Terms of Service
For Master Subscription Agreement
The brand “Nexkey” provides (1) the Nexkey website located at www.nexkey.com, and all associated sites linked to www.nexkey.com (each a “Site”), (2) services accessible through the Sites (“Web Apps”), (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), and (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), all for use in conjunction with Nexkey hardware products (“Products”) and in other ways that Nexkey provides. Some Nexkey Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, Mobile Apps, and Subscription Services.
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of, the Services and Products. Please read these Terms carefully. They require the use of mandatory binding arbitration to resolve disputes rather than jury trials or group litigation. Please follow the instructions in the Dispute Resolution and Arbitration Section (section 13) below if you wish to opt out of this provision. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Services or Products and any person or entity who creates an Account (as defined in Section 2(a) below) and accepts these Terms, including Owners and Authorized Users (as defined in Section 2(b) below). These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP OR MOBILE APP, OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES) OR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES AND PRODUCTS, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. Overview, Eligibility, Customer Service, Term and Termination
1.1 Overview and Relation to Other Agreements. These Terms govern your use of the Services and Products. Your purchase of any Product is governed by the limited warranty provided with that Product (“Limited Warranty”) and may further be governed by the Terms & Conditions of Sale. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by the End User License Agreement. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms or rules and the Privacy Policy (“Privacy Policy”) are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services and Products.
1.2 Eligibility. (i) You may use the Services and Products only if you have the legal capacity to form a binding contract with Nexkey (except subject to the provisions of clause (1)(b)(ii) below), you accept these Terms through a Site, Web App or Mobile App, or by accessing or using the Services or Products, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations. Only individuals aged 18 and older are permitted to act as Owners of Nexkey Accounts. (ii) If you are an Authorized User, you represent and warrant that you are over the age of 13 (or equivalent minimum age in the jurisdiction where you reside), and in the event you are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside) and the age of majority in the jurisdiction where you reside, that you will only use the Services and Products under the supervision of a parent or legal guardian who agrees to be bound by these Terms on your behalf. Any use or access to the Services and Products by individuals under the age of 13 (or the equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms. The Services and Products are not available to any users previously prohibited from using the Services and Products by Nexkey.
1.3 Customer Service. If you have any questions or concerns regarding the Products, the Services or these Terms, please contact Nexkey. You understand and agree that customer service and any customer care and support offered and provided by Nexkey is not a locksmith, a 911 service or dispatch center, an emergency service provider or dispatch service, or a lifesaving solution for people at risk in their office, garage, building, home or other locked space or enclosure or otherwise. PLEASE DO NOT CONTACT CUSTOMER SERVICE OR ANY CUSTOMER CARE AND SUPPORT OFFERED BY NEXKEY WITH ANY LIFE/SAFETY EMERGENCY, MEDICAL EMERGENCY, OR ANY OTHER EMERGENCY. IF YOU HAVE AN EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911 OR APPROPRIATE EMERGENCY RESPONSE SERVICE.
1.4 Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services or Products, or until terminated in accordance with the provisions of these Terms. At any time, Nexkey may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Nexkey, in good faith, believes that you have used the Services or Products in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with Nexkey and accept these Terms.
1.5 Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
2. Accounts
2.1 Your Account. To use certain Services and Products, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services and Products will not violate any US or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use strong passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify Nexkey of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. Nexkey is not liable for any loss or damage arising from your failure to comply with the above requirements.
2.2 The individual who creates a Billing Account is the “Owner” of that Account and is the Owner of the Products associated with that Account. Individuals with administrator privileges as well as end users who are authorized to use the Services to access an Owner’s workspace and locked items contained therein (which may include, but is not limited to, physical doors and locked cabinets) are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products (for example, an Authorized User who is an end user can open and close locks and an Authorized User with administrator privileges can manage who is entitled to do the same). Authorized Users may also have the ability to view information (including personal information and audit trail of who has opened and closed locks) and content pertaining to utilization of the Services (for example, an Authorized User l can view the Services history). Authorized Users are responsible for their own actions in connection with the Products and Services. Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to use of the Owner’s Products, Services and Account. If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that the Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set out above. As a result, if you are an Owner, you should only authorize those individuals whom you trust to access your Account, Products and Services.
