Last updated: September 19, 2019
This Agreement of Use (this “Agreement”) govern the access or use by you, an individual, of applications, websites, features, content, products, and services (the “Services”) made available by NAM Marketing Group, LLC (“NAM Marketing”).
Access to the Services
In order to access and use the Services you must first register for and maintain an active user service account (“Account”). Account registration requires you to submit to NAM Marketing certain personal information, such as your first and last name, physical address, email address, telephone number, at least one valid payment method, such as a credit card (your “Payment Method”), and any additional information required by NAM Marketing. To obtain an Account, you must be at least 18 years of age or the age of legal majority in your jurisdiction (if different than 18).
In addition, prior to using the Services, NAM Marketing may be required to verify your identity. You authorize NAM Marketing to make any inquiries it considers necessary to validate your identity. These inquiries may include asking you for further information, requiring you to take steps to confirm ownership of your email address or payment instruments or verifying information you provide against third party databases or through other sources. If you do not provide this information or NAM Marketing cannot verify your identity, NAM Marketing can refuse to allow you to use the Services.
You agree to maintain accurate, complete and up-to-date Account information in your Account at all times. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify NAM Marketing if your Payment Method is cancelled (e.g. for loss or theft). NAM Marketing is not responsible for any payment processing errors or fees or other Service related issues arising from your failure to keep your Account information current. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired Payment Method on file, may result in your inability to access and use the Services or NAM Marketing’s termination of your Account and this Agreement. Notwithstanding the foregoing, NAM Marketing may at any time immediately terminate this Agreement or generally cease offering or deny access to the Services or any portion thereof with respect to you, at any time for any reason. You agree that NAM Marketing will not be liable to you or any third party for any termination of your access to the Services.
Further, your access and use of the Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Services, or other actions that NAM Marketing, in its sole discretion, may elect to take. In no event will NAM Marketing be liable to any party for any loss, cost, or damage that results from any period of downtime of the Site or Services.
Passwords and Security
You will need to create a username and password to access your Account and the Services. By selecting a username, you agree that you will not select or use a name: (a) of another person with the intent to impersonate that person; (b) subject to the rights of any person without authorization; (c) in violation of the intellectual property rights of any person; or (d) that NAM Marketing, in its sole discretion, deems inappropriate or offensive. You hereby expressly permit NAM Marketing to identify you by your user name (which may be a pseudonym). You acknowledge and agree that you shall have no ownership or other property interest in your Account and/or use name, and you further acknowledge and agree that all rights in and to your username and Account are and shall forever be owned by and inure to the benefit of NAM Marketing.
You shall not give or make available passwords or other means of accessing your Account or the Services to any third party. If you give someone your username and password, you are authorizing that person to use your Account, and you are solely responsible for all transactions that person performs, even if you did not want them performed, and even if they are fraudulent. You must notify NAM Marketing’s customer support immediately upon any suspicion that a password has been lost or stolen or that someone has attempted or may attempt to use the Services without authorization. NAM Marketing will not have any liability to you for any unauthorized transactions made using your password that occurs before you have notified NAM Marketing of possible unauthorized use and NAM Marketing has had a reasonable opportunity to act on that notice. Accordingly, you should log into your Account regularly and review your transaction history for unauthorized transactions or access. By using the Site and/or Services, you acknowledge and agree that this Agreement sets forth security procedures that are commercially reasonable. You agree to be bound by transactions initiated in compliance with these procedures, whether or not authorized, unless you have given NAM Marketing prior notice of possible unauthorized use as described above and NAM Marketing has had a reasonable opportunity to act on such notice.
You are solely responsible for the implementation of appropriate security procedures designed to prevent unauthorized access to the Services via your computer systems or personal mobile devices. You shall promptly notify NAM Marketing upon any suspicion or confirmation of inappropriate, unauthorized, or fraudulent use of the Services.
