Terms of Use
Last Updated: August 8, 2024
NÜÜB Co. and/or its affiliates and subsidiaries (collectively, “NÜÜB Co.” “we” or “us”) are pleased to provide to you certain websites, software, applications, content, products, and services in any media format or channel, now known or hereafter devised (the “NÜÜB Co. Products” and “Products”), which may be branded NÜÜB Co., or another brand owned or licensed by NÜÜB Co. References to NÜÜB Co. Products also include any elements of the NÜÜB Co. Products.
PLEASE READ THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS CAREFULLY BEFORE USING THE NÜÜB CO. PRODUCTS. THESE TERMS GOVERN YOUR USE OF THE NÜÜB CO. PRODUCTS IN GENERAL. BY USING THE NÜÜB CO. PRODUCTS YOU AGREE TO BE BOUND BY THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS.
ANY DISPUTES BETWEEN YOU AND US, EXCEPT DISPUTES RESOLVED IN SMALL CLAIMS COURT OR RELATING TO THE OWNERSHIP OR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS, ARE SUBJECT TO A CLASS ACTION WAIVER AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION (SECTION 8.) AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
1. These Terms of Use Are a Contract Between You and Us
A. Binding Contract. These terms of use (the “Agreement”) are a contract between you and NÜÜB Co., as a sole proprietorship doing business and its affiliates and subsidiaries. Other than as expressly stated herein, there are no third-party beneficiaries of this Contract.
B. Agreement. You represent to NÜÜB Co. that you have read, understood, and expressly agree to be bound by this Agreement, and the terms, conditions, and notices contained or referenced herein, whether you have created a NÜÜB Co. account (and agree to this Agreement at the time you created that account) or whether you simply browse, use, or access a NÜÜB Co. Product offered directly by NÜÜB Co. or through a third party (and agree to this Agreement when you browse, use, or access any aspect of the NÜÜB Co. Product). If you do not agree to the Agreement, you may not use the NÜÜB Co. Products.
C. Supplemental Terms. This Agreement governs the NÜÜB Co. Products in general. More specific and/or supplemental terms and conditions may apply to some Products, including but not limited to, a particular contest, sweepstakes or promotion, software, application, promotional code, service or other activity; availability of certain merchandise, content, programs, or other activities; conditions or other limitations to the NÜÜB Co. Products for users under certain ages; and/or specific terms or restrictions that may accompany certain territories, programs, content, products, websites, applications or other software. Any supplemental terms and conditions are in addition to this Agreement and, in the event of a conflict, the supplemental terms will prevail over this Agreement. If you do not agree to the applicable supplemental terms and conditions disclosed, you may not use the NÜÜB Co. Product.
D. Amendments. We may need to make changes to any portion of this Agreement from time to time and for many reasons, including to reflect updates to the NÜÜB Co. Products or changes in law. If we make a material change to this Agreement, it will be effective thirty (30) days following either our dispatch of a notice to you or our posting of the amended terms through the NÜÜB Co. Products, the third party that makes NÜÜB Co. Products available to you or here. You are responsible for periodically reviewing this Agreement for updates and amendments. By continuing to use the NÜÜB Co. Products you will be deemed to have agreed to and accepted any amendments. If you do not agree to any change to this Agreement, you must discontinue using the NÜÜB Co. Products. Our customer service representatives are not authorized to modify any provision of this Agreement, either verbally or in writing.
E. Accounts. Some NÜÜB Co. Products permit or require you to create an account to participate or to secure additional benefits. You agree that any information you provide and maintain is accurate, current and complete, including your contact information for notices and other communications from us and your payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian.
F. Passwords and Security. You agree that you will not share your account or account information with others. You are responsible for taking reasonable steps to maintain the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the NÜÜB Co. Products.
G. Electronic Notice. You consent to receive notices, including agreements, disclosures, and other communications, electronically from us at the email address you have provided. You agree that these electronic notices satisfy any legal requirements that such communications be in writing.
