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Terms and Conditions

Of

Nyfty, LLC

 

Last Updated: March 22, 2017

 

PLEASE READ ALL TERMS BEFORE USING NYFTY’S SERVICES

 

This agreement is important to understand how our service works and what responsibilities you have as a user of Nyfty. We understand a lot of this is legal language, so if you have any questions or concerns, please don’t hesitate to contact our support team. We promise we’re more fun than this page!

 

Thanks for using Nyfty!

Terms

Accessing and using the website and services (collectively referred to as “Service” or “Services”) of Nyfty, LLC (“Nyfty”) constitutes a contractual agreement to these Terms. The Services is a copyrighted work belonging to Nyfty. Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.

 

Nyfty can alter or change these Terms and Conditions (“Terms”) at any time. The most up to date Terms will always be provided on this page and additional notice may be provided, and continued use of the site and Services constitutes an agreement to any revisions.

 

YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICE.

 

THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

 

All Users of the Service must be 18 years old or older. You may not access or use the Service, or accept these Terms if you are not at least 18 years old. Misrepresenting your age or using the site under the age of 18 is a direct violation of these Terms and will result in account removal.

 

Within these Terms, any use of “include,” “includes,” and/or “including” means “including but not limited to.”

 

  1. The Service

 

NYFTY DOES NOT PROVIDE COURIER SERVICES AND DOES NOT AUTHORIZE ANY USE OF THE SERVICES TO SEND GOODS. NYFTY IS ALSO NOT A TRANSPORTATION SERVICE AND DOES NOT AUTHORIZE ANY USE OF THE SERVICES TO PROVIDE TRANSPORTATION.

 

Nyfty functions as the arranger and scheduler for purchases and delivery of goods (the “Service”).

 

Independent third party registrants of Nyfty’s site that have been approved to accept and deliver orders shall be referred to as “Drivers” herein. Nyfty also refers to Drivers as “Pilot” or “Pilots” and all Terms associated with “Driver” should also be applied to “Pilot”. You understand this name may change in the future and that any name changes will be applied to the provisions associated with Drivers even if these Terms have not been updated to reflect the new name.

 

The use of “Pilot” is entirely marketing and has no association with aviation or the actual flying of planes. In no way does Nyfty grant the ability to operate a plane or any other privileges associated with a pilot’s license.

 

You understand that “User” refers to anyone who accesses and uses our service. Users are customers, drivers, website visitors, or any other person(s) who access the Service.

 

You understand that we do NOT mandate any form of transportation for our Drivers. Although called Drivers, they may opt to deliver orders without a car, including walking or biking. We do NOT require Drivers to have access to a car, and Drivers understand and accept all risks associated with their choice to use a car to deliver orders.

 

You may NOT request, and Drivers may NOT deliver, purchase or otherwise aide the sale or trafficking of illegal or hazardous materials. You may also not request, and Drivers may not purchase or deliver any goods requiring identification to purchase or believed by the Driver or Nyfty to be subject to specific standards or container requirements to transport as dictated by law or regulation.

 

  1. Relationship with Drivers

 

If Drivers choose to drive a car, they release Nyfty from all associated liabilities from driving. Drivers are personally liable for all damages they encounter as a result of using a car with our Services. Drivers are solely responsible for the safe purchase and delivery of goods and are responsible to replace and/or credit the customer for the value of any goods incorrectly purchased or damaged in delivery.

 

WE DO NOT CURRENTLY HIRE DRIVERS FOR OUR SERVICE AS EMPLOYEES, THOUGH WE MAY DO SO IN LIMITED CIRCUMSTANCES AS DESCRIBED HEREIN. REGARDLESS OF THE HOURS DRIVERS CHOOSE TO DRIVE, DRIVERS ARE CLASSIFIED AS PART-TIME 1099 INDEPENDENT CONTRACTORS AND ARE NOT ELIGIBLE FOR ANY COMPANY BENEFITS. PROMOTIONAL BENEFITS FOR DELIVERING ORDERS, INCLUDING BUT NOT LIMITED TO BONUSES, DO NOT CHANGE THIS RELATIONSHIP.