3. Access to Services
3.1 Access and Use. Subject to these Terms, Nexkey hereby grants you a non-transferable, non-exclusive right (without the right to sub-license) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of, using, controlling and monitoring the Products you own or are authorized to control and monitor or otherwise accessing a service explicitly provided by Nexkey for your use (the “Permitted Purpose”), (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad or Android smartphone) and solely for the Permitted Purpose, and (iii) accessing the Sites solely for the Permitted Purpose.
3.2 Automatic Software Updates. Nexkey may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Products. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Products and you agree to install any Updates that Nexkey provides promptly. Your continued use of the Services and the Products is your agreement – (i) to these Terms with respect to the Services and Products, and (ii) to the End User License Agreement with respect to updated Product Software; and (iii) any change or updates that Nexkey may make to these Terms or the End User License Agreement over time.
3.3 Third-Party Products and Services. Nexkey-provided interface to Third-Party Products and Services. Over time, Nexkey may provide the opportunity for you to interface the Products and Services to one or more third-party products and services, through and using the Services, for example through the Works with Nexkey platform (“Third-Party Products and Services”). You decide whether you want to interface, and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface and is revocable by you at any time. Once your consent is given for a particular Third-Party Product and Service, you agree that Nexkey may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface that you have Authorized. After this information is shared with the particular Third-Party Product and Service, its use will be governed by the third party’s privacy policy and not by Nexkey’s privacy documentation. You acknowledge and agree that Nexkey makes no representation or warranty about the quality or safety of any Third-Party Products or Services or the interface with Product and Services. Accordingly, Nexkey is not responsible for your use of any Third-Party Product or Service, or any personal injury, death, property damage (including, without limitation, to your office, garage, building, home or other locked space or enclosure), or other harm or losses arising from or relating to your use of any Third-Party Products or Services. You should contact the third party with any questions about their Third-Party Products and Services.
3.4 Content and User Submissions. Certain materials may be displayed or performed on the Services (including, but not limited to, text, graphics, articles, photographs, video, images and illustrations (“Content”)). The Content also includes information that you and other users provide us with in the course of using the Services (collectively, “User Submissions”), which Nexkey may use to provide, maintain and improve the Services. Some Content may be visible to others (for example, the Services could allow you to upload, post or otherwise share video content). You may also post feedback, comments, questions or other information on the Sites. You are solely responsible for all Content that you upload, post, email, transmit or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Nexkey all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Services pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third-party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third-party right. Nexkey reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Nexkey are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
3.5 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services or Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services or Products; (iii) you agree not to access the Services or Products in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services or Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Nexkey; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services or Products. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
3.6 Open Source. Certain items of independent, third-party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open-source licenses (“Open-Source Software”). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user license for such Open-Source Software. In particular, nothing in these Terms restricts your right to copy, modify and distribute such Open-Source Software that is subject to the terms of the GPL.
3.7 Privacy. Please review the Privacy Policy for Nexkey Web Sites and Nexkey Products and Services. These documents describe practices regarding the information that you or Nexkey may collect from users of the Products and Services, including any Content or User Submissions.
3.8 Security. Nexkey implements security measures designed to protect your personal information held by Nexkey. However, Nexkey cannot guarantee that unauthorized third parties will never be able to defeat Nexkey’s security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
3.9 Modification. Nexkey reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that Nexkey will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
3.10 Access Outside Certain Countries. Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside a country in which Nexkey supports the Product and Services (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in a non-Target Country and that some, or all, of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Nexkey accepts no responsibility or liability for any damage or loss caused by your access or use of the Sites or Nexkey Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites or the Services.
