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Nielsen-Kellerman Terms of Service and End User License Agreement ("EULA")

Last updated: September 23, 2024

These Terms of Service and End-User License Agreement ("Terms") govern your relationship with Nielsen-Kellerman Co. and/or affiliated subsidiary companies (collectively, "NK", "we", "us" or "our") with regards to your use and interaction with any devices or products sold by, websites operated by, mobile applications published by, and/or social media groups or pages ("Social Media") administered by NK, together with any software or service(s) related to any of the foregoing (all of the foregoing, collectively, the "Services"). As of the date of these Terms, the Services include, but are not limited to, the following:

Devices (the "Devices"):

Kestrel® Weather and Environmental Instruments, Meters and DROP Data Loggers

KestrelMet™ Weather Stations and Sensors

Ambient® Weather Stations and Environmental Sensors

RainWise® Weather Stations, Rain Gauges and Environmental Sensors

Kestrel Ballistics® Meters, Displays and Timers

MagnetoSpeed® Chronographs, Barrel Coolers and Target Hit Indicators

Nielsen-Kellerman®/NK® Sports Meters, Watches, Amplifiers, Speakers, and Wiring

Blue Ocean Rugged Megaphones®

Sites (the "Sites"):

kestrelinstruments.com

kestrelmeters.com

heatstress.com

kestrelmet.com

ambientweather.com

ambientweather.net

rainwise.com

rainwise.net

kestrelballistics.com

hornadykestrel.com

magnetospeed.com

nksports.com

blueoceanmegaphone.com

nkhome.com

Applications (the "Apps"):

Kestrel® LiNK

Kestrel® LiNK Ballistics®

NK® LiNK Logbook

Ambient Weather®

AWNet

MagnetoSpeed® XFR

MagnetoSpeed® T1000 Tuner

These Terms apply to the use of all Services regardless of whether they post a link to these Terms. We make our Services available to you subject to these Terms, which include our Privacy Policy, other policies published on or in the Services, and any guidelines, rules, additional terms or disclaimers that may be posted and updated on the Services or on notices we send you. Your use of our Devices is also subject to any additional terms and conditions that are included with the Device at the time of purchase (including, without limitation, any written materials that accompany the Device).

Please read these Terms carefully before proceeding! By clicking the "I Agree" button; accessing, uploading, downloading, posting to or using any Site, App and/or Social Media; or by indicating your assent by creating an account, clicking "sign up" or any similar mechanism; you are agreeing to be bound by these Terms. If you do not agree to these Terms, do not click on the "I Agree" button or download or use the Service.

YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTION 11 BELOW. THESE TERMS ALSO CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 17 THAT AFFECT YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE SERVICES.

Overview

  • Privacy: It's important so please review our Privacy Policy.
  • Cancelation:It's easy for you to cancel and deactivate. We also reserve the right to cancel your account for inappropriate conduct and, notwithstanding anything in these Terms or elsewhere to the contrary, we make no guaranty that we will continue to provide or support any of our Services.
  • Content: It's yours, but you are giving us a right to use it, as further described below.
  • Feedback: We like your suggestions and feedback, and by offering any suggestions or feedback to us, you agree that we can use it without obligation to you.
  • No Warranty: We provide our apps and services "As-Is", without warranty and your use is at your own risk.
  • Arbitration: You agree to arbitrate disputes between us.
  • Contact: We want you to be able to reach us if you have questions or need help.

1) Using our Services

If you access or use the Services on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms; (ii) you have read and understand these Terms; and (iii) you agree, on behalf of the party that you represent, to these Terms. If you don't have the legal authority to bind your employer or the applicable entity, you may not accept these Terms on their behalf or access or use the Services on their behalf.

If you access or use the Services on behalf of anyone else, including an employer, a company, or a club, you represent that you have authority to accept these Terms on that person's behalf and that these Terms are fully binding on such person. In such case, the term "you" means to such other person.

By creating an account or registering for the Services, you represent that you are at least 18 years old. To the extent that you are a parent or guardian of an individual between the ages of 13 and 18 who wishes to utilize our Services, you agree that such individual between the ages of 13 and 18 may only utilize the Services via your account with your express authorization, and you agree to provide evidence of such authorization to NK upon our request from time to time. You may not allow any use of the Services by any children under the age of 13.