 

IN CERTAIN MARKETS, IF NYFTY HIRES DRIVERS AS EMPLOYEES OR AGREES TO ANY PAYMENT AGREEMENT NOT CONSISTENT WITH THE TYPICAL PER-ORDER PAYMENT, THAT DOES NOT CHANGE THE INDEPENDENT, NON-EMPLOYEE STATUS OF OTHER DRIVERS. THOSE WILL BE CONSIDERED INDIVIDUAL CASES, GOVERNED BY OUTSIDE AGREEMENTS AND SEPARATE FROM THESE TERMS.

 

NOTHING IN THESE TERMS WILL BE CONSTRUED TO CREATE A RELATIONSHIP OF EMPLOYER AND EMPLOYEE, PRINCIPAL AND AGENT, PARTNERSHIP OR JOINT VENTURE, OR ANY OTHER FIDUCIARY RELATIONSHIP. DRIVERS WILL NOT BE ENTITLED TO WORKER’S COMPENSATION, RETIREMENT, INSURANCE OR OTHER BENEFITS AFFORDED TO EMPLOYEES OF NYFTY.

 

NYFTY IS NOT RESPONSIBLE FOR WITHOLDING ANY TAXES FOR DRIVERS.

 

 

  1. License and Access

 

  1. Subject to these Terms, Nyfty grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own use.

 

  1. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof.

 

  1. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets in the Service and its content are owned by Nyfty, Nyfty’s suppliers or the vendor for which they are associated. You acknowledge that nothing herein shall be interpreted as restricting Nyfty’s rights to use your User Content in connection with the Service or to aggregate any User Content with other data for use by the Nyfty. As between you and the Nyfty all rights in and to the aggregated data belong to Nyfty. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights. Nyfty and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms

 

  1. Accounts

 

In order to use the Services, all users must register for and maintain a personal account (“Account”). You must submit all required fields in the registration in order for your account to be active. By submitting information to the Service, you represent and warrant to us that it is accurate. Submitting incorrect information or failing to maintain accurate information may limit your use of the Services.

 

You are responsible for all activity associated with your account and agree to maintain the secrecy of your Account username and password. You agree to immediately notify Nyfty of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Nyfty cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

  1. User Content, Feedback

 

Within the Services, you may be permitted to submit, upload or publish content, including textual, audio and/or visual content including but is not limited to profile pictures, order attachments, order text, and Driver / customer reviews (any such content “User Content”).

 

You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (set forth herein). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Nyfty. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Nyfty is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.

 

This content remains your property, but by providing it to Nyfty, you grant Nyfty an irrevocable, nonexclusive, royalty-free and fully paid license to use, modify, copy, create derivative works of, distribute, publicly display, and use and otherwise exploit your User Content without further notice or consent from you. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

 

If you provide Nyfty with any feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Nyfty all rights in such Feedback and agree that Nyfty shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Nyfty will treat any Feedback you provide to Nyfty as non-confidential and non-proprietary. You agree that you will not submit to Nyfty any information or ideas that you consider to be confidential or proprietary

 

  1. Acceptable Use Policy

 

You agree to not to use the Service to collect, upload, transmit, display, submit or distribute any User Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is defamatory, libelous, obscene, pornographic, unlawful, threatening, or promotes physical harm of any kind against any group or individual or is otherwise offensive – as deemed by Nyfty in its sole discretion; (iii) is harmful to minors in any way; or (iv) is in violation of any law, regulation, or obligations or restrictions imposed by any third party.

 

In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii)  use the Service to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file, if any).

 

Nyfty retains the right (but has no obligation) to monitor and/or remove User Content without notice to you. By using the Service, you understand the risk associated with transmitting any sensitive data online and release Nyfty from any liability associated with the transfer and storage of that data.

 

  1. DMCA Policy

 

Nyfty respects the intellectual property of others and asks that users of our Service do the same. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (1) your physical or electronic signature; (2) identification of the copyrighted work(s) that you claim to have been infringed; (3) identification of the material on our services that you claim is infringing and that you request us to remove; (4) sufficient information to permit us to locate such material; (5) your address, telephone number, and e-mail address; (6) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (7) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

 

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

 

The designated Copyright Agent for Nyfty is: Kenan H Bateman

Address of Agent: 205 S Kings Dr #309, Charlotte, NC 28204

Telephone: 919-391-4319

Email: Contact@ThatsNyfty.com

 

  1. Payments, Orders and Storefronts

 