4. Agreed Usage and Limitations of Nexkey Services and Products
4.1 Intended Use of Nexkey Services. The Services are intended to be accessed and used for non-time-critical information and control of Nexkey Products. While Nexkey aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Nexkey’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Nexkey is not responsible for any damages allegedly caused by the failure or delay of the Services.
4.2 No Life Safety or Critical Uses of the Products and Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with Third-Party Products or Services, are not certified for emergency response. Nexkey makes no warranty or representation that use of the Products or Services will affect or increase any level of safety. YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL NEXKEY DISPATCH A LOCKSMITH OR EMERGENCY SERVICES TO YOUR OFFICE, HOME, PLACE OF BUSINESS OR LOCATION IN THE EVENT OF AN EMERGENCY.
4.3 Reliability of Services. You acknowledge that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband Internet access, or cellular service, for which Nexkey is not responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Products and Services being unreliable or unavailable for the duration of the Service Interruption. Nexkey cannot and does not guarantee that you will receive notifications within any given time, or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS OF YOUR NEXKEY PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM. There is no way for Nexkey to provide specific information relating to a situation in your office, building, home, location or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
4.4 Service Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Nexkey does not offer any specific uptime guarantee for the Services.
4.5 System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your office, building, home or location that is positioned to communicate reliably with the Products; (ii) an Account; (iii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); (iv) always-on broadband Internet access in the office, building, home or location with bandwidth sufficient to support the Products you use; (v) the properly installed Products – which are sold and installed separately; and (vi) other system elements that may be specified by Nexkey. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly installed and configured to work with the Products and Services. In addition, you acknowledge that Nexkey may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Nexkey Products connected to the same Nexkey account and enable certain features.
4.6 Product Information. The Services provide you with information (“Product Information”) regarding the Products in your office, building, home or location. All Product Information is provided “as is” and “as available.” Nexkey cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the office, building, home or location.
4.7 All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom (or from whose account) such Content originated. Nexkey will not be liable for any errors or omissions in any Content. Nexkey cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. In addition, Nexkey cannot guarantee the authenticity of any data that anyone may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Nexkey cannot control and has no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
4.8 You warrant, represent and agree that you will not contribute any Content or otherwise use the Services or Products in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Nexkey; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) risks the security of your Nexkey Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (xii) denigrates or disrupts any network capacity or functionality; or (xiii) engages in remote monitoring to provide remote monitoring, key management, security or other professional services for anyone.
4.9 Privacy and Data Protection Laws. Please see Nexkey’s Privacy Policy for Nexkey Products and Services. You agree that you (and not Nexkey) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services.
4.10 Installation, test and use. It is your responsibility to install and use the Products and Services pursuant to the applicable manual and instructions. IF A PRODUCT IS NOT PROPERLY INSTALLED, OR IF A PRODUCT IS HINDERED OR OBSTRUCTED BY WALLS, FURNITURE, PERSONAL PROPERTY OR OTHER THINGS, YOU MAY EXPERIENCE OPERATIONAL FAILURES. It is your responsibility to test the Products once installed to be sure the Products (and any related components and peripherals) are functioning and communicating as intended and designed, and then regularly test and maintain the Products after installation.
4.11 Product Batteries. It is your responsibility to replace any batteries for the Products, when necessary. YOU UNDERSTAND AND AGREE THAT THE PRODUCTS MAY NOT FUNCTION OR PROPERLY FUNCTION IF BATTERIES NEED REPLACEMENT; PLEASE CHECK THEM REGULARLY.
5. Limitations of Nexkey Services Due to Third Parties
5.1 General. Nexkey Services may rely on or interoperate with third-party products and services. These third-party products and services are beyond Nexkey’s control, and their operation may impact on, or be impacted by, the use and reliability of the Nexkey Services. You acknowledge and agree that: (i) the use and availability of the Services in such situations is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time and they may impact on the way that the Nexkey Services operate, and (iii) Nexkey is not responsible for damages and losses due to the operation of these third-party products and services.