Additional terms and conditions may apply to purchases of specific Devices or other goods or services we make available to specific portions or features of the Services, and to subscriptions or licenses with entities with which you may be employed or affiliated. If there is a conflict between these Terms and the terms that are posted for or applicable to a specific goods or services or a specific portion of the Services, for any service offered on or through the Services, or set forth in a separate subscription or license agreement, the latter terms shall control with respect to your use of that portion of the Services, the specific goods or services, or the subscribed or licensed product.

Some of our Services are available on mobile devices or may utilize SMS/iMessage, which may cause you to incur SMS or data charges with your wireless provider. Please be aware that we have no control over these charges, and if you do not wish to be charged, you should stop using the mobile or SMS/iMessage features (as applicable).

2) Registration

Certain Services require registration. You represent that all information you provide about yourself for registration purposes ("Registration Data") is true, accurate, current and complete information and you agree to keep such information up to date. You may not register for the Services if you are under 18 years old (or the age of majority in your jurisdiction of residence). You agree that we may use your Registration Data to provide Services to you and as otherwise set forth in these Terms and in our Privacy Policy. If we have grounds to suspect that such information is inaccurate or not current, we may suspend or terminate your account and access to Services.

3) Security and System Reliability

Keep your password secure. Maintaining the confidentiality of your passwords and access to your devices is solely your responsibility and you are responsible for all activities that occur under your account or from your devices. We do not guarantee absolute security of the Services, or of your account and your Submissions (as defined below), including personal information you provide, and we cannot guaranty that our security measures will prevent unauthorized persons from accessing the Services or its contents. Except as prohibited by applicable law, you waive all claims against us for any such unauthorized access. You agree to immediately notify us at info@nkhome.com of any unauthorized use or your account or password, or any other breach of security. You acknowledge that your use of the Services is at your own risk.

You may register for or log-in to your account via a third-party service or network, such as Facebook or Google. If you do so, you hereby authorize us to pre-populate the registration and other relevant information fields of your account and/or to use such third-party credentials to log you into your account. If you connect your account to a third-party service or network, you agree to comply with any terms, conditions and/or policies applicable to such third-party service or network.

We use commercially reasonable efforts to make the Services available to you and to maintain saved information. However, you agree that we shall not be liable for any lost, altered, or corrupted data or information, or for any non-availability of the Services.

4) Payments and Fees

To pay any fee, you must designate and provide information about your preferred payment method (e.g., credit card, Paypal, iTunes or Google Play, etc.) ("Payment Method"). If you provide your payment information, you authorize us and our third-party service providers, payment card networks and payment processors, to receive, store and encrypt your payment information. You may switch to a different Payment Method or update your information by logging into your Services account. If you signed up through the Google Play or iTunes store, you would need to change your Payment Method through the corresponding third-party account. No refunds or credits will be provided by us other than as set forth in these Terms. Interest will be charged on all unpaid delinquent amounts at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lesser. You agree to reimburse us for all collection agency fees, attorneys' fees and other costs we may incur to collect delinquent amounts you owe to us. If your payment provider determines that there are fraudulent charges on your account resulting from use of your Payment Method at the Services, please contact us immediately at info@nkhome.com or by calling +1 610-447-1555.

Certain features and functionalities of the Services may require payment of additional subscription fees ("Fees"). All Fees are subject to applicable taxes and are subject to change at any time upon reasonable notice. Fees will be billed in advance automatically at the start of the monthly or annual period, as applicable, and, if you so consent when subscribing, will auto-renew until your subscription is downgraded or terminated. You may cancel your subscription at any time as described below. Unless otherwise required by applicable law, Fees paid in advance are not refundable.

5) Paid Subscription Services

Paid subscription services may start with a free trial. If you begin your subscription with a free trial, we will begin billing your Payment Method for monthly Fees at the end of the free trial period unless you cancel your subscription prior to the end of the free trial period. Your Payment Method will be authorized for up to approximately one month of paid Services as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method if you complete the cancellation process prior to the end of your free trial period.

You may cancel your paid subscription at any time by logging into your Services account and visiting your "Account" page. If you signed up through the Google Play or iTunes store, you may cancel your subscription by downgrading through the corresponding store. The cancellation of a subscription will go into effect at the end of your current billing cycle. When your paid subscription ends, your account will revert to a free subscription. Terminating a paid subscription may result in the permanent deletion of content you have posted and/or your access to other content.