By using the Services, you understand you may be charged for the good services you receive in accordance with the order form. We use a third party payment processor for all payments. By submitting an order, you agree that we may share your payment information with the third party payment processor and that you will be charged for any charges associated with your order including order cost plus delivery fees plus added gratuity (“Tip”) plus processing fees. By submitting an order, you also agree that you may be assessed additional fees associated with use of the Service that violates the Terms or orders that include errors or misuse as determined by Nyfty. Such potential additional fees will be disclosed to you prior to your placing an order. Nyfty reserves the right to charge Users a fee for orders submitted to stores outside of the store’s posted hours of operation or for orders where items requested are out of stock. It is the responsibility of the User to contact the store and verify an item is in stock prior to submitting an order.

 

You understand that a Driver reserves the right to determine brands and types of goods if not otherwise detailed in the order. No refunds will be given for deliveries resulting from insufficient information provided within the order. You are responsible to provide necessary information for the Driver to purchase desired goods. Partial or incomplete orders must still be paid for in full if delivered, and you understand that if particular goods or brands are out of stock, it will  not render the order cancelled in its entirety, rather, you may be assessed a fee as set forth in the previous paragraph. All payments are final and non-refundable unless otherwise determined by Nyfty.

 

By listing a business listing page (a “Storefront”) on our site, we make no representation of any partnership, agency or joint venture in any capacity with that business. Storefronts are listed on our Service through an automated algorithm and community edits and maintained through publicly available information and the work of our Users to submit and maintain accurate information. No representation is made to the accuracy of any information contained in a store or product description. Nyfty is not responsible for inaccurate information, even if that information is provided directly by the business within Nyfty-verified or managed storefronts. Unless otherwise explicitly provided on an individual Storefront, Nyfty has no direct affiliation, partnership or contractual relationship with the listed businesses and is not authorized to act on their behalf. All trade and service marks used and affiliated with such businesses remain the property of their respective owners and inclusion in the Service by Nyfty does not represent any endorsement or ownership thereof.

 

Nyfty makes no guarantee of the quality of products or items delivered, and the customer accepts the quality of items as a result of delivery. For safety reasons, Drivers MAY NOT open or otherwise alter items after purchase. Because of this, Users recognize if a Driver purchased or requested an order as stated by the customer, the actual accuracy of the order is the responsibility of the customer and/or the business providing the order, not Nyfty or the Driver. Nyfty shall not be liable for orders or items inaccurately provided by outside businesses and Users agree to pay for orders in this instance. As some items or products may not deliver well – for example, frozen goods – the customer recognizes that items may change in quality as a result of delivery and agrees to accept the item in the state delivered.

 

 

  1. Third Party Links, Ads and Other Users

 

Service may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Nyfty, and Nyfty is not responsible for any Third-Party Links & Ads. Nyfty provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.

 

Each Service user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Service users are solely between you and such users. You agree that Nyfty will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.

 

You hereby release and forever discharge the Nyfty (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

  1. Disclaimers; Limitation on Liability

 

THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND NYFTY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NYFTY SHALL BE LIABLE FOR ANY ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR ANY INDIRECT CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES DAMAGES INCLUDING AS A RESULT OF ANY PERSONAL INJURY OR PROPERTY DAMAGE IN CONNECTION WITH THESE TERMS OR ANY USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF NYFTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY USING THE SERVICES, YOU UNDERSTAND AND ASSUME ANY RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES AND YOUR DECISION TO ALLOW OTHERS TO PURCHASE AND DELIVER GOODS TO YOU.

 

YOU FURTHER AGREE TO RELEASE NYFTY OF ANY RISKS ASSOCIATED WITH THE DELIVERY OF GOODS. THIS INCLUDES, BUT IS NOT LIMITED TO, IMPROPER HANDLING OF FOOD OR OTHER PERISHABLE ITEMS.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

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

 

  1. Indemnification

 

You agree to indemnify and hold Nyfty and its officers, directors, employees, and agents harmless from any and all claims, losses, and expenses (including attorney fees),made by any third party due to or arising out of (a) your use of the Service (b) your violation of these Terms, (c) your violation of applicable laws or regulations, (d) your User Content, or (e) if you are a Driver, your delivery of any order (including but not limited to any claim relating to any auto accident, your negligence or willful action or any problem with delivery). Nyfty reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Nyfty. Nyfty will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

  1. General

 

  1. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may suspend or terminate your rights to use the Service (including your Account) at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Nyfty will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, all terms which by their nature survive termination will remain in effect, including but not limited to all the following provisions of these Terms will remain in effect: Sections 3(b), 3(c), 5 and Sections 9 through 15.