5.2 Third-Party Service Providers Used By Nexkey. You acknowledge that Nexkey uses third-party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization and communication through Amazon Web Services and mobile device notifications through mobile operating system vendors and mobile operators. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THIRD-PARTY SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE PRODUCTS AND SERVICES.
5.3 Equipment, ISP and Operator. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, office, building, structure or home wiring, Wi-Fi network, Bluetooth connection and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”) and (iii) your mobile device operator (“Operator”). You acknowledge that you are responsible for all fees charged by your ISP and Operator in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service and other policies of your ISP and Operator.
5.4 App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g., the Google Play Store from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and Nexkey and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Mobile Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
5.5 Third-Party Website Links and Referrals. The Sites may contain links to other websites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under Nexkey’s control. Nexkey provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
5.6 Authorized Users. Nexkey is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to their use of the Services.
5.7 Release Regarding Third Parties. Nexkey is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Products and Services, Third-Party Sites, Referred Vendors, Equipment, ISP and Operators. Nexkey hereby disclaims, and you hereby discharge, waive and release Nexkey and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.
6. Ownership and Intellectual Property - Nexkey is a brand fully owned by Infinity Software Services.
6.1 Nexkey Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Product, Product Software and Services (i.e., the Sites, Web Apps and Mobile Apps) are owned by Nexkey or its affiliates or Nexkey’s licensors. Your possession, access to and use of the Product, Product Software and Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Nexkey, and its affiliates and licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
6.2 Limits. You may not use the content of the Services in any other public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, including your own website, without the written consent of Nexkey. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, Nexkey retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein.
6.3 Feedback. You may choose to or Nexkey may invite you to submit comments, suggestions or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are non-confidential, voluntary, gratuitous, unsolicited and without restriction, and will not place Nexkey under any fiduciary or other obligation. Nexkey may use, copy, modify, disclose, publish or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Nexkey does not waive any rights to use similar or related ideas previously known to Nexkey, developed by its employees or obtained from other sources.
6.4 User Submissions. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you with the Services and as directed by you. You also hereby do and shall grant to each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that Nexkey retains the right to reformat, modify, create derivative works of, excerpt and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Nexkey does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
7. INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD NEXKEY AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “NEXKEY PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE NEXKEY PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE PRODUCTS OR SERVICES; (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS; (C) ANY USER SUBMISSIONS OR FEEDBACK YOU PROVIDE; OR (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGEMENTS (INCLUDING PAYMENT OF THE NEXKEY PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE NEXKEY PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE NEXKEY PARTIES, OR MADE BY ANY OF THE NEXKEY PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE NEXKEY PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE NEXKEY PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE NEXKEY PARTIES, OR GROSS NEGLIGENCE OF THE NEXKEY PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, AN UNAUTHORIZED USER, GUEST, TENANT, EMPLOYEE OR VISITOR. Nexkey reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Nexkey, and you agree to cooperate with Nexkey’s defense of such claims. You agree not to settle any such claim without Nexkey’s prior written consent. Nexkey will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. Warranty Disclaimers
8.1 THE WARRANTIES FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE END USER LICENSE AGREEMENT, RESPECTIVELY.
8.2 THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND NEXKEY, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
8.3 NEXKEY, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEXKEY OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
8.4 NEXKEY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE WORKS WITH NEXKEY PLATFORM), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND NEXKEY WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
8.5 NEXKEY MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND NEXKEY WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. NEXKEY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
8.6 THE SERVICES MAY PROVIDE YOU INFORMATION REGARDING YOUR PRODUCTS (“PRODUCT INFORMATION”) OR OTHER ITEMS. THE TYPE OF ITEM THAT MAY BE CONNECTED TO YOUR PRODUCT (IF ANY) MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE ,“AS IS” AND “AS AVAILABLE.” NEXKEY DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE.
9. Other Disclaimers
WHEN YOU INSTALL, SETUP OR USE THE PRODUCTS AND SERVICES YOU ARE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR PRODUCTS AND SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE PRODUCTS AND SERVICES, AND SETTING OR CHANGING DEFAULTS.