6) Deactivation

You may deactivate your account at any time by logging into your Services account and selecting "Deactivate". At your request, we will delete your personally identifiable information, except as otherwise required by applicable laws. To do so, please contact us at privacy@nkhome.com or call us at +1 610-447-1555

7) Content - Limitations on Use

All content contained on or accessed from the Services, including text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, videos, images, applications, programs, computer code and other information (collectively, "Content"), including but not limited to the design, layout, "look and feel" and arrangement of such Content, is owned by NK or its licensors and is protected by copyright, trademark and other intellectual property and unfair competition laws.

You may print or download Content from the Services for your own personal, non-commercial, informational or scholarly use, provided you keep intact all copyright and other proprietary notices.

Except solely as set forth in the previous sentence, you may not copy, display, distribute, modify, publish, reproduce, store, transmit, post, translate or create other derivative works from, or sell, rent or license all or any part of the Content (other than your Submissions), products or services obtained from the Services in any medium to anyone, except as otherwise expressly permitted under these Terms, the relevant license or subscription agreement or as authorized in writing by us.

You may not reverse engineer, disassemble, decompile or translate any software in the Content, or otherwise attempt to derive the source code of such software, except to the extent expressly permitted under applicable law, without our prior written permission. You may not engage in systematic retrieval of Content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory without our prior written permission.

You may not use any robots, spiders, crawlers or other automated downloading programs, algorithms or devices, or any similar or equivalent manual process, or otherwise take any direct or indirection action to: (i) continuously and automatically search, scrape, extract, deep link or index any Content; (ii) harvest personal information (other than your personal information) from the Services; (iii) cause harm or disruption to the working of the Services or any other person's use of the Services; (iv) engage in fraudulent, deceptive or illegal conduct; or (v) impose an unreasonable load on our systems. If the Services contains robot exclusion files or robot exclusion headers, you agree to honor them and not use any device, software or routine to bypass them. You may not attempt to gain unauthorized access to any portion or feature of the Services, any other systems or networks connected to the Services or to any NK server, or any of the products or services provided on, accessed from or distributed through the Services. You may not probe, scan or test the vulnerability of the Services or any network connected to the Services or breach the security or authentication measures on the Services, or any network connected to the Services.

You may not use the Services to publish or distribute any information (including software or other content) which is illegal, which violates or infringes upon the rights of any other person, which contains excessive or unsolicited commercial messages or constitutes spam, which is defamatory, abusive, hateful, profane, pornographic, threatening, vulgar, or incites violence, which harasses or bullies others, which contains nudity or gratuitous violence, which solicits other people's login information, credit card numbers, or other sensitive information, which contains errors, viruses or other malicious code or harmful components, or which is otherwise actionable at law. We may at any time exercise editorial control over and/or delete any Content, including Submissions (as defined in Section 8 below), without notice to you.

Without our approval, you may not use the Services to publish or distribute any advertising, promotional material, or solicitation to other users of the Services to use any goods or services. Similarly, you may not use the Services to download and redistribute public information or shareware for personal gain or distribute multiple copies of public domain information or shareware.

You acknowledge, consent and agree that NK may access, duplicate, distribute, display, modify, delete, preserve and/or disclose your Registration Data, Payment Method information and other Content as set forth in these Terms and/or in our Privacy Policy, or if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer Service; or (e) protect the rights, property or personal safety of NK, its members and the public.

You agree to comply with all relevant local, state, national and international laws, statutes, ordinances and regulations that apply to your use of the Services and the Content. 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 must comply with applicable third-party terms of agreement when using the Service, e.g., wireless data service provider agreements.

8) Submissions and Suggestions

All Content, or any other content, application or other material that you or third parties provide to us or post, upload, input or submit on or through the Services, including our blog pages, message boards, chat rooms and forums, for review by the general public, registered users or by the members of any public or private community, whether publicly posted, privately transmitted, or submitted through a third party API (e.g. a photograph submitted via Instagram) are collectively referred to herein as "Submissions". You acknowledge and agree that you are solely responsible, and we shall have no liability, for your Submissions' content, accuracy or compliance with relevant laws or regulations. However, by posting, uploading, inputting, or otherwise providing or submitting your Submissions to us or to the Services ("Posting"), you grant us and our sub-licensees a royalty-free, perpetual (subject to any applicable privacy laws), irrevocable, worldwide, non-exclusive right and license to display, publish, distribute, duplicate, modify, delete, create derivative works (such as those resulting from translations, adaptations or other changes we make so that a Submission works better with our Services), and otherwise use your Submissions in any format in connection with the operation of our respective businesses. This license continues even if you stop using our Services. Further, to the extent your Submissions include any suggestions, enhancement or modification requests, recommendations or other feedback relating to the operation of the Services (the "Suggestions"), we shall own, all right, title and interest in and to any such Suggestions, and you hereby assign and transfer to us all its right, title and interest (including all intellectual property rights) in and to the Suggestions.

