Nixplay Signage - Terms of Service
The following Terms of Service (“Terms”) govern your use of the Nixplay Signage e-store and services including your use and access to all related web sites, networks, software, mobile applications and other services provided by Nixplay Signage (“Service”). The Service is operated by Creedon Technologies (all Creedon Technologies entities around the world, including but not limited to Creedon Technologies Ltd, UK; Creedon Technologies USA LLC (USA); Creedon Technologies HK Ltd. (HK)) d/b/a Nixplay and Nixplay Signage (“Nix”, “Nixplay”, “Nixplay Signage", “us”, “we”). These Terms apply to all personal users, business users, visitors, or any others who use and access the Service (collectively, “Users”).
Please review all of the Terms carefully. By using any of the Service provided or operated by Nixplay Signage, you signify that you have read, understood and agreed to be bound by these Terms, including all Nixplay Signage policies that apply to your use of the Service. If you are agreeing to these Terms for use by an organization or company, you are agreeing to these terms on behalf of that organization (in such a case, the terms “you” and “your”, as used in these Terms, shall apply to both you and your organization).
These Terms provide that all disputes between you and Nixplay Signage will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 18 below for the details regarding your agreement to arbitrate any disputes with Nixplay Signage.
1. Nixplay Signage Service. Nixplay Signage provides software as a service, allowing you to add, remove and curate your images other audio-visual content (“Content”) through your web browser and/or mobile app for display on paired Nixplay Signage Screens. Your accepted contacts will also be able to send and receive content from you according to your settings. You may access and use the Service under the terms and conditions of these Terms. The Nixplay Signage display is purchased separately and may be subject to additional terms and conditions.
2. Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an organization or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
3. Accounts and Registration. To access the features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4. Payment. Nixplay Signage is a Paid Service. We may on our sole discretion allow the users to have a free trial for evaluation purposes, for a specified time period (“Trial period”). By entering into a Trial period or accessing the paid service, you authorize Nixplay Signage to direct its third party payment processor to charge the credit card identified by you (which you represent and warrant that you are authorized to use) for all applicable fees for that Paid Service in U.S. dollars or any other currency option shown or offered by Nixplay Signage, at the start of the trial or at the time of payment, including all applicable taxes.
If Nixplay Signage does not receive payment from your credit card provider, you agree to pay all amounts due upon demand and we may suspend your access to the Service until you have paid all outstanding amounts. You agree to reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Nixplay Signage to collect any amounts that are not paid when due. You may cancel your use of a Paid Service or your account at any time. All sales are final and Nixplay Signage will not refund any amounts paid, except as expressly provided in these Terms. You acknowledge that Nixplay Signage reserves the right to change its fees at any time upon prior notice to you.
You agree to provide and keep up to date a valid credit card with complete and accurate billing, and contact information. If any credit card, billing or contact information provided by any User is false or fraudulent, we reserve the right to immediately terminate your access to the Service.
5. Content. You retain all copyrights and any other proprietary rights that you may hold in the Content that is posted on or through the Service. When you transmit or upload Content to the Service, you allow us to provide you with the necessary services (e.g. store, resize, geotagging etc.) regarding that Content and to improve your experience while protecting you and your Content. In order to do that we might also collect and use the data regarding the overall characteristics (e.g. orientation of the Content, orientation of the connected Nixplay Signage Display, device type used, user behavior etc.) of the Content. Such data may be personally identifiable.
You are solely responsible for your Content and the consequences of posting or publishing Content. By posting and publishing Content, you affirm, represent, and warrant that:
you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Nixplay Signage and Users of the Service to use and distribute your Content as necessary
your Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
6. Digital Millennium Copyright Act.
6.1 DMCA Notification.
Nixplay Signage complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact Nixplay Signage’s Designated Agent at the following address:
Creedon Technologies USA LLC
12301 Whitewater Drive Suite 115
Minnetonka, MN 55343
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
c) a description of the material that you claim is infringing and where it is located on the Service;
d) your address, telephone number, and email address;
e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. Nixplay Signage will promptly terminate without notice the accounts of Users that are determined by Nixplay Signage to be “repeat infringers.” A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had Content removed from the Service more than twice
7. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
7.1 use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
7.2 violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
7.3 post, upload, or distribute any Content or other material that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
7.4 interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any Content, or (ii) reverse engineering or otherwise attempting to discover the source code of the software related to the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
7.5 interfere with the operation of the Service or any User’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other Users of the Service, (iii) attempting to collect, personal information about Users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
7.6 perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
7.7 sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or
7.8 attempt to do any of the foregoing in this Section 7, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 7.
