IMPORTANT: PLEASE REVIEW THE ARBITRATION AND DISPUTE RESOLUTION AGREEMENT https://www.nutstechnologies.com/arbitration-agreement CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH NUTS (HERINAFTER DEFINED) ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY USING OR ACCESSING THE SOFTWARE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS (INCLUDING THE ABOVE-REFERENCED ARBITRATION AND DISPUTE RESOLUTION AGREEMENT) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
PLEASE READ THE TERMS (AS HEREINAFTER DEFINED) CAREFULLY BEFORE USING THE SOFTWARE. YOUR USE OF THE SOFTWARE INDICATES YOUR FULL ACCEPTANCE OF, AND AGREEMENT TO ABIDE BY, THE TERMS IN THEIR THEN-CURRENT FORM. IF YOU DO NOT ACCEPT THE TERMS, DO NOT USE THE SOFTWARE.
1. Introduction.
1.1. The Terms are between the individual consumer or business entity (individually, collectively, jointly, and severally, “you” or “your”) that uses or accesses the Software (as hereinafter defined), and NUTS Technologies, Inc. (“NUTS”).
1.2. By using or accessing the Software in any manner, you are bound by these Terms of Service, as well as the Incorporated Terms identified below and all other applicable terms, policies, notices, and documentation (collectively, the “Terms”). If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, (c) neither you nor the entity are barred from using the Software or accepting the Terms under the laws of the applicable jurisdiction, and (d) you intend for the Terms to be the equivalent of a signed, written contract.
1.3. The Terms govern your use of the Software. Except as otherwise specified, the Terms do not apply to Third-Party Products (as hereinafter defined), which are governed by their own terms.
1.4. The following policies, guidelines, and agreements (“Incorporated Terms”) are hereby incorporated into, and form an integral part of, the Terms to which you are agreeing to be bound:
Acceptable Use Policy https://www.nutstechnologies.com/acceptable-use-policy
Arbitration and Dispute Resolution Agreement https://www.nutstechnologies.com/arbitration-agreement
Beta Terms https://www.nutstechnologies.com/beta-terms
Privacy Policy https://www.nutstechnologies.com/privacy-policy-1
2. Certain Definitions. As used in the Terms, the following terms have the following meanings:
2.1. “Applicable Law” means any applicable law, rule, regulation, administrative, judicial, or governmental order, or legal process.
2.2. “On Premise Software” means portions of the Software made available to you for download and deployment within your environment.
2.3. “Software” means any website (including but not limited to https://www.nutstechnologies.com), mobile application, desktop application, plugin or other software or media platform that references or links to the Terms and is provided by or on behalf of NUTS or one or more of its affiliates, together with all Usage Data, documentation, data, information, feedback, or materials resulting therefrom or relating thereto (whether created or provided by or on behalf of NUTS, any User, or any other Person).
2.4. “Usage Data” means data generated as a result of use, configuration, performance and/or deployment of, or access to, Software.
2.5. “User” means an individual user of the Software.
2.6. “Your Users” means Users of the Software under your Account and on your behalf.
3. Eligibility.
3.1. The Software is available only to persons who are the age of majority and can form legally binding contracts under applicable law. Without limiting the foregoing, the Software is not intended to be used by individuals under the age of 18. If you do not qualify, please do not use the Software.
3.2. In order to use the Software, you must establish an account (“Account”) by registering with NUTS. You may be required to submit a valid means of payment for which you are authorized to license the Software. You will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your Account and payment information current. As part of the registration process, you will provide NUTS with a user name and password for your Account (together “Account Credentials”). Your failure to maintain accurate, complete, and up-to-date information, including having an invalid or expired payment method on file, may result in your inability to access or use the Software. Account Credentials are personal to each individual User, and are not transferrable. You hereby agree not to disclose your Account Credentials to any other Person (including, without limitation, any other User). You will be solely responsible for ensuring the security and confidentiality of your Account Credentials, and will be responsible for all activity in the Software occurring through or in connection with your Account Credentials. You are solely responsible for ensuring that any Account Credentials issued to you are known to and used only by one individual User. NUTS has no obligation to inquire as to the authority or propriety of any use of or action taken under your Account Credentials. NUTS reserves the right to refuse registration of, or cancel, Accounts and Account Credentials that violate the Terms.
3.3. You must provide certain devices, software, and data connections, which NUTS does not supply to use the Software. You consent to manually or automatically download and install updates to the Software. You are responsible for (i) obtaining the data network access necessary to use the Software; and (ii) acquiring and updating compatible hardware, software, equipment, and devices necessary to access and use the Software. Your third party service providers (including mobile network and Internet service providers) may charge, among other things, data and messaging fees based upon your access to or use of the Software. NUTS does not guarantee that the Software, or any portion thereof, will function on, or be compatible with, any particular hardware, software, equipment, or device.