We are under no obligation to display or otherwise use any Submissions you may provide, nor are we obligated to attribute any Submissions to you, and we may remove any Submissions at any time in our sole discretion. By Posting Submissions, you also warrant and represent that you own or otherwise control all the rights to your Submissions including, without limitation, all the rights necessary for granting the permission specified above. We shall have the right, but not the obligation, to monitor Submissions to determine compliance with these Terms and any operating rules we establish and to satisfy any law, regulation or authorized government request. We shall have the right in our sole discretion to edit, refuse to post, or remove any Submissions. Under no circumstances will we be liable in any way for any information made available through the Services, including, but not limited to, any errors or omissions in any such information, or any loss or damage of any kind incurred as a result of the use of any information made available on the Services. You agree to bear all risks associated with the use of any information available in connection with the Services, including any reliance on the accuracy, completeness, or usefulness of such information.

You agree that we are not responsible for, and do not endorse, third-party Content posted on the Services, including, without limitation, Content posted by users. If your Submission violates these Terms, you may bear legal responsibility for that Submission. As between you and us, any Submission will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content that you post. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Submission does not place us in a position that is any different from the position held by members of the general public, including with regard to your Submission. Your Submission will not be subject to any obligation of confidence by us other than as set forth in the Privacy Policy.

The Services may provide you with the option of making certain Submissions private or available only to select users. If, upon Posting of a Submission, you initially elect to mark such Submission as private or available for a limited group of members, we will use commercially reasonable efforts maintain the privacy of such Submission in accordance with your election. However, if you do not elect to mark your Submission as private or available for a limited group of members, or later change such designation to allow such Submission to be made publicly available, you are responsible for the public nature of the content. Please review our Privacy Policy for more information on how to manage your privacy settings.

We reserve the right, at our sole discretion, to refuse any engraving request that we deem inappropriate, offensive, or otherwise unsuitable for our devices. In such cases, we will offer the option to modify the engraving message or issue a full refund for the engraving service. We are not responsible for any delays caused by the refusal or modification of engraving requests.

9) Links

The Services may contain links to third-party sites or resources. NK is not responsible for the availability of external sites or resources linked to the Services and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Transactions that occur between you and any third party are strictly between you and the third party and are not the responsibility of NK. Because NK is not responsible for the availability or accuracy of these outside resources or their contents, you should review the terms and conditions and privacy policies of these linked sites, as their policies may differ from ours. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party and you agree that we shall not have any liability in connection therewith.

NK welcomes links to the Services. You may establish a hypertext link to any Service, provided that the link does not state or imply any sponsorship or endorsement of your site by NK. You may not use on your site any trademarks, service marks or copyrighted materials appearing on the Services, including but not limited to any logos, without the express written consent of the owner of the mark or right. You may not frame or otherwise incorporate into another site any of the Content or other materials on the Services without prior written consent of NK.

10) Communication with Other Users

The Services may function as a venue to connect users in a virtual information place. NK is not directly involved in the actual communications between users of the Services and has no control over the truth, accuracy, quality, legality, or safety of any Postings by users of the Services. NK shall have no responsibility to confirm the identity of members or to confirm or verify the qualifications of users. BY COMMUNICATING WITH OTHER USERS OF THE SERVICES, YOU CONSENT TO SUCH USERS COLLECTING INFORMATION FROM YOU. YOU ACKNOWLEDGE AND AGREE THAT NK HAS NO CONTROL OVER THE OTHER USERS' COLLECTION, USAGE, AND FURTHER DISCLOSURE OF ANY INFORMATION, INCLUDING PERSONAL INFORMATION (AS DEFINED IN OUR PRIVACY POLICY) THAT YOU DECIDE TO DISCLOSE. ACCORDINGLY, YOU UNDERSTAND AND ASSUME THE RISKS OF REVEALING ANY PERSONAL INFORMATION TO OTHER USERS WITH WHOM YOU COMMUNICATE.