8. Third-Party Services and Linked Websites. Nixplay Signage may provide tools through the Service that enable you to import and export information, including Content, to and from third party services, including through features that allow you to link your account on Nixplay Signage with an account on a third party service, such as Facebook, Instagram or Picasa. By using these tools, you agree that Nixplay Signage may transfer and/or import such information and Content to and/or from the applicable third-party service. Such third party services are not under our control and Nixplay Signage is not responsible for their provision of your information and Content. The Service may also contain links to third-party websites. Such linked websites are not under our control, and Nixplay Signage is not responsible for their content
9. Termination of Use; Discontinuation and Modification of the Service. The use of Service is granted for a certain time period, month or year (“Service Period”). This agreement automatically renews at the end of each Service Period and on the end of each Service Period thereafter subject to terminations as provided for in these Terms.
If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Nixplay Signage may, without notice, terminate your account on the Service or suspend or terminate your access to the Service at any time when, in Nixplay Signage’s discretion, it believes it is necessary to do so for its provision of the Service. Nixplay Signage also reserves the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination. If you do not have any Nixplay Signage devices connected to your account, access to your account may be terminated. Accounts may be permanently removed due to prolonged non-payment.
10. Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Nixplay Signage may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that Nixplay Signage may offer, or rules applicable to particular features or content on the Service, subject to Section 11 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
11. Changes to the Terms. Nixplay Signage reserves the right, at its discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, Nixplay Signage will make reasonable efforts to notify you of such change. Nixplay Signage may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Nixplay Signage may require you to provide consent by accepting the changed Terms. If Nixplay Signage requires your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, Nixplay Signage may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
12. Ownership; Proprietary Rights. The Service is owned and operated by Creedon Technologies. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Nixplay Signage are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Creedon Technologies or its third-party licensors. Except as expressly authorized by Nixplay Signage, you may not make use of the Materials. Creedon Technologies reserves all rights to the Materials not granted expressly in these Terms.
13. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Nixplay Signage and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Creedon Technologies Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. Nixplay Signage reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Nixplay Signage’s defense of such claim.
14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. NIXPLAY SIGNAGE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE NIXPLAY SIGNAGE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NIXPLAY SIGNAGE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF CONTENT OR DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
15. Limitation of Liability
IN NO EVENT WILL THE NIXPLAY SIGNAGE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONTENT OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE NIXPLAY SIGNAGE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE NIXPLAY SIGNAGE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO NIXPLAY SIGNAGE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Nixplay Signage agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.
18. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Nixplay Signage in the most expedient and cost effective manner, you and Nixplay Signage agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The parties’ agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NIXPLAY SIGNAGE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Notwithstanding subsection 18.1, both parties agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of the parties’ right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
18.3 Arbitrator. Any arbitration between you and Nixplay Signage will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Nixplay Signage.
18.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Nixplay Signage does not have a physical address on file for you, by electronic mail (“Notice”). Nixplay Signage’s address for Notice is: Creedon Technologies USA LLC, 12301 Whitewater Drive Suite 115, Minnetonka, MN 55343, United States. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). Nixplay Signage agrees to use good faith efforts to resolve the claim directly, but if Nixplay Signage does not reach an agreement to do so within thirty (30) days after the Notice is received, you or Nixplay Signage may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Nixplay Signage shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
18.5 Fees. The payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Nixplay Signage for all monies previously disbursed by it that are otherwise your obligation to pay under 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 decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.6 No Class Actions. YOU AND NIXPLAY SIGNAGE 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 CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Nixplay Signage 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 class proceeding.
18.7 Modifications. In the event that Nixplay Signage makes any future change to this arbitration provision (other than a change to address for Notice), you may reject any such change by sending us written notice within thirty (30) days of the change to our address for Notice, in which case your account with Nixplay Signage shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
18.8 Enforceability. If Subsection 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.
19. Feedback. Nixplay Signage welcomes your comments about our Service. However, if you send us a business idea or suggestion (for example, about how to improve or expand products and services), you agree that Nixplay Signage will be completely free to implement, use, or modify, in any way, your idea or suggestion (or any part of it), without any payment or other obligation to you.
21. Contact Information. The Service hereunder is offered by Creedon Technologies (all Creedon Technologies entities around the world, including but not limited to Creedon Technologies Ltd, UK; Creedon Technologies USA LLC (USA); Creedon Technologies HK Ltd. (HK)), located at “12301 Whitewater Drive Suite 115, Minnetonka, MN 55343, United States”. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.