The mobile application that is part of the Services is intended to run on smart mobile phone devices. To use the application you must have a personal device that is compatible with the application and NAM Marketing does not warrant that the application will be compatible with all devices. Receiving and sending notifications and correspondences in real time using the application requires an internet connection personal device. The costs of such connection is subject to the agreement between you and your cellular communications provider and to the payments that apply to you thereunder.
Third Party Services and Content
By creating an Account, you agree to subscribe to newsletters, marketing or other promotional materials or information NAM Marketing may send. However, you may opt out of receiving any, or all, of these communications from NAM Marketing by following the unsubscribe link or instructions provided in any email NAM Marketing sends to you.
Certain of the Services may involve the purchase of products offered by NAM Marketing that would be shipped to an address provided by you. All purchases of physical items from NAM Marketing are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier by NAM Marketing. NAM Marketing will not be responsible for any shipping delays or loss of product beyond its control, including any delays created by products being held at border customs en route to a customer’s shipment address.
NAM Marketing uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. NAM Marketing is not responsible for errors by the Payment Processor. By choosing to use Paid Services, you agree to pay NAM Marketing, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize NAM Marketing, through the Payment Processor, to charge your chosen Payment Method. You agree to make payments using that selected Payment Method. NAM Marketing reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If NAM Marketing, through the Payment Processor, does not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Recurring Charges for Subscription Services
Some of the Services, such as the purchase of auto-replacing brush heads or other products, are billed on a subscription basis (“Subscription Services”). As part of the Subscription Services, you will have the ability to specify how regularly you would like to order any auto-replacing products. Subscription Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Subscription Services will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate until it is cancelled by you or NAM Marketing. To change or cancel your Subscription Services at any time, go to your Account settings. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. All fees related to Subscription Services are fully earned upon payment. Fees for Subscription Services will be exclusive of applicable taxes where required by law.
NAM MARKETING MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY NAM MARKETING) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE NAM MARKETING REASONABLY COULD ACT. YOU MUST LOG INTO YOUR ACCOUNT TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD.
Changes to Subscription Fees
NAM Marketing, in its sole discretion and at any time, may modify the fees for Subscription Services. Any such subscription fee change will become effective at the end of the then-current subscription term. NAM Marketing will provide you with prior notice of any change in subscription fees. If you do not agree with the change in subscription fees, you may cancel your subscription within ten (10) days after the date of the notice of such fee change in accordance with this Agreement. By continuing to access or use the Subscription Services after such period will mean that you accept and agree to be bound by and pay the modified subscription fee amount.
No Refund for Subscription Fees
Subscription fees paid by you are final and non-refundable. Any request for refunds of subscription fees may be considered by NAM Marketing in its sole discretion and on a case-by-case basis.
Change in Amount Authorized
If the amount to be charged to your Billing Account varies from the amount you pre-authorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and NAM Marketing shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that NAM Marketing may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Reaffirmation of Authorization
Your non-termination or continued use of a Service (including Subscription Services) reaffirms that NAM Marketing is authorized to charge your Payment Method for that Service. NAM Marketing may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Service.
Free Trials and Other Promotions
Any free trial or other promotion that provides access to a Service must be used within the specified time of the trial. You must stop using the Service before the end of the trial period in order to avoid being charged for that Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Service, please contact NAM Marketing at 888-932-0202.
At any time and without notice to you, NAM Marketing reserves the right to (i) modify the terms and conditions of a free trial offer, or (ii) cancel such free trial offer.
Modifications to the Services / Suspensions
NAM Marketing reserves the right at any time in its sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site or the Services (or any features or portions thereof, including any applicable fees), with or without notice to you. NAM Marketing will not be responsible to you for a refund, in whole or in part, of subscription fees for any reason. You agree that NAM Marketing will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or the Services or any part thereof. The Services may include functionality to automatically check for updates or upgrades. You hereby agree that NAM Marketing has the right, but not the obligation, to make such updates or upgrades available to you from time to time. Such updates and upgrades shall be subject to the terms and conditions of this Agreement unless the Services are provided to you under other or additional terms and conditions, in which case those other or additional terms and conditions (which may include the payment of additional fees) shall apply. Any outdated versions of the Services, including the mobile application, are not supported by NAM Marketing and any use of any such outdated versions is at your own risk.