YOU UNDERSTAND AND AGREE THAT SOME OF THE PRODUCTS AND SERVICES MAY HAVE NOTIFICATION OR SIGNALLING FEATURES AND FUNCTIONALITY. THOSE PRODUCTS AND SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS, SUCH AS BURGLARIES, ROBBERIES, THEFTS, ASSAULTS, ATTACKS, AND OTHER CRIMINAL ACTIVITIES. FURTHER, YOU UNDERSTAND AND AGREE THAT THOSE PRODUCTS AND SERVICES MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES, AND, THEREFORE, NEXKEY MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) THAT THOSE PRODUCTS AND SERVICES WILL SO AVERT OR MINIMISE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
10. Waiver of Subrogation
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE NEXKEY AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS,OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
11. Limitation of Liability
11.1 Nothing in these Terms and, in particular, within this “Limitation of Liability” section, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.
11.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL (A) NEXKEY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF NEXKEY KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) NEXKEY’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE SERVICES OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED ONE (1) TIME THE FEES ACTUALLY PAID BY YOU TO NEXKEY OR NEXKEY’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). NEXKEY DISCLAIMS ALL LIABILITY OF ANY KIND OF NEXKEY’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL NEXKEY BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
11.3 YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 11 SHALL APPLY EVEN IF NEXKEY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF NEXKEY OR GROSS NEGLIGENCE OF NEXKEY IN THOSE STATES THAT DO NOT PERMIT LIMITATIONS OF LIABILITY FOR GROSS NEGLIGENCE.
12. Fees and Payment
12.1 You, the Customer, (“Customer”) wish to use Nexkey’s service. Customer has agreed to purchase and pay for Nexkey’s service either directly, or through a third-party installer (“Installer”) and Nexkey has agreed to provide the Purchased Services to Customer subject to the terms and conditions of this agreement.
12.2 Third Party Providers
12.2.1 Customer acknowledges that a third-party installer (“Installer”) may from time to time make available to Customer third-party products and services. Any acquisition by Customer of such non-Nexkey products or services, and any exchange of data between Customer and Installer, is solely between Customer and Installer. Nexkey does not warrant or support non-Nexkey products or services, whether or not they are designated by Nexkey as “certified.”
12.3 Fees. Customer shall pay all fees for the Purchased Services to Installer in accordance with Customer's contract with Installer. The installer shall pay Nexkey for the Purchased Services provided to Customer. Except as otherwise specified herein: (1) fees are based on services purchased and not on actual usage; and (2 )payment obligations are non-cancelable during the Subscription Term and fees paid are non-refundable. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof.
12.4 Non-Payment by Installer. In the event Installer fails to pay Nexkey for the Purchased Services for a period of 60 days, Nexkey shall invoice Customer directly for the Purchased Services, and Customer shall, upon thirty (30) days written notice from Nexkey, begin paying Nexkey directly for the Purchased Services and continue to do so until notified by Nexkey in writing that Customer may resume payment to Installer. Prior to Nexkey invoicing Customer, Nexkey shall use all commercially reasonable efforts to work with Installer to remedy the non-payment of the invoice.
12.5 Overdue Charges. If Nexkey does not receive payment directly from Customer as set forth in Section 12.4 By the due date, then Nexkey may, without liability to Customer: (1) disable Customer's password, account and access to all or part of the Purchased Services and Nexkey shall be under no obligation to provide any or all of the Purchased Services while the invoice(s) concerned remain unpaid; and (2) accrue interest on such due amounts at an annual rate equal to the maximum rate allowed by law in the jurisdiction where Customer is located, commencing on the due date and continuing until fully paid, whether before or after judgment.
12.6 Account reassignment. If the installer is in breach of their agreement with Nexkey, as outlined in their agreement, Nexkey has the right to reassign the customer account to another installer. This is including but not limited to non-payment as outlined in section 12.4.
