s country. These references do not imply that Nandi intends to announce or promote the availability of such services or content in Customer’s country. Services are controlled and offered by Nandi from the United States. Nandi makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
12. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nandi and limits the manner in which you can seek relief from us.
12.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with Nandi, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Nandi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
12.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent United States Corporation Agents, Inc., 1521 Concord Pike, Suite 301, in the City of Wilmington, County of New Castle, 19803. 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 cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Nandi will pay them for you. In addition, Nandi will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims 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 country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) 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 arbitration will decide the rights and liabilities, if any, of you and Nandi. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. 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 Agreement (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 Nandi.
12.4 Waiver of Jury Trial. YOU AND NANDI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nandi are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.5 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 CANNOT 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 State or Federal Courts located in the State of Delaware. All other claims shall be arbitrated.
12.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Nandi username (if any), the email address you used to set up your Nandi account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
12.7 Severability. Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such 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.
12.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nandi.
12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nandi 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 Nandi at the following address: email@example.com, Attn: DISPUTE NOTICE.
13. General Provisions.
13.1 Electronic Communications. The communications between you and Nandi may take place via electronic means, whether you visit the Nandi website(s) or send Nandi e-mails, or whether Nandi posts notices on the Nandi website(s) or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Nandi in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nandi provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
13.2 Release. You hereby release Nandi Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Authorized Users or Third-Party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Nandi Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.
13.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Customer without Nandi’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Nandi shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
13.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both Customer and Nandi agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
13.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
13.8 Notice. Where Nandi requires that you provide an e-mail address, you are responsible for providing Nandi with your most current e-mail address. In the event that the last e-mail address you provided to Nandi is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, Nandi’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nandi at the following address: email@example.com, Attn: DISPUTE NOTICE. Such notice shall be deemed given when received by Nandi by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.11 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.