4. Licenses and Intellectual Property.
4.1. Subject to your compliance with these Terms and payment of all fees and other amounts payable with respect thereto, NUTS hereby grants you a personal, revocable, non-transferable, non-exclusive, limited right to use the Software in the United States on your own behalf by those of Your Users identified in your Account. You may not use the Software on behalf of any other person or entity (each, a “Person”), and in any other location. You represent, warrant, and covenant to NUTS that: (i) all use of the Software by or through you or with your Account Credentials will be in accordance with the Terms; and (iii) you will notify NUTS immediately upon becoming aware of any violation of the Terms. The Software is licensed, not sold. You understand and acknowledge that, except for the limited rights expressly granted in this paragraph, no license, express or implied, by estoppel, inducement, or otherwise, to any NUTS patent, copyright, trade secret or other intellectual property right is granted by the Terms. All rights, titles and interests to NUTS’ intellectual property, including without limitation those embodied in the Software, are reserved by, and remain with, NUTS. You must comply with all technical protections in the Software that only allow you to use it in certain ways. The On Premise Software requires a valid license key in order to install and run the On Premise Software (the “License Key”). The License Key is unique to you and sets forth the number of Your Users that may access the On Premise Software. You may not exceed the limits of the License Key. You are not permitted to make copies of the License Key or share the License Key with any third parties. You agree to keep On Premise Software in a secure environment with access limited to Your Users. You also agree to maintain physical control of the On Premise Software and keep the On Premise Software within the United States.
4.2. The Software may enable you to create, post, store, send, and receive content, such as text, images, videos, and other materials (collectively, “Your Content”). Your Content remains your property, and you control, through your configuration and administration of the Software and what you elect to send to NUTS, access to Your Content. You are responsible for reviewing the default settings and onboarding materials, and for properly configuring the Software to fit your security and operational needs. By using the Software (directly or indirectly), you grant to NUTS a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers), irrevocable license to use, copy, disclose, distribute, and display Your Content, to provide, maintain, update, and improve the Software, as permitted by Applicable Law, to perform security and operations management, to protect against fraudulent or illegal activity, to create statistical and other analyses, for research and development purposes, in aggregated or deidentified form, and/or to improve and develop NUTS’ products and services. For avoidance of doubt, NUTS owns and retains all rights in, all data and information related to the provision, performance, operation and use of the Software, including information generated by your use of the Software (including, without limitation, automated reporting in the Software that identify to NUTS and analyze use and performance of Software), which data constitutes NUTS’ sole property and constitutes part of the Software.
4.3. It is expressly understood, acknowledged and agreed that you may, from time to time, provide to NUTS suggestions, comments and feedback regarding the Software (collectively, “Feedback”). You hereby assign to NUTS, your entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in such Feedback including without limitation, any modifications, ideas, discoveries, inventions or improvements to the Software which you may propose, suggest, provide or make or which you and NUTS may jointly make. Accordingly, NUTS shall have all right, title and interest in and to such Feedback and all other rights assigned to it to use same as NUTS shall decide in its sole discretion, including without limitation, sell, license or assign same to third parties. Each time you disclose or provide any Feedback to NUTS or use the Software, you shall be deemed to represent and warrant the following to NUTS: (i) such Feedback does not include confidential information; (ii) if such Feedback includes proprietary information, such proprietary information is owned solely by you or is duly licensed to you, which license permits such assignment thereof to NUTS and exclusive use by NUTS as contemplated by the Terms; (iii) disclosure and use of such Feedback by NUTS does not and will not breach the terms of any agreement, duty, or obligation to which you or such Feedback is subject; and (iv) neither such Feedback, nor your submission, uploading, publishing or otherwise making available such Feedback as contemplated herein, will infringe, misappropriate or violate any intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any Applicable Law.
4.4. The Software is the property of NUTS and/or its licensors, is not the property of any User, and is protected by copyright and other intellectual property and proprietary rights. You agree not to remove any copyright, trademark or other proprietary notice or legend contained in or on the Software. NUTS and other names and indicia of NUTS' products and/or services are exclusive trademarks and service marks of NUTS. Other product and company names, trademarks and service marks appearing in the Software are the intellectual property of their respective owners. You may not use the Software for any purpose other than as necessary to access and use the Software in accordance with the Terms, and you may not disclose the Software to anyone other than Your Users for the purpose of using the Software in accordance with the Terms.
4.5. The Software may be made available or accessed in connection with, or may contain links to, third party websites, applications, software, services, or content (including advertising, “Third Party Content”; the providers of such content, collectively, “Third Party Content Providers”) that NUTS does not control. You acknowledge that different terms of use and privacy policies (“Third Party Terms”) may apply to your use of such Third Party Content, and your access to and use of the Software is subject to all applicable Third Party Terms. NUTS does not endorse any Third Party Content, and in no event shall NUTS be responsible or liable for any Third Party Content, Third Party Terms, or products or services of any Third Party Content Provider. Additionally, each Third Party Content Provider will be a third-party beneficiary to the Terms if you access or use any Third Party Content provided by or on behalf of such Third Party Content Provider. The Third Party Content Providers are not parties to the Terms and are not responsible for the provision or support of the Software. NUTS has entered into arrangements with one or more Third Party Content Providers for hosting services that are essential to the Software, incorporated within the Software and without which the Software could not be provided to you. NUTS may, in its discretion and without liability to you, decide to no longer support certain Third Party Content or migrate the Software to different Third Party Content.