13. DISPUTE RESOLUTION AND ARBITRATION/CLASS ACTION WAIVER/JURY TRIAL WAIVER/WAIVER OF PUNITIVE DAMAGES
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
13.1 Arbitration. Nexkey and you agree to arbitrate all disputes and claims that arise from or relate to these Terms or the Services or Products in any way, except for claims arising from bodily injury. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
• claims arising out of or relating to any aspect of the relationship between us that is created by or involves these Terms or the Services or Products, regardless of the legal theory;
• claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
• claims that arose before you accepted these Terms (such as claims related to disclosures or the marketing of the Services or Products, or the process for seeking approval to use the Services or Products);
• claims that may arise after the termination of your use of the Services or Products or any agreement between us; and
• claims brought by or against Nexkey’s respective subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns of these entities, you, and Nexkey.
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Nexkey may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT NEXKEY AND YOU ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
13.2 Notice of Disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Nexkey should be sent to: Infinity Software Services Legal Department 4202 Beltway Dr Addison TX 75001, USA. Nexkey will send notice to you at the email and/or mailing addresses associated with your account. Your notice to Nexkey must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If Nexkey is unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or Nexkey may commence arbitration.
13.3 Arbitration Procedures. The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and Nexkey agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Nexkey Services. If the value of your claim is USD $10,000 or less, Nexkey agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds USD $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Nexkey and Nexkey users. The arbitrator can award the same individualized damages and relief that a court can award. Judgement on the award may be entered by any court having jurisdiction.
13.4 Costs of Arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1-800-778-7879). Nexkey will pay all AAA filing, administrative and arbitrator fees for any arbitration that Nexkey commences. If you provided Nexkey with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is USD $75,000 or less, Nexkey will pay your share of any such AAA fees. If the value of your claim exceeds USD $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Nexkey to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Nexkey for amounts that Nexkey paid on your behalf.
13.5 No Class Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NEXKEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
13.6 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in Section 13, you must notify Nexkey in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Nexkey at the following address: Infinity Software Services Legal Department 4202 Beltway Dr Addison TX 75001. Subject to Section 13(g) below, if you do not notify Nexkey in accordance with this Section 13(f), you agree to be bound by the arbitration and group litigation waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance.
Such notification must include: (a) your name, (b) your Nexkey account email address, (c) your mailing address and (d) a statement that you do not wish to resolve disputes with Nexkey through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Nexkey or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Nexkey.
13.7 Future Changes to Arbitration Provision. If Nexkey makes any changes to the Dispute Resolution and Arbitration Section of these Terms (other than a change to the address at which Nexkey will receive notices of dispute, opt-out notices or rejections of future changes to the Dispute Resolution and Arbitration Section), you may reject any such change by sending us written notice within 30 days of the change to Infinity Software Services, Legal Department 4202 Beltway Dr Addison TX 75001, USA. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration Section of these Terms if you had properly opted out of the arbitration and group litigation waiver provisions in this Section 13 within the first 30 days after you first accepted these Terms. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section 13, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
14. Digital Millennium Copyright Act
14.1 If you are a copyright owner or an agent thereof and believe that any Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Nexkey’s Copyright Agent with the following information in writing (see 17 U.S.C §512[c][3] for further details): (i) A physical or electronic signature of a person Authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) A statement that you have a good-faith belief that use of the material in the manner complained of is not Authorized by the copyright owner, its agent or the law; and (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that you are Authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.2 Nexkey’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – Attention Legal, 4202 Beltway Dr Addison TX 75001, USA; info@nexkey.com. For clarity, only DMCA notices should go to the Copyright Agent. You acknowledge that if you fail to comply with all the requirements of this Section 14.2, your DMCA notice may not be valid.
14.3 Counter-Notice. If you believe that the Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) Your physical or electronic signature; (ii) Identification of the Content that has been removed, or to which access has been disabled, and the location at which the Content appeared before it was removed or disabled; (iii) A statement that you have a good-faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content; and (iv) Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the state and federal courts in Dallas County Texas, USA, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
14.4 If a counter-notice is received by the Copyright Agent, Nexkey may send a copy of the counter-notice to the original complainant informing that person that they may replace the removed Content or cease disabling it in 10 working days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 working days or more after receipt of the counter-notice, at Nexkey’s sole discretion.