User Provided Content
NAM Marketing may, in its sole discretion, allow you to submit, upload, post, link, store, share or otherwise make available through the Services certain information, text, graphics, videos, or other information (“User Content”). You are responsible for the User Content that you provide to NAM Marketing, including its legality, reliability, and appropriateness. By providing User Content to NAM Marketing, you represent and warrant that: (i) the User Content is either owned by you or you have all rights, licenses, consents and releases necessary to use it and to grant NAM Marketing the license to the User Content as set forth below, and (ii) neither the User Content nor your submission, uploading, posting, linking, storing, sharing or otherwise making available of such User Content nor NAM Marketing’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, the rights of privacy or publicity, contract rights or result in the violation of any applicable Law.
Any User Content provided by you remains your property. NAM Marketing takes no responsibility and assumes no liability for User Content. However, by providing User Content to NAM Marketing, you grant NAM Marketing a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, modify, publicly perform, publicly display, reproduce, distribute and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and NAM Marketing’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
NAM Marketing has the right but not the obligation to review, monitor edit or remove any User Content provided by you, at NAM Marketing’s sole discretion and at any time and for any reason, without notice to you. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by NAM Marketing in its sole discretion, whether or not such material may be protected by law.
Rights Granted to NAM Marketing
By submitting information, data, passwords, usernames, other log-in information, materials and other content to NAM Marketing through the Services, you are licensing that content to NAM Marketing solely for the purpose of providing the Services. NAM Marketing may use and store the content for the purpose of providing the Services to you. By submitting this content to NAM Marketing, you represent that you are entitled to submit it to NAM Marketing for use for this purpose, without any obligation by NAM Marketing to pay any fees or other limitations.
NAM Marketing reserves the right to verify all users of the Services. NAM Marketing will have the right to collect any personal information collected from you, subject to applicable Law, to use internally for record keeping, internal reporting, analytics, fraud detection and support purposes. NAM Marketing may further access or disclose personal information in order to, among other things,: (i) protect or defend the legal rights or property of NAM Marketing, its affiliated companies or their employees, agents and contractors (including enforcement of its agreements); (ii) protect the safety and security of other users of the Services; (iii) detect, prevent or otherwise address fraud, security or technical issues or for risk management purposes; (iv) comply with any applicable Law, legal process or governmental request, or (v) enforce this Agreement, including investigation of potential violations hereof.
License to NAM Marketing Content
Subject to your compliance with this Agreement, during the term of this Agreement, NAM Marketing grants you a personal, limited, non-exclusive, non-sub-licensable and non-transferable license to access and use the Site, the Services, any Application and any information, data, text, images, content, materials, software, and features generated, provided or otherwise made accessible on or through the Site or the Services (collectively, “NAM Marketing Content”) solely for your use of the Services and at all times in accordance with this Agreement. All NAM Marketing Content is the proprietary information of NAM Marketing or its licensors protected by copyright, trade secret and other intellectual property laws, and shall remain NAM Marketing’s property or the property of NAM Marketing’s licensors. Any rights not expressly granted herein are reserved by NAM Marketing and NAM Marketing’s licensors. This Agreement does not give you any rights in NAM Marketing’s or its licensors trademarks or service marks. NAM Marketing may terminate the licenses granted to you in this Agreement at any time for any reason or no reason. All licenses granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition herein.
You may choose to submit suggestions comments or ideas about the Services, including without limitation about how to improve the Services (“Suggestions”). By submitting a Suggestion, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place NAM Marketing under any fiduciary or other obligation, and that NAM Marketing is free to use the Suggestion without any additional compensation to you, and/or to disclose the Suggestion on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, NAM Marketing does not waive any rights to use similar or related ideas previously known to NAM Marketing, or developed by its employees, or obtained from sources other than you.