H. Termination or Suspension. We may terminate or suspend your access to any NÜÜB Co. Products, and/or terminate this Agreement subject to the survival of terms as provided below, if required by law, or if we have objective reason to believe you have used the NÜÜB Co. Products in violation of any provision of this Agreement or any supplemental terms, and/or if you engage in or encourage infringement or any other illegal conduct as it relates to your use of the NÜÜB Co. Products.
2. License Grant and Restrictions
The NÜÜB Co. Products, including, but not limited to, movies, television shows, entertainment or informational programming, trailers, bonus material, scripts, code, images and artwork, are our copyrighted, patented or trademarked property or the copyrighted, patented or trademarked property of our licensors and all copyrights, trademarks, service marks, trade names, trade dress, patents and other intellectual property rights in the NÜÜB Co. Products are owned by us or our licensors (who may be third-party beneficiaries of this contract) and protected by the copyright, trademark, patent and other laws of the United States and international treaties.
A. Consumer License. If a NÜÜB Co. Product, or third party providing NÜÜB Co. Products subject to this Agreement, is configured to enable the use of software, content, virtual items or other materials owned or licensed by us, we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use in the United States such software, content, virtual item or other material for your personal, non-commercial use only, only for as long as that NÜÜB Co. Product is made available to you by us, or an authorized third party, and only in accordance with this Agreement and/or the specific terms that apply to that NÜÜB Co. Product, with no right to reproduce, distribute, communicate to the public, make available to the public, or transform any NÜÜB Co. Product, including in connection with any use, creation, development, modification, prompting, fine-tuning, training, testing, benchmarking or validation of any artificial intelligence or machine learning tool, model, system, algorithm, product or other technology (the “AI Tool”), in any media format or channel now known or hereafter devised (except as may be expressly described within the NÜÜB Co. Product or used in a NÜÜB Co. Product in the manner for which it was intended). This is a license agreement and not an agreement for sale or assignment of any rights in the NÜÜB Co. Products. Except as we specifically agree in writing, no element of the NÜÜB Co. Products may be used or exploited in any way other than as part of the authorized Product made available to you. You may own the physical media on which elements of the NÜÜB Co. Products are made available to you, but we retain full and complete ownership of the NÜÜB Co. intellectual property. We do not transfer title to any portion of the NÜÜB Co. websites, software, applications, content, virtual items or other materials and/or services to you. Likewise, the purchase of a license to use any NÜÜB Co. Product does not create an ownership interest in the NÜÜB Co. websites, software, applications, content, virtual items or other materials and/or services.
B. Restrictions on Your Use of NÜÜB Co.’s Products. You agree that you will not nor permit another person to do any of the following without our express written permission, and that these restrictions are a condition to your license:
i. circumvent or disable any content protection system or digital rights management technology used in connection with the NÜÜB Co. Product;
ii. copy the NÜÜB Co. Product (except as expressly permitted by us);
iii. rebroadcast, transmit or perform the NÜÜB Co. Product;
iv. create derivative works of the NÜÜB Co. Product or any part thereof, except as and only to the extent that any foregoing restriction is prohibited by applicable law;
v. move, decompile, reverse-engineer, disassemble, or otherwise reduce to human-readable form the NÜÜB Co. Products and/or the video player(s), underlying technology, any digital rights management mechanism, device, or other content protection or access control measure incorporated into the video player(s);
vi. modify the NÜÜB Co. Products, including, but not limited to, by removing identification, copyright or other proprietary notices from the NÜÜB Co. Products, or by framing, mirroring, or utilizing similar techniques;
vii. access or use the NÜÜB Co. Products in a manner that suggests an association with our products, services or brands;
viii. use the NÜÜB Co. Products for any commercial or business-related use or build a business utilizing the NÜÜB Co. Products, or engage in any activity to enable third parties to engage in any of the foregoing activities, in each case whether or not for profit;
ix. bypass, modify, defeat, tamper with or circumvent any of the functions or protections of the NÜÜB Co. Products;
x. access, monitor, copy or extract the NÜÜB Co. Products using a robot, spider, script, or other automated means, including, for the avoidance of doubt, for the purposes of creating or developing any AI Tool, data mining or web scraping or otherwise compiling, building, creating or contributing to any collection of data, data set or database (other than for a public search engine’s use of spiders for creating search indices to the extent not disallowed by NÜÜB Co., including through the applicable robots.txt files or NOINDEX or NOFOLLOW meta-tags);
xi. damage, disable, overburden or impair the NÜÜB Co. Products; or
xii. use the NÜÜB Co. Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement;
C. Violation. Any attempt to perform any of the restricted actions listed above is a violation of the rights of NÜÜB Co. and/or the intellectual property rights holder.