11) Disclaimer of Warranties; Limitations of Liability; Release of Claims

NEITHER NK NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT ANY DEFECTS WILL BE CORRECTED; THAT THE SERVICES, INCLUDING THE SERVER THAT MAKES IT AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, AVAILABILITY, SUITABILITY, QUALITY, NON-INFRINGEMENT, OPERATION OR RESULT OBTAINED FROM THE USE OF ANY CONTENT, PRODUCT OR SERVICE PROVIDED ON, ACCESSIBLE FROM OR DISTRIBUTED THROUGH THE SERVICES.

THE NK SERVICES AND ALL CONTENT, PRODUCTS AND SERVICES INCLUDED IN OR ACCESSIBLE FROM THE NK SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND (EXPRESS, IMPLIED AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF TITLE AND NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), ALL OF WHICH NK AND ITS AFFILIATES DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW. YOUR USE OF THE NK SERVICES AND CONTENT IS AT YOUR SOLE RISK.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NO RESPONSIBILITY IS ASSUMED FOR ANY INJURY AND/OR DAMAGE TO PERSONS OR PROPERTY AS A MATTER OF PRODUCTS LIABILITY, NEGLIGENCE OR OTHERWISE, OR FROM ANY USE OR OPERATION OF ANY IDEAS, INSTRUCTIONS, METHODS, PRODUCTS OR PROCEDURES CONTAINED IN THE SERVICES.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NK, ITS AFFILIATES OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES, PERSONAL INJURY (INCLUDING DEATH), LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE NK SERVICES OR CONTENT, OR SHALL THE LIABILITY OF NK, ITS AFFILIATES OR ITS SUPPLIERS AND LICENSORS EXCEED A SUM EQUAL TO THE FEES PAID BY YOU HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN ALL CASES RELATING TO PROVIDING YOU THE SERVICES, NK (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) AND ITS LICENSORS, SUPPLIERS, ADVERTISERS, AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.

YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY'S CONDUCT RELATED TO USE OF THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. IF CALIFORNIA LAW APPLIES TO YOU, IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.

12) Indemnity

You agree to indemnify, defend and hold NK and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors (together, "NK Group") harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your activities which generate the Content you post or seek to post on the Services (including, but not limited to, athletic activities in connection with any events which NK sponsors, organizes, participates in, or whose Services are used in connection with), your connection to the Services, your violation of the Terms, or your violation of any rights of another person or entity. You further agree to indemnify, defend and hold NK Group harmless from any claim or demand, including reasonable attorneys' fees, arising out of your use of the Services except to the extent caused by the gross negligence or willful misconduct of NK.

13) Proprietary Rights

The term Nielsen-Kellerman, the NK logo and other NK logos and product and Service names are the exclusive trademarks of NK and are owned by us or our affiliates and you may not use or display such trademarks in any manner without our prior written permission. You are expressly forbidden from using any trademark, logo or service mark belonging to NK, registered or unregistered, in any URL and/or social media group or page name without written license from NK.

The Services, any software used in connection with the Services, and any data and/or content based on the Services contain proprietary and confidential information that is protected intellectual property and other laws. You acknowledge and agree that the Services are so protected and agree not to modify, rent, lease, sell, distribute or create derivative works based on the Services, the software or Content (other than Content submitted by you).

NK reserves all rights not expressly granted hereunder.

14) App License and Warranty

You agree that in addition to these Terms, your use of our App is subject to the usage rules set forth in Apple's App Store terms of service, if you download our app from the App Store, or in Google's Play terms of service, if you download the app from Google Play, or any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download our App or otherwise access the Services.

  1. Acknowledgment

    You acknowledge that these Terms are an agreement between you and NK only, and not an agreement with the App reseller or distributor, i.e., Apple or Google ("Distributor"), and NK, not Distributor, is solely responsible for the App and the content thereof.

  2. License

    NK grants to you a nontransferable non-exclusive license to use the App on any devices that you own or control and as permitted by the usage rules, if any, set forth in the Distributor's terms of service ("Usage Rules"). Except as provided in the Usage Rules, you may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the App and, if you sell your device to a third party, you must remove the App from the device before doing so. You may not copy (except as permitted by this license and the Usage Rules), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed App).