Restrictions on Use
You will not, and will not permit any third party to, directly or indirectly, (a) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the NAM Marketing Content, except to the limited extent applicable Laws specifically prohibit such restriction; (b) modify, translate, or otherwise prepare derivative works based on NAM Marketing Content or any part thereof; (c) make any copies of NAM Marketing Content; (d) use any portion of the NAM Marketing Content as a component of, or basis for, a database prepared for use by you or any third party or otherwise use any portion of the NAM Marketing Content except as expressly provided in this Agreement; (e) publish, distribute, license, rent, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the NAM Marketing Content or use the NAM Marketing Content to provide time sharing or similar services for any third party; (f) link to, mirror or frame any portion of the NAM Marketing Content; (g) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the NAM Marketing Content or unduly burdening or hindering the operation and/or functionality of any aspect of the NAM Marketing Content; (h) run any form of auto-responder or “spam” on any NAM Marketing Content; (i) use manual or automated software, devices, or other processes to “crawl” or “spider” on any NAM Marketing Content; (j) remove, circumvent, disable, damage or otherwise interfere with security-related features of the NAM Marketing Content, features that prevent or restrict use or copying of any content accessible through the NAM Marketing Content, or features that enforce limitations on use of the NAM Marketing Content; (k) input, upload, transmit or otherwise provide to or through NAM Marketing Content any information or materials that is unlawful or injurious, or contain, transmit or activate any harmful code; (l) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner NAM Marketing Content, or provision of services to any third party; (m) remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any portion of the NAM Marketing Content, including any copy thereof; (n) access or use NAM Marketing Content to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable Law; (o) access or use NAM Marketing Content for purposes of competitive analysis or the development, provision or use of a competing software service or product or any other purpose that is to NAM Marketing’s detriment or commercial disadvantage; (p) attempt to gain unauthorized access to or impair any aspect of the NAM Marketing Content or its related systems or networks; or (q) otherwise use the NAM Marketing Content except as expressly allowed under this Agreement.
You acknowledge that NAM Marketing may from time to time issue upgraded versions of the Services, and may automatically electronically upgrade the version of the Services that you are using on your personal device. You consent to such automatic upgrading on your personal device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Services is covered by the applicable open source or third-party software license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Services or any copy thereof, and NAM Marketing or its third-party partners or suppliers retain all right, title, and interest in the Services (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
User Requirements and Conduct
You agree to comply with all applicable Laws in connection with your use of the Services. You further agree and understand that if you are using the Services through the mobile application, it is your sole responsibility to (a) properly download and install the application; (b) use a compatible mobile device that is in good working order, including, without limitation, having sufficient battery life and file storage space necessary for the proper operation of the application; (c) obtain the necessary services for the proper operation of the application from an approved mobile carrier; (d) maintain an account in good standing with an approved mobile carrier, including, without limitation, paying for any charges related to the use of your mobile device (including, without limitation, charges related to cellular transmissions, SMS or other text messaging, and other data transmissions) even if those charges arise as a result of you using the application or Services; (e) pay for all charges arising from the use of the application; and (f) properly download and install any updates to or new versions of the application that are applicable to your mobile device.
In addition to the other restrictions outlined in this Agreement, you agree that you will not:
Links to Third Party Services
The Site or the Services may contain links to other third party websites, services or resources on the Internet, or other websites, services or resources may contain links to the Site or the Services. These other resources are not under NAM Marketing’s control, and you acknowledge that NAM Marketing is not responsible for the content, functions, accuracy, legality, appropriateness, practices or any other aspect of such websites, services or resources. When you access third party resources on the Internet, you do so at your own risk. The inclusion of any such link to a third party website, service or resource does not imply NAM Marketing’s endorsement of the offerings of any of their operators or any association between it and their operators. You further acknowledge and agree that NAM Marketing shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party website, service or resource.