D. Export Controls. You may not access or use any NÜÜB Co. Product in violation of United States export control and economic sanctions requirements. By acquiring services, content or software through the NÜÜB Co. Products, you represent and warrant that your access to and use of the services, content or software will comply with those requirements.
3. Usage Rules
A. Changes to the NÜÜB Co. Products. The NÜÜB Co. Products are constantly evolving and will change over time. We reserve the right to make such changes or, if necessary, discontinue NÜÜB Co. Products. If required by law, we may also need to suspend, restrict, or terminate your access to NÜÜB Co. Products.
B. Third-Party Services or Platforms. The NÜÜB Co. Products may integrate, be integrated into, or be provided in connection with third-party websites, services, applications, platforms, and/or content. We do not control those third-parties or the products they make available. You should read the terms of use agreements and privacy policies that apply to such third-party products. However, these third-party beneficiaries are not a party to this contract. You agree that your access to the NÜÜB Co. Products using these devices also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service. You represent to NÜÜB Co. that you have read and agreed to those terms.
C. Internet, Browser and System Requirements. You may need a high speed internet connection and/or minimum system and/or browser requirements to access and use certain aspects of the NÜÜB Co. Products. You are required to review the minimum requirements necessary for use of the specific Product.
D. Mobile Networks. When you access the NÜÜB Co. Products through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply.
Downloading, installing or using certain Products may be prohibited or restricted by your network provider and not all Products may work with your network provider or device.
E. Consent to Messages. When you use the NÜÜB Co. Products, you may be given the opportunity to consent to receive communications from us through email, text, and/or mobile push notifications. Standard text and calling rates will apply. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. You can opt out of promotional communications by contacting us here, or, if via text message, by responding STOP. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE NÜÜB CO. PRODUCTS.
F. App Permissions. When you use the NÜÜB Co. Products, you may grant certain permissions to us for your device and/or accounts. Most mobile device platforms provide additional information regarding these permissions and how, if possible, to changes your permission settings. By downloading, installing or using the NÜÜB Co. Products, you agree to receive automatic software updates (as applicable).
G. Informational and Entertainment Purposes. You understand that the NÜÜB Co. Products are for your personal, non-commercial use and are intended for informational and entertainment purposes only; the content available does not constitute legal, financial, professional, medical or healthcare advice or diagnosis and cannot be used for such purposes.
H. Commercial, Marketing, or Branding Use Prohibited. Except as expressly licensed, we do not allow uses of the NÜÜB Co. Products, or other NÜÜB Co. intellectual property, that are commercial or business-related, including uses in marketing or branding, or that advertise or offer to sell or promote products or services (whether or not for profit), or that solicit others (including solicitations for contributions or donations).
I. Malware. You agree not to knowingly or recklessly introduce a virus or other harmful component, or otherwise tamper with, impair or damage any NÜÜB Co. Product or connected network, or interfere with any person or entity’s use or enjoyment of any NÜÜB Co. Product. You agree not to use any software or device that allows automated gameplay, expedited gameplay, or other manipulation of gameplay or game client and you agree not to cheat or otherwise modify a NÜÜB Co. Product or game experience to create an advantage for one user over another.
J. Simulated Activity. You understand that to support smooth operation of the NÜÜB Co. Products across wide geographic areas, aspects of certain activities, such as game play, may be simulated to avoid delays.