 

  1. Relationship of parties. No joint venture, partnership, employment, or agency relationship exists between you, Nyfty, or any Driver or other third party service provider as a result of this Agreement or use of the Services.

 

  1. Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Nyfty and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

 

Applicability of Arbitration Agreement.All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Nyfty that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Nyfty, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

 

Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (Notice) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Nyfty should be sent to the Nyfty attn..: Terms of Use Dispute at the address listed below (or such other address as may be provided by the Nyfty for this purpose. After the Notice is received, you and the Nyfty may attempt to resolve the claim or dispute informally. If you and the Nyfty do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

 

Arbitration. You agree that any dispute, claim or controversy arising hereunder or relating in any way to these Terms and not informally resolved shall be settled by binding arbitration in Mecklenburg County, North Carolina, in accordance with the commercial arbitration rules of Judicial Arbitration and Mediation Services (“JAMS”). The arbitrator shall issue a written decision specifying the basis for the award made. The party filing a claim or counterclaim in the arbitration proceeding shall pay the deposit(s) determined by JAMS with respect to such claim or counterclaim. All other costs associated with the arbitration and imposed by JAMS shall be paid as determined by the arbitrator(s) and, in absence of such determination, equally by each party to the arbitration.  In addition, unless the arbitrator awards payment of reasonable attorney and other fees to a party, each party to the arbitration shall be responsible for its own attorneys' fees and other professional fees incurred in connection with the arbitration. Determinations of the arbitrator will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The arbitrator shall apply the substantive law of the State of North Carolina, without giving effect to its conflict of laws rules.

 

Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Nyfty in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE NYFTY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

 

Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

 

Right to Waive.Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

 

Emergency Equitable Relief. Notwithstanding the foregoing, either party 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.

 

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.

 

Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Mecklenburg County, North Carolina, for such purpose

 

  1. Disclosures. Nyfty is located at the address listed below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

  1. Electronic Communication. The communications between you and Nyfty use electronic means, whether you use the Service or send us emails, or whether Nyfty posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Nyfty in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nyfty provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

 

  1. Entire Terms, severability, waiver, assignment. These Terms constitute the entire agreement between you and us regarding the use of the Service. If any provision of these Terms is held to be unenforceable or invalid, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent of the law. Nyfty’s failure to enforce any provision in these Terms does not constitute a waiver of such provision. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Nyfty’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Nyfty may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

 

 

  1. Third Party Application Stores

 

If you are accessing the Service via an application on a device provided by such third party, Inc. or an application obtained through the such third party App Store or other third party application market (such as the Play Store) (each an “Application”), the following shall apply: (a) Both you and Nyfty acknowledge that these Terms are concluded between you and Nyfty only, and not with such third party, and that such third party is not responsible for the Application or the content therein; (b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Application; (c) You will only use the Application in connection with an such third party device that You own or control and as permitted by the Usage Rules or similar terms set forth in the App Store Terms of Service or applicable third party terms of service; (d) Both you and Nyfty acknowledge and agree that such third party has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify such third party of such failure, and such third party will refund the purchase price for the Application to you; and to the maximum extent permitted by applicable law, such third party will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will, as between such third party and Nyfty, be Nyfty’s sole responsibility; (f) Both you and Nyfty acknowledge that., as between Nyfty and such third party, Nyfty, not such third party, is responsible for addressing your claims or the claims of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (g) Both you and Nyfty acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Nyfty, and not such third party, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (I) Both you and Nyfty acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (j) Both you and Nyfty acknowledge and agree that such third party and such third party’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms of Service, such third party will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof. Additionally, such third party’s trade and service marks, logos, including Apple, the Apple Logo, iPhone, iPad, Android and Google are property of the applicable third party and not Nyfty.

 

  1. Copyright/Trademark Information

 

Copyright © 2017 Nyfty, LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

 

  1. Contact Information

 

Terms Inquiries

Nyfty LLC

205 S Kings Dr #309

Charlotte, NC 28204

Contact@ThatsNyfty.com

 


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