The Site and some of the Services may display advertisements and promotions. These advertisements may be targeted to NAM Marketing Content, user-generated content, queries, or other information. The manner, mode, and extent of advertising permitted by NAM Marketing on the Site are subject to change without specific notice to you. In consideration for NAM Marketing granting you access to and use of NAM Marketing Content, you agree that NAM Marketing may place such advertising on the Site or Services. NAM Marketing does not write, review or edit these advertiser’s content or their reliability and it will not be responsible for any liability arising from your use of any commercial content that is placed on the behalf of third parties. Only the advertisers will be liable for the commercial content and to any result of using them or relying on them. Placing advertisements does not constitute a recommendation, endorsement or an encouragement to purchase the offered services and/or products. In addition, your dealings with or participation in promotions of advertisers found in the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that NAM Marketing shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Services on your personal mobile device. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. NAM Marketing does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
Term and Termination
This Agreement, including any revisions, will remain in effect as long as you continue to use the Services. You may cancel your Account at any time by emailing NAM Marketing at [email protected] You must include the name of the Account holder, the email address associated with the Account and a phone number where you can be reached along with the message “Cancel Services” in the subject line, as appropriate. NAM Marketing may terminate this Agreement or any Service, including Subscription Services, and/or suspend your Account or access to the Services at any time, without prior notice or liability to you, and for any reason whatsoever.
Upon termination of this Agreement, or if you violate any term or condition of this Agreement, you must immediately stop using the Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
THE SERVICES AND ALL OTHER NAM MARKETING CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NAM MARKETING DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES. NAM MARKETING MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR OTHER NAM MARKETING CONTENT, THAT THE SERVICES OR OTHER NAM MARKETING CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR OTHER NAM MARKETING CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NAM MARKETING FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. NAM MARKETING CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND NAM MARKETING MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT NAM MARKETING, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE SERVICES OR OTHER NAM MARKETING CONTENT. NAM MARKETING MAKES NO WARRANTIES THAT YOUR USE OF NAM MARKETING CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES OR OTHER NAM MARKETING CONTENT BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES OR OTHER NAM MARKETING CONTENT REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NAM MARKETING, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, CONTENT PROVIDERS, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR INCOME, DATA, USE, GOODWILL, PROFITS, OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS. NAM MARKETING WILL NOT BE LIABLE FOR ATTORNEYS’ FEES, EXCEPT AS REQUIRED BY LAW.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL THE TOTAL LIABILITY OF NAM MARKETING AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, CONTENT PROVIDERS, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS OR REPRESENTATIVES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF NAM MARKETING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Services are controlled and operated from facilities in the United States. NAM Marketing makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals located in the United States.
THIRD PARTY PRODUCTS AND SERVICES
NAM MARKETING MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS OR SERVICES. YOUR USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT YOUR OWN RISK. NAM MARKETING ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE. MARKETING IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
You agree to defend, indemnify and hold NAM Marketing, its subsidiaries, affiliates, licensors, content providers, suppliers, employees, contractors, officers, directors, and representatives its third party licensors, and their respective employees, contractors, agents, officers and directors (collectively, “Released Parties”), harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees), arising out of or in connection with: (a) your use and access of the Site, the Services or other NAM Marketing Content; (b) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement; (c) your violation of the rights of any third party; (d) your violation of any applicable Law; (e) the actions or inactions of any third party to whom you grant permission to use your Account or the Services on your behalf; or (f) any other party’s access and use of your Account or the Services with your unique login and password.
This Agreement and any disputes arising under or related to this Agreement will be governed by U.S. federal law and the laws of the State of Colorado, without reference to its conflict of law principles. You agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Arapahoe County, Colorado.
The parties acknowledge that this Agreement evidence a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
WAIVER OF JURY TRIAL
YOU AND NAM MARKETING HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH YOU OR NAM MARKETING MAY BE A PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
NAM Marketing may give notice by means of a general notice on the Site, by electronic mail to the email address on record in your Account, by posting in your Account, or by written communication sent by first class mail to the address of record in your Account. Such notice shall be deemed given immediately upon posting to the Site or to your Account, six (6) hours after sending by electronic mail, or forty-eight (48) hours after sending by first class mail. Except as provided herein, you may give notice to NAM Marketing by delivery by nationally recognized overnight delivery service or first class mail to NAM Marketing at the address listed below under “For More Information.” Such notice shall be deemed given when received by NAM Marketing.