  3. App Warranty

    Any warranties not disclaimed herein are the sole responsibility of NK and not the Distributor. In the event of any failure of any App to conform to any applicable warranty, you may notify Distributor to obtain a refund of the purchase price for the App. To the maximum extent permitted by applicable law, the Distributor will have no other warranty obligation whatsoever with respect to the App, and you waive the right to assert against the Distributor any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.

    You acknowledge that NK and not Distributor is responsible for addressing any claims relating to the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the 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. Distributor, and Distributor's subsidiaries, are third party beneficiaries of this agreement, and upon your acceptance of the terms and conditions of the agreement, Distributor will have the right (and will be deemed to have accepted the right) to enforce the agreement against you as a third-party beneficiary thereof.

15) Infringement Claims

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so. The Digital Millennium Copyright Act (the "DMCA") provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by NK infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must be in writing to our Copyright Agent (the "Designated Agent") and include the following information (see 17 U.S.C § 512(c)(3) for further detail): (a) identification of the work or material being infringed; (b) identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence; (c) contact information for the notifying party (the "Notifying Party"), including name, address, telephone number, and email address; (d) a statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law; (e) a statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner. Your notice must be signed (physically or electronically) and must be addressed to our Designated Agent as follows: Nielsen-Kellerman, Attn: Legal Department, 21 Creek Circle, Boothwyn, PA 19061 USA or legal@nkhome.com.

If you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the person who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.

If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information: (a) the specific URLs of material that we have removed or to which we have disabled access; (b) your name, address, telephone number, and email address; (c) a statement that you consent to the jurisdiction of U.S. District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person; and (d) the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled." Your notice must be signed (physically or electronically) and must be addressed to our Designated Agent at the address above. Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If we do not receive any such notification within ten (10) days, we may restore the material to the Services.

In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or search "DMCA takedown notice" for more information about how to prepare or respond to a DMCA notice.

You acknowledge that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party's intellectual property rights, NK, not Distributor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

You agree that we have no liability for any action taken under this section.

16) Jurisdictional Notices

If you are a California resident, under California Civil Code Section 1789.3, California Services users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

If you are a UK resident, For the purposes of English law, nothing in these Terms limits or excludes our responsibility for fraudulent representations made by us or for death or personal injury caused by our negligence or willful misconduct.

17) Dispute Resolution (including Arbitration Agreement; Class Action Waiver; Jury Trial Waiver)

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, AND DISCOVERY IS MORE LIMITED. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS SECTION ALSO CONTAINS A JURY TRIAL WAIVER AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION IN ARBITRATION OR LITIGATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

You acknowledge and agree that any violation of these Terms relating to the disclosure, use, copying, distribution, display, or publishing of the information and/or Content on the Services and/or their associated offerings may result in irreparable injury and damage to NK that may not be adequately compensable in money damages, and for which NK will have no adequate remedy at law. You, therefore, consent and agree that NK may obtain injunctions, orders, or other equitable relief as may be reasonably necessary to ensure compliance with these Terms. You waive any requirement of the posting of a bond that may apply for issuance of any injunctions, orders, or other equitable relief.

This Dispute Resolution (including Arbitration Agreement; Class Action Waiver; Jury Trial Waiver) section will survive any termination of these Terms.

Without limiting your waiver and release in Section 11, you agree to the following:

  1. Arbitration Agreement.
    1. Binding Arbitration. This provision is intended to be interpreted broadly. Any dispute or claim arising out of or relating to these Terms, your use of the Services, the Privacy Policy, or your relationship with NK or any past, present, or future claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Dispute”), will be resolved through binding individual arbitration, except that either of us may take a Dispute to small claims court so long as it is not removed or appealed to a court of general jurisdiction. Any disagreement as to whether a Dispute is within the jurisdictional limits of small claims court is for a court to decide and any arbitration shall be stayed. “Dispute” shall include, but not be limited to: (i) any dispute or claim that arose before the existence of these or any prior Terms (including, but not limited to, claims relating to advertising); (ii) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (iii) any dispute or claim that may arise after termination of these Terms. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (i) issues that are reserved for a court in these Terms; (ii) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, or any of the provisions of this Dispute Resolution section; and (iii) issues that relate to the arbitrability of any Dispute. These Terms and this arbitration agreement do not prevent you from bringing a Dispute to the attention of any government agency. You or NK may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect rights or property pending the completion of arbitration. You and we agree that these Terms evidence a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq and federal arbitration law, not state arbitration law.
    2. Mandatory Informal Dispute Resolution Process. You and we agree to work together in an effort to informally resolve any Dispute between us. The party initiating the Dispute must send the other a written notice of the Dispute that includes all of this information: (i) information sufficient to identify any transaction, activity, and account at issue; (ii) contact information (including name, address, telephone number, and email address); and (iii) a detailed description of the nature and basis of the Dispute (including the date of any transaction or activity at issue) and the relief sought, including a calculation for it. The notice must be personally signed by the party initiating the Dispute (and their counsel, if represented). If you have the Dispute with us, you must send this notice via email to legal@nkhome.com. If we have a Dispute with you, we will send this notice to the most recent contact information we have for you. For a period of 60 days from receipt of a completed notice (which can be extended by agreement of the parties), you and we agree to negotiate in good faith in an effort to informally resolve the Dispute. The party receiving the notice may request a telephone settlement conference to aid in the resolution of the Dispute. If such a conference is requested, you and an NK representative will personally attend (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the 60-day period. Completion of this Mandatory Informal Dispute Resolution Process (“Process”) is a condition precedent to initiating a claim in arbitration. If the sufficiency of a notice or compliance with this Process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party's election, and any arbitration shall be stayed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this Process in arbitration. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed notice through the conclusion of this Process. You or we may commence arbitration if the Dispute is not resolved through this Process.
    3. Arbitration Procedures. The arbitration shall be administered by National Arbitration and Mediation ("NAM") and heard by a single, neutral arbitrator. Except as modified by these Terms, NAM shall administer the arbitration in accordance with their rules applicable to the nature of the Dispute, including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable (“NAM Rules”). The NAM Rules and fee information are available at "www.namadr.com." If NAM is unable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an alternate administrator that will do so. If the parties cannot agree, they shall petition a court of competent jurisdiction to appoint an alternate administrator that will do so.

      The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the NAM Rules and this Section 12. You may obtain a form to initiate arbitration at "https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf" or by contacting NAM. You may deliver any required or desired notice to NK by mail to Nielsen-Kellerman Co. at 21 Creek Circle, Boothwyn, PA 19061 USA. If NK is initiating arbitration, NK shall serve the arbitration demand via email at the contact information NK has on file for you.

      An arbitration demand must be accompanied by a certification of compliance with the Process and be personally signed by the party initiating arbitration (and counsel, if represented). By submitting an arbitration demand, the party and counsel represent that, as in court, that they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking $25,000 or more, or injunctive relief, shall have an in-person or video hearing unless the parties agree otherwise. You and we reserve the right to request a hearing in any matter from the arbitrator. You and an NK representative will personally appear at any hearing (with counsel, if represented). Unless you and NK agree otherwise, any arbitration hearing will take place in Philadelphia, PA. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory 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 allowable by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. An arbitrator will apply these Terms as a court would. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated.

      The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party.
    4. Costs of Arbitration. Payment of arbitration fees will be governed by the NAM Rules and fee schedule. You and we agree that the parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. You and we therefore agree that the parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
    5. Additional Procedures for Mass Filings. You and we agree that these Additional Procedures for Mass Filings (in addition to the other provisions of this arbitration agreement) shall apply if you choose to participate in a Mass Filing. If 25 or more similar Disputes (including yours) are asserted against NK by the same or coordinated counsel or are otherwise coordinated (“Mass Filing”), you understand and agree that the resolution of your Dispute might be delayed and ultimately proceed in court. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated, and conserve the parties' and NAM's resources.

      If your claim is part of a Mass Filing, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to NAM until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

      STAGE ONE: If at least 50 Disputes are submitted as part of the Mass Filing, counsel for the claimants and counsel for NK shall each select 25 Disputes to be filed and to proceed as cases in individual arbitrations as part of this initial staged process. The number of Disputes to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration in connection with those claims. After this initial set of proceedings, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and NK shall pay the mediator's fee.

      STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for NK shall each select 50 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage Two). No more than three cases may be assigned to a single arbitrator to proceed individually. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration. After this second set of staged proceedings, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and NK shall pay the mediator's fee.

      Upon the completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be immediately opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Filings, including the power to enjoin the filing or prosecution of arbitrations.

      You and NK agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and NK acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Additional Procedures for Mass Filings has been reasonably designed to result in an efficient and fair adjudication of Disputes.