4.6. The Software may contain software (“Open Source Software”) that is licensed under a license approved by the Open Source Initiative or similar freeware license, with terms requiring that such software code be (i) disclosed or distributed in source code or object code form, (ii) licensed for the purpose of making derivative works, and/or (iii) redistributed under the same license terms. NUTS makes available in the applicable documentation information regarding Open Source Software incorporated in the Software to the extent required by the respective Open Source Software licenses.
4.7. From time to time, NUTS may collect Usage Data generated in connection with your use of Software (e.g., technical information about your operating environment and sessions, systems architecture, devices, product versions, Users, and encrypted packet transmittal). Usage Data does not include Your Content. NUTS may collect Usage Data for a variety of reasons, such as to identify, understand, and anticipate performance issues and the factors that affect them, to provide updates and personalized experiences to customers, and to improve the Software. Details on Usage Data collection practices are set forth in the Privacy Policy.
5. Conduct.
5.1. The On-Premise Software is provided in, and may only be used in, machine-readable object code form. You may make a copy of the On-Premise Software solely for backup and archival purposes. Such copy must reproduce and include NUTS’ copyright notice, and the copies and the media on which they are stored shall be and remain the property of NUTS and the Terms shall apply to all such copies as it applies to the Software.
5.2. You shall not, directly or indirectly, engage in or, permit any other Person to engage in, any of the following actions: (i) decompile, disassemble, modify, translate, or reverse engineer the Software or otherwise attempt to obtain the source code for the Software; (ii) sell, license, sublicense, rent, lease, timeshare, assign, pledge, or otherwise encumber the Software or permit any other Person to use the Software; (iii) use any name, trade mark, service mark, logo(s), or other intellectual property of NUTS without NUTS’ prior written consent in each instance; (iv) use the Software for any purpose other than as expressly permitted hereby; (v) use the Software to develop or assist in the development of any website, platform, software, or technology competitive with or similar to the Software or any portion thereof (including, without limitation, including any similar ideas, features, functions or graphics); (vi) modify, alter, tamper with, translate, repair or create derivative works based on or using the Software; (v) use the Software in an application services provider, service bureau or similar capacity; (vi) disclose to any third party the results of any comparative or competitive analyses of the Software; (vii) violate or circumvent any restrictions in or security of the Software; (viii) create Internet "links" to the Software or "frame" or "mirror" the Software; (ix) perform or fail to perform any other act which would result in a misappropriation or infringement of NUTS’ intellectual property rights; (x) attempt to use or gain unauthorized access to NUTS’ or to any third party's networks or equipment; (xi) attempt to probe, scan or test the vulnerability of the Software, or a system, account or network of NUTS, any User, or any NUTS customer or supplier; (xi) engage in fraudulent, offensive or illegal activity, or any activity that infringe any intellectual property rights or privacy rights; (xii) transmit through the Software any data or information without the legal right to do so; (xiii) use Software to transmit unsolicited bulk or commercial messages or worms, Trojan horses, viruses, corrupted files or any similar items; (xiv) restrict, inhibit, interfere or attempt to interfere with the ability of any Person to use or enjoy the Software; or (xv) cause a performance degradation to any facilities used to provide the Software. You will obtain all necessary rights, permissions and consents associated with technology, hardware, software, equipment, devices or data that you use or install with, or integrate to or from, the Software. You will cooperate with NUTS’ reasonable investigation of Software outages, security issues and any suspected breach of the Terms.
6. Availability. The Software may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. NUTS may restrict the availability of the Software or certain areas or features thereof, to enforce capacity limits, maintain the security or integrity of its servers, or carry out maintenance of the Software. NUTS may improve, enhance and modify the Software and remove, modify, or add features and functionality thereof from time to time in its sole discretion. NUTS has no obligation for Software installed or used beyond the licensed use, whose original identification marks have been altered or removed, or for any Software for which payment has not been received. Without limiting the foregoing, NUTS is not responsible for problems that arise from: (i) your, any User’s or a third party’s accident or neglect; (ii) any third party items or services with which the Software is used or other causes beyond NUTS’ control; (iii) installation, operation or use not in accordance with NUTS’ instructions or the Terms; (iv) use in an environment, in a manner or for a purpose for which the Software was not designed; or (v) modification, alteration or repair by anyone other than NUTS.
7. Indemnification. You will indemnify, defend, and hold harmless NUTS and all other Covered Persons (hereinafter defined) against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees and court costs), and damages based on, arising out of or relating to: (i) your use of or inability to use the Software (including any such use resulting from or relating to your Account Credentials); (ii) any breach of the Terms or any representation, warranty or covenant made by you herein; (iii) your violation of any Applicable Law or any third party's rights; or (iv) your infringement of any intellectual property right.
8. Termination. NUTS may modify, suspend, or terminate your Account or your access to or use of the Software at any time and for any reason, permissible by Applicable Law, including if NUTS determines, in its sole discretion, that you or any of Your Users have violated the Terms, or created harm, risk, or possible legal exposure for NUTS, any