Any cause of action brought by you against NAM Marketing or NAM Marketing’s affiliates must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
You may not assign this Agreement without NAM Marketing’s prior written approval. Any attempted assignment or transfer in violation of this paragraph will be null and void. NAM Marketing may assign its rights or delegate its obligations hereunder without notice to you and without your consent. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
No joint venture, partnership, employment, or agency relationship exists between you, NAM Marketing or any third party provider of the Services as a result of this Agreement or use of the Services.
NAM Marketing will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.
NAM Marketing’s failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights or provisions unless acknowledged and agreed to by NAM Marketing in writing.
If any provision of this Agreement is held to be invalid or unenforceable by a court, such provision shall be struck and the remaining provisions of this Agreement will remain in effect to the fullest extent under law. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
You and NAM Marketing acknowledge and agree that each of the Released Parties and their successors and assigns are intended third-party beneficiaries of this Agreement and that, upon your acceptance of this Agreement, each Released Party will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you, including but not limited to those terms pertaining to disclaimers, waivers, limitations of liability and indemnification, as a third-party beneficiary thereof. Except as expressly stated herein, including the rights of the Released Parties, there are no other third-party beneficiaries to this Agreement.
Revisions to this Agreement
NAM Marketing reserves the right to modify, change or replace the terms and conditions of this Agreement and its policies relating to the Services at any time, in its sole discretion. NAM Marketing will post the revised terms and conditions of this Agreement or policies on the Site and update the revision date at the top of this Agreement (the “Amendment Date”). Continuing to use the Services after the Amendment Date constitutes acceptance of the revised terms and conditions of this Agreement. You agree to visit the Site periodically to review any such changes to this Agreement to ensure that you understand the terms and conditions that apply to your use of the Services.
Consent to Electronic Communications
When you use the Services or send emails to NAM Marketing, you are communicating with NAM Marketing electronically. NAM Marketing may communicate with you by email or by posting notices on the Site or on your Account or through the Application (to your mobile device) or the Services. You consent to receive communications from NAM Marketing electronically, unless and until you withdraw your consent as described below. You agree that all agreements, notices, disclosures and other communications that NAM Marketing provides to you electronically satisfy any legal requirement that such communications be in writing. You should print a paper copy of this Agreement and any communication that is important to you and retain the copy for your records. If you withdraw your consent to receive communications electronically, you may not use the Services.
NAM Marketing reserves the right, in its sole discretion, to discontinue the provision of your electronic communications, or to terminate or change the terms and conditions on which NAM Marketing provides electronic communications. NAM Marketing will provide you with notice of any such termination or change as required by Law.
Withdrawal of Consent to Electronic Communications
If you have registered an Account with NAM Marketing and you later decide that you do not want to receive future communications electronically, you must close your Account by contacting 888-932-0202 and stop using the Services. There are no fees to close your Account with NAM Marketing. Any withdrawal of your consent to receive electronic Communications will be effective only after NAM Marketing has a reasonable period of time to process your withdrawal and only after all outstanding transactions have been settled.
Consent to Short Message Service (SMS) Communications
As part of your consent to electronic communications, you agree to receive SMS messages to each telephone number provided by you to NAM Marketing regarding the Services. You understand that such SMS may be placed using an automatic telephone dialing system or may include automated SMS messages. Your consent is required to allow NAM Marketing to contact you and to use the Services. As always, you agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.
Withdrawal of Consent to SMS Communications
If you have registered an Account with NAM Marketing and you wish only to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from NAM Marketing by replying “STOP” to any message you receive from NAM Marketing. Upon receipt of your “STOP” message, NAM Marketing will send you a SMS message to confirm that you have been unsubscribed. At that point, you will no longer receive any further SMS messages from NAM Marketing.
For More Information
If you have any questions regarding this Agreement, please contact NAM Marketing by sending an email to [email protected] or writing to NAM Marketing at 3025 S. Parker Rd Suite 610 Aurora, CO 80014, Attention: Customer Support.