4. Paid Transactions
A. Identity of Seller. Sales are made by NÜÜB Co. or the authorized seller identified at the time of sale, if different. If you have questions about your order, please contact the seller at the address provided and they will assist you.
B. Digital Content and Virtual Items. We may make applications, games, software or other digital content available on the NÜÜB Co. Products or through authorized third parties for you to license for a one-time fee. When purchasing a license to access such material from a NÜÜB Co. Product, charges will be disclosed to you before you complete the license purchase.
Your purchase of a virtual item or in-game currency is a payment for a limited, non-assignable license to access and use such content or functionality as intended by the NÜÜB Co. Products with no right to reproduce, distribute, communicate to the public, make available to the public or transform any NÜÜB Co. Product via any online media, in any media format or channel now known or hereafter devised (except as may be expressly described or contemplated within the NÜÜB Co. Product). Virtual items (including characters and character names) or in-game currency purchased or available to you in the NÜÜB Co. Products can only be used in connection with the NÜÜB Co. Products where you obtained them or where they were assembled by you as a result of game play. These items are not redeemable or subject to refund and cannot be traded outside of the NÜÜB Co. Products for money or other items for value. We may modify or discontinue virtual items or in-game currency at any time.
C. Subscriptions. Some NÜÜB Co. Products require paid subscriptions and the acceptance of supplemental terms to access. By signing up for a subscription, you agreed that your subscription will be automatically renewed and, unless you cancel your subscription, you authorized us to charge your payment method for the renewal term. You agree that we can change the terms of the subscription with advance notice to you and an opportunity for you to cancel. The period of auto-renewal will be the same as your initial subscription period unless otherwise disclosed to you. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless we notify you of a rate change prior to your auto-renewal, in which case you will have the right to cancel the renewal of your subscription. From time to time, we may offer a free trial subscription for a NÜÜB Co. Product. If you register for a free trial subscription, we will begin to bill your account when the free trial subscription expires, unless you cancel your subscription before that time.
Unless otherwise disclosed when you subscribe, you have the right to cancel your NÜÜB Co. Product subscription . When a subscription is canceled, you will not receive a prorated refund, but you will continue to have access to the NÜÜB Co. Products until the end of the term during which you canceled the subscription. If you cancel your subscription, you will still be obligated to pay other charges incurred by you in the course of using the NÜÜB Co. Product prior to the date of cancellation. If you pay a periodic subscription fee for a NÜÜB Co. Product, we will provide you with reasonable notice of changes to the fees or billing methods in advance of their effective date and you will be able to cancel your subscription prior to such change. If you subscribed online, we will give you the option of cancelling the subscription online.
D. The Order Process. You will have the opportunity to review and confirm your order, including delivery address (if applicable), payment method and product details. We will send to you a notice when we accept your order and our acceptance will be deemed complete and for all purposes to have been effectively communicated to you at the time we send the notice. At such time, the contract for sale will be made and become binding on both you and us. The risk of loss in any goods you purchase and the responsibility to insure them passes to you when the relevant goods are delivered.
We reserve the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will refund your payment.
E. Payments and Billing. When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party payment card updating services to obtain current expiration dates on credit cards and debit cards.
F. Right of Cancellation; Return of Goods. You may have the right to cancel an order placed for a NÜÜB Co. Product – depending on the nature of the NÜÜB Co. Product. Please read the following information carefully so you understand your right of cancellation.
If you wish to cancel, you must do so by following the cancellation instructions for the particular NÜÜB Co. Product.
i. Cancelling Subscriptions: Please contact us.
ii. Digital Content: When you purchase a license to access digital content or virtual items, you will be given an opportunity to consent to delivery at the time of purchase. By consenting to delivery, you acknowledge that you have lost the right to cancel. License purchase fees paid for digital content are non-refundable.
iii. Physical Goods: You have the right, within thirty (30) days from the date of your receipt of physical goods, to cancel our contract with you and return the goods. This right does not apply to goods stated by us on the NÜÜB Co. Products to be non-returnable, including but not limited to:
• Any products with a seal, where the seal is broken, such as audio and video recordings, computer software, and CD’s, DVD’s or other physical media that have been supplied in sealed packaging; and
• Personalized items.
iv. Personalized Goods: We reserve the right to refuse personalized orders at our discretion. Inappropriate use of our personalization service will cause your order to be cancelled and any payment refunded.