      The Additional Procedures for Mass Filings provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Multiple Case Filings apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.
  2. Class Action Waiver and Jury Trial Waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, YOU AND WE RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE WAIVE THE RIGHT TO A JURY TRIAL. THIS CLASS ACTION AND JURY TRIAL WAIVER WILL SURVIVE ANY TERMINATION OF THESE TERMS OF SERVICE.

18) Choice of Law and Forum

All matters relating to your access to or use of the Services, including all disputes, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, USA, without regard to its conflicts of law principles. THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DO NOT APPLY. Subject to the Section entitled "Dispute Resolution", the exclusive jurisdiction and venue with respect to any action or suit arising out of or pertaining to the subject matter hereof shall be the courts of competent jurisdiction located in the Commonwealth of Pennsylvania, USA. Any claim arising out of or in connection with your use of or inability to use the Services or its Content, products or services must be brought within one (1) year after the event, or such claim is barred.

19) International Use

If you are not a United States resident and you are accessing the Services from outside the United States, you agree to transfer certain information outside your home country to us, and that you will follow all the laws that apply to you. Our servers and operations are located primarily in the United States, and our policies and procedures are based primarily on United States law. Because of this, the following provisions apply specifically to users located outside of the United States: (i) you consent to the transfer, storage, and processing of your information, including but not limited to your content and personal data, to and in the United States and/or other countries; and (ii) you agree to comply with all local laws, rules, and regulations including, without limitation, all laws, rules, and regulations in effect in the country in which you reside and the country from which you access the Services. The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject NK or its affiliates to any registration requirement within such jurisdiction or country. You may not use or export the Content in violation of U.S. export laws and regulations. This agreement was written in English. To the extent a translated version of the Terms conflict with the English version, the English version controls.

20) Termination

You agree that NK may, under certain serious circumstances and without prior notice, immediately terminate your account and/or access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and Content associated with your account, and (z) barring of further use of the Services. Further, you agree that all terminations for cause shall be made in NK's sole discretion and that NK shall not be liable to you or any third party for any termination of your account or access to the Services. All rights and remedies of NK shall survive any termination of these Terms.

21) General

You agree that no joint venture, partnership, employment or agency relationship exists between you and NK as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and NK with respect to your use of the Services. The failure of NK to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. NK's notice to you via email, notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. We are not responsible for your failure to receive notice if email is quarantined by your email security system (e.g., "junk" or "spam" folder), if you fail to monitor the email address provided to us, or if you fail to update your email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Services, then it will be considered received twenty-four hours after it is first displayed. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved. You acknowledge that Distributor and its affiliates and subsidiaries are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Distributor will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary.

22) Updates and Product-Specific Terms

  1. Updates to these Terms

    We reserve the right to modify these Terms by (i) posting revised Terms on and/or through the Services, and/or (ii) providing notice to you of material changes to the Terms, generally via email where practicable, and otherwise through the Services (such as through a notification on our home page or in our Apps). Modifications will not apply retroactively unless required by law. We may sometimes ask you to review and to explicitly agree to or reject a revised version of the Terms. In such cases, modifications will be effective at the time of your agreement to the modified version of the Terms. If you do not agree at that time, you are not permitted to use the Services. In cases where we do not ask for your explicit agreement to a modified version of the Terms, the modified version of the Terms will become effective as of the date specified in the Terms. Your use of the Services following that date constitutes your acceptance of the terms and conditions of the Terms as modified. If you do not agree to the modifications, you are not permitted to use, and should discontinue your use of, the Services.

  2. Product-Specific Terms

    We may also require you to agree to additional terms, rules, policies, guidelines, or other conditions (collectively, "Product-Specific Terms") that are specific to certain Services. In such cases, you may be required to expressly consent to Product-Specific Terms. For instance, you might need to check a box or click on a button marked "I agree." If any of the Product-Specific Terms are different than the Terms, the Product-Specific Terms will supplement, amend, or supersede the Terms, but only with respect to the subject matter of the Product-Specific Terms.

23) Contact Us

If you have any feedback, questions or comments about the Services, or need to reach us for any reasons, please contact us by email at info@nkhome.com, by phone at +1 (610) 447-1555, or by mail at: Nielsen-Kellerman, 21 Creek Circle, Boothwyn, PA 19061 USA.