15. Mobile Apps
15.1 Nexkey makes available Mobile Apps to access the Services via a mobile device. To use the Mobile Apps you must have a mobile device that is compatible with the mobile service. Nexkey does not warrant that the Mobile Apps will be compatible with your mobile device. Your license rights with respect to the Mobile Apps are as set forth in Section 3 above. You acknowledge that Nexkey may from time to time issue upgraded versions of the Mobile App, and may automatically electronically upgrade the version of the Mobile App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of a Mobile App or any copy thereof, and Nexkey and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile App (and any copy of the Mobile App). Standard carrier data charges may apply to your use of the Mobile App.
15.2 The following additional terms and conditions apply with respect to any Mobile App that Nexkey provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
● You acknowledge that these Terms are between you and Nexkey only, and not with Apple, Inc. (“Apple”).
● Your use of Nexkey’s iOS App must comply with Apple’s then-current App Store Terms of Service.
● Nexkey, and not Apple, are solely responsible for Nexkey’s iOS App and the Services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Nexkey’s iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Nexkey’s iOS App.
● You agree that Nexkey, and not Apple, is responsible for addressing any claims by you or any third-party relating to Nexkey’s iOS App or your possession and/or use of Nexkey’s iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Nexkey as provider of the iOS App.
● You agree that Nexkey, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Nexkey’s iOS App or your possession and use of Nexkey’s iOS App.
● You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
● You agree to comply with all applicable third-party terms of agreement when using Nexkey’s iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Nexkey’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
15.3 The following additional terms and conditions apply with respect to any Mobile App that Nexkey provides to you designed for use on an Android-powered mobile device (an “Android App”):
● You acknowledge that these Terms are between you and Nexkey only, and not with Google, Inc. (“Google”).
● Your use of Nexkey’s Android App must comply with Google’s then-current Android Market Terms of Service.
● Google is only a provider of the Android Market where you obtained the Android App. Nexkey, and not Google, is solely responsible for Company’s Android App and the Services and Content available thereon. Google has no obligation or liability to you with respect to Company’s Android App or these Terms.
● You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company’s Android App.
16. General
16.1 Governing Law. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of Texas without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The courts in some states and countries may not apply Texas law to some types of dispute. If you reside in one of those states or countries, then where Texas law is excluded from applying, your state’s or country’s laws will apply. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR DALLAS COUNTY, TEXAS AND THE NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, UNLESS SUCH CLAIM OR DISPUTE IS REQUIRED TO BE ARBITRATED AS SET FORTH IN AN ABOVE SECTION.
16.2 Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Nexkey may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
16.3 Entire Agreement/Severability. These Terms constitute the entire agreement between you and Nexkey regarding the subject matter hereof. Any failure by Nexkey to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
16.4 Survivability. The obligations that by their terms or nature continue and survive, including the warranty disclaimer, consequential damages waiver, limitation on liability and indemnification provisions and general terms, will survive any expiration or termination of these Terms.
16.5 Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Nexkey’s prior written consent. These Terms may be assigned by Nexkey without restriction. These Terms are binding upon any permitted assignee.
16.6 Notifications. Nexkey may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy or posting of such notice on www.nexkey.com. Nexkey is not responsible for any automatic filtering that you or your network provider may apply to email notifications.
16.7 Disclosures. Infinity Software Services address is 4202 Beltway Dr Addison TX 75001 . If you are a resident of Texas, you may report complaints to the District Attorney of Texas by contacting them, at https://www.texasattorneygeneral.gov/consumer-protection/file-consumer-complaint or by telephone at 800-621-0508.
16.8 Trademark Information. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Nexkey or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Nexkey or such respective holders. Nexkey reserves the right to alter product and services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or related documents.
* * * *
Rev 11/23