These cancellation rights are separate from and in addition to your rights should any item we supply be faulty.
If you are returning goods that are not faulty, you may be required to pay for the cost of returning the goods to us and we may deduct a reasonable amount if you used the goods.
G. Pricing; Taxes. We may revise the pricing for the NÜÜB Co. Products we offer. When you place your order, we estimate the applicable tax and include that estimate in the total for your convenience. Except to the extent required under applicable tax laws, the actual tax amount that will be applied to your order and charged to your payment method is based on calculations on the date of shipment, regardless of when the order was placed.
H. International Shipping; Customs. When ordering goods for delivery to countries other than the country where the seller is located, you may have to pay import duties and taxes levied. These and any additional charges for customs clearance must be borne by you. For goods shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; manuals, instructions and safety warnings may not be in destination country languages; the goods and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the goods may not conform to destination country voltage (requiring use of an adapter or converter). You are responsible for assuring the goods can be lawfully imported to the destination country. When ordering from us, the recipient is the importer of record and must comply with all laws and regulations of the destination country.
I. Gift Cards. NÜÜB Co. gift cards may be offered for purchase and/or redemption in connection with certain NÜÜB Co. Products, subject to additional terms of service. The risk of loss and title for gift cards passes to you at the time of electronic transmission or delivery to the carrier. Gift cards may be redeemed for eligible products and services.
5. Contests, Sweepstakes and Promotions
Contests, sweepstakes and other similar promotions that you enter on a NÜÜB Co. Product or in connection with NÜÜB Co. Products integrated with a third-party website, service, application, platform, and/or content (the “NÜÜB Co. Promotions”) may be subject to official rules and/or conditions that are supplemental to this Agreement, and which may provide details governing the NÜÜB Co. Promotion such as eligibility requirements, entry instructions, deadlines, prize information and restrictions. If you wish to participate in any NÜÜB Co. Promotion, please first review the applicable official rules and/or conditions. If a NÜÜB Co. Promotion’s official rules and/or conditions conflict with this Agreement, the provisions contained in the official rules and/or conditions govern and control the NÜÜB Co. Promotion. Your entry to a NÜÜB Co. Promotion constitutes User Generated Content (Section 7.) and is subject to all provisions of this Agreement that govern your submission and our use of your User Generated Content.
6. Disclaimers and Limitation on Liability
THE NÜÜB CO. PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
PLEASE REFER TO THE HELP SECTION OF THE APPLICABLE NÜÜB CO. PRODUCT FOR ASSISTANCE IF A NÜÜB CO. PRODUCT IS NOT WORKING PROPERLY. It is your responsibility to ensure you follow installation instructions, have the minimum system requirements, update software as recommended, and consult our customer service resources if you encounter a problem with the NÜÜB Co. Products.
We shall not be liable for delay or failure in performance for causes beyond our control or any other damage which does not result from a breach of our obligations under this Agreement.
We are not liable for business losses. We only supply products for your personal, non-commercial, and domestic use. If you use the products for any other purpose we will have no liability to you for any loss of profit, loss of business, business interruption, loss of business opportunity, or similar loss.
WE ARE NOT RESPONSIBLE FOR ANY LACK OF FUNCTIONALITY OR FAILURE TO PROVIDE ANY PART OF THE NÜÜB CO. PRODUCT(S), OR ANY LOSS OF CONTENT OR DATA THAT IS DUE TO: YOUR EQUIPMENT, DEVICES, OPERATING SYSTEM OR INTERNET CONNECTION; OR YOUR FAILURE TO COMPLY WITH SPECIFIED COMPATIBILITY REQUIREMENTS.
WE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE HUNDRED U.S. DOLLARS (US $100).
