Your use of the Website shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE.
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED IN SECTION 13) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 13 BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
In order to use the Website, you must be 18 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws. The Website is not intended for children under the age of 13 and no person under the age of 13 may use the Website.
2. User Conduct
You must only use the Website for lawful purposes, and you must not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Website. You may not without our prior written consent:
In using the Website, you further agree:
3. Protection of Intellectual Property Rights and License
You acknowledge that content available through the Website, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, and content provided by suppliers, sponsors, or third-party advertisers (“Intellectual Property Rights”), is protected by copyright, trademarks, patents, or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of Company’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.
4. Disclaimer Regarding Information Provided on the Website
COMPANY AND ITS AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. WHILE COMPANY STRIVES TO KEEP THE INFORMATION ON THE WEBSITE ACCURATE, COMPLETE, AND UP-TO-DATE, COMPANY CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE WEBSITE.
5. Disclaimer of Warranties With Respect to Use of the Website
THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. COMPANY MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE. NEW JERSEY DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
6. Links to Other Websites That Company Does Not Control
7. Electronic Communications, Signatures and Agreements
The information communicated on the Website constitutes an electronic communication. When you communicate with Company through the Website or via other forms of electronic media, such as e-mail, you are communicating with Company electronically. You agree that Company may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that Company provides to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication (e.g., by Company or you).
8. Communications with Company
You acknowledge that telephone calls to or from Company may be monitored and recorded and you agree to such monitoring and recording.
You verify that any contact information provided to Company, including, but not limited to, your mailing address, shipping address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Company. You acknowledge that by voluntarily providing your telephone numbers to Company, you expressly agree to be contacted at the telephone numbers you provide.
You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Company relating to this Agreement, any transaction with Company, and promotions regarding Company services. These communications may be made by or on behalf of Company, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that Company will not be responsible for these charges.
Company may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing addresses and phone numbers provided by you directly or obtained through other lawful means. You agree to provide Company notice within 30 days of any change to your contact information by writing to Nitro Media 132 Mill Road, Moncton NB Canada E1C 9V8 or emailing email@example.com. Your consent to this communications provision is not required to make any purchase with Company.
9. International Users
Your Use is controlled, operated and administered by Company from our offices within the USA. If you access the Website from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Website any country or in any manner prohibited by any applicable laws, restrictions or regulations.
10. Limitation on Company’s Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL COMPANY, ITS SUPPLIERS, PARENTS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE RESULTING FROM (1) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; OR (@) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES.
You agree to indemnify and hold harmless Company, its directors, officers, employees, agents, co-branders, suppliers, subsidiaries, parents, and affiliates, from and against any and all liability, losses, claims, demands, disputes, damages, and costs of any kind, including, without limitation, reasonable attorneys’ fees and costs of litigation resulting from or in any way connected with (i) your use of the Website; (ii) information you submit or transmit through the Website; (iii) privacy, tort or other claims (e.g., claims under the Federal Telephone Consumer Protection Act or its state law equivalent) relating to the provision of personal information (e.g., telephone number) to Company that is not owned by you, in contravention of this Agreement; and/or (iv) your breach of this Agreement.
12. Termination of Website
You agree that Company may, in its sole discretion, and at any time, terminate or suspend its operation of the Website or your use of the Website, without prior notice to you, for any reason that Company, in its sole discretion, deems appropriate. You further agree that Company will not be liable to you or to any third party for the consequences of such termination or suspension. In the event of any termination of your use of or access to the Website, you agree that the provisions of the Agreement regarding protection of intellectual property rights and license, indemnification, disclaimer regarding information provided on the website, disclaimer of warranties with respect to use of the website, limitation on Company’s liability, and pre-dispute, mandatory binding arbitration, and class action waiver shall survive any such termination.
13. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, Company, and/or any involved third party relating to your account, Your Use (defined here), your relationship with Company, or these Terms and Conditions. This includes any and all claims that relate in any way to your use of the services, your attempted use of the services, and any act or omission by Company or any third party related to your use or attempted use of the services. You, Company, or any involved third party may pursue a Claim. Company agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against Company. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Company both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Company will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Company, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our services and upon which you rely. You may send the written description by Nitro Media 132 Mill Road, Moncton NB Canada E1C 9V8. You agree to negotiate with Company in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Company’s receipt of your written dispute, you agree to the dispute resolution provisions below.
Commencement of Arbitration. You and Company agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred. Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Company agree.
Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms and Conditions and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Company.
Arbitration Fees. Company shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Although Company may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, Company agrees that it will not seek such an award, unless your Claims are determined by the arbitrator to be frivolous. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
Enforceability. This provision survives your relationship with Company, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Miscellaneous. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Company and shall not be modified except in writing by Company.
Amendments. Company reserves the right to amend this arbitration provision at any time. Your continued use of any Company Website, or use or attempted use of a Company service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Company will provide you notice and an opportunity to opt-out.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF, USE, OR ATTEMPTED USE OF A COMPANY SERVICE ( WHICHEVER COMES FIRST) BY WRITING TO NITRO MEDIA, 132 MILL ROAD, MONCTON NB CANADA E1C 9V8. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
14. Exclusive Venue for Other Controversies
You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the Supreme Court in New York County, New York, or the United States District Court for the Southern District of New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
15. Remedies for Company
In order to avoid irreparable injury to Company, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Company from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
16. Modifications to the Agreement
Company may make changes to these Terms and Conditions, from time to time, in its sole discretion, by updating this posting on the Website without notice to you. Your continued use of the Website following the posting of a new version of the Terms and Conditions constitutes your acceptance of any such changes. Accordingly, whenever you visit the Website, check to see if a new version has been posted.
17. Trademark Notices
Company is a trademark of Nitro Media. All other trademarks and service marks displayed on the Website are the property of Company or their respective owners. You may not use or display any trademarks or service marks owned by Company without Company’s prior written consent. You may not use or display any other trademarks or service marks displayed on the Website without the permission of their owners.
18. Copyright Policy
It is Company’s policy to respect the copyright and intellectual property rights of others. Company may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Company complies with the Digital Millennium Copyright Act.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Company’s Copyright Agent the following information:
Please direct inquiries regarding infringement issues by email to firstname.lastname@example.org.
19. Other Important Terms
Company may assign, transfer, or sub-contract any of our rights or obligations under these Terms and Conditions to any third party at our discretion. Any representations, warranties, and indemnification obligations made or undertaken by you will survive. No delay by Company in exercising any right or remedy under these Terms and Conditions shall operate as a waiver of that right or remedy or shall affect Company’s ability to subsequently exercise that right or remedy. Any waiver must be agreed to by Company in writing. These Terms and Conditions supersede any other terms previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise.
Policy Last Revised: May 17, 2023