7. Submissions, User Generated Content, DMCA Takedown Notices
A. Submissions and Unsolicited Ideas Policies. Our company policy does not allow us to accept or consider unsolicited creative ideas, suggestions or materials. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.
B. User Generated Content. The NÜÜB Co. Products may ask for or allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, contest entries or other content (the “User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether a NÜÜB Co. Product made available by us or in connection with NÜÜB Co. Products appears on a NÜÜB Co. website, service and/or platform or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
In most instances, we do not claim ownership of your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the NÜÜB Co. Products and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity. You agree that submission of User Generated Content does not establish any relationship of trust and confidence between you and us, and that you have no expectation of compensation whatsoever (except as may be specifically stated in the provisions of the NÜÜB Co. Products in connection with the submission, or arising from it).
You represent and warrant that your User Generated Content conforms to this Agreement and that you own or have the necessary rights and permissions including, without limitation, all copyrights, music rights and likeness rights (with respect to any person) contained in the User Generated Content, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by this Agreement; and you agree to indemnify and hold us harmless from any claims or expenses (including attorneys’ fees) by any third party arising out of or in connection with our use and exploitation of your User Generated Content resulting from your breach of this Agreement. You also agree to waive and not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement to waive and not to enforce from others who may possess such rights.
To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using the specifically referenced copyrighted works as required for the sole purpose of creating such a work, provided that such license shall be conditioned upon your assignment to us of all rights worldwide in the work you create for the duration of copyright in the User Generated Content, in all formats and media known or unknown to date, including for use on NÜÜB Co. Products and on third party sites and platforms. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
We may monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through a NÜÜB Co. Product, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to this Agreement, without prior notice to you. We may terminate your account and access to the NÜÜB Co. Products if your User Generated Content violates this Agreement, including unlawful postings or content, without prior notice to you. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
8. BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS PROVISION CAREFULLY—YOU ARE AGREEING TO RESOLVE ALL DISPUTES BETWEEN YOU AND NÜÜB CO. THROUGH BINDING INDIVIDUAL ARBITRATION AND INCLUDE A CLASS ACTION WAIVER AND JURY TRIAL WAIVER.
You and NÜÜB Co. agree to resolve, by binding individual arbitration as provided below, all Disputes (including any related disputes involving The NÜÜB Co., its subsidiaries, or its affiliates) except for: (i) any claim within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is an individual dispute and not a class action; and (ii) any dispute relating to the ownership or enforcement of intellectual property rights. “Dispute” includes any claim, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law, between you and NÜÜB Co. concerning the NÜÜB Co. Products or this Agreement, or this exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of these terms or the formation of this contract, including, without limitation, the arbitrability of any dispute, and any claim that all or any part of this Agreement is void or voidable.
YOU AND NÜÜB CO. AGREE TO WAIVE CLASS ACTION PROCEDURES.
Neither you nor NÜÜB Co. will seek to have a dispute heard as a class action or private attorney general action or in any other proceeding in which any party acts or proposes to act in a representative capacity. You and we agree not to, and expressly waive any right to, file a class action or seek relief on a class basis. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the applicable arbitrations or proceedings. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead, all Disputes will be resolved in a court.
A. Small Claims Court. Subject to applicable jurisdictional requirements, you or we may elect to pursue a Dispute in a local small claims court rather than through the informal dispute resolution process described below or arbitration, so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand, the other party may, in its sole discretion, inform the arbitral forum that it chooses to have the Dispute heard in small claims court. At that time, the arbitral forum will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
B. Informal Dispute Resolution. In the event of a Dispute, you and NÜÜB Co. agree to attempt to avoid the costs of formal dispute resolution by giving each party a full and fair opportunity to address and resolve the Dispute informally. Except for those Disputes eligible to be resolved in small claims court or relating to the ownership or enforcement of intellectual property rights, the claiming party must send to the other party a notice of a Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving the notice, detailed factual information sufficient to evaluate the merits of the claiming party’s individualized claim, and the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. You must send any notice of a Dispute to NÜÜB Co., by contacting us. We will send any notice of a Dispute to you at the contact information we have available for you, which may include, if applicable, the contact information associated with your NÜÜB Co. account. You and NÜÜB Co. will attempt to resolve a Dispute through informal negotiation within sixty (60) days beginning from the date the notice of a Dispute is sent. This informal negotiation requires an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and NÜÜB Co. (the “Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to individually participate. NÜÜB Co. will participate in the Conference through one or more representatives, which may include our counsel. After the end of the sixty (60) day informal negotiation period and not before, and only after the completion of the Conference with respect to a claim, you or we may commence an arbitration proceeding regarding that claim. Nothing in this paragraph is intended to prohibit the parties from engaging in informal communications to resolve the initiating party’s claims before, during, or after any Conference or filing in small claims court. Each party agrees that a court may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
C. Arbitration Process and Rules. If you and NÜÜB Co. do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be resolved by binding arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, and not state law, governs the interpretation and enforcement of this arbitration agreement. Any demand for arbitration must be filed with ADR Services, Inc. (the “ADR Services”) (https://www.adrservices.com/). If ADR Services is not available to arbitrate, the arbitration will be conducted by National Arbitration and Mediation (the “NAM”) (https://www.namadr.com/). The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this Agreement. The arbitration will be conducted by a single, neutral arbitrator. Arbitration may be conducted in person, through the submission of documents, by phone, or online. Proceedings that cannot be conducted through the submission of documents, by phone, or online will take place in Boston, Massachusetts. You and NÜÜB Co. agree to submit to the exclusive jurisdiction of the federal or state courts located in Boston, Massachusetts, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator may award damages to either party individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy such party’s individual claim.
D. Fees. If we initiate an arbitration against you, we will pay all costs associated with the arbitration, including the entire filing fee. If you are the party initiating an arbitration, you will be responsible for the nonrefundable initial filing fee and other applicable fees, as required by ADR Services or NAM. ADR Services sets forth fees for its services, which are available at https://www.adrservices.com/rate-fee-schedule/. NAM permits any person to request information as to fees for its services at https://www.namadr.com/info-request-form/?request_type=Standard_Fees_and_Costs. If the arbitrator finds that either the substance of a claim or the relief sought violate the representation requirements of Federal Rule of Civil Procedure 11, to the extent permitted by law, the arbitrator shall have the same power to award sanctions consistent with that rule.
E. Settlement Offers and Offers of Judgment. At least ten (10) calendar days before the date set for an arbitration hearing with respect to a Dispute, you or we may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitrator, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever is first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs (including all fees paid to the arbitral forum) from the time of the offer.
F. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with NÜÜB Co., including any revocation of consent or other action by you to end your engagement with or use of any NÜÜB Co. Products or any communication with us.
G. Opt-out. You may opt out of this arbitration agreement via email. If you do so, neither party can force the other party to arbitrate. To opt out, you must contact us no later than thirty (30) calendar days after first becoming subject to this arbitration agreement; otherwise you shall be bound to arbitrate Disputes on a non-class basis in accordance with this Agreement. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. Your opt-out notice must include your name and address, the email address you used to set up your NÜÜB Co. account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement (and, if applicable, that you want to opt out of the class action waiver).
If you have questions or concerns about the meaning of any provision of this arbitration agreement, please feel free to seek the counsel of an attorney. We thank you for understanding why it is important that we agree on the process for addressing disputes.
9. Additional Provisions
A. Choice of Forum. You agree that any action at law or in equity arising out of or relating to this Agreement that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in Boston, Massachusetts, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
B. Choice of Law. This Agreement is governed by and construed in accordance with the laws of the State of Massachusetts and the laws of the United States, without giving effect to any conflict of law principles.
C. Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
D. Survival. The provisions of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination, including but not limited to the restrictions, disclaimers, limitations, our rights to use submitted content, and rules regarding dispute resolution in Section 2, 3, 6, 7 and 8 as well as the general provisions in this Section 9.
E. Waiver. No waiver of any provision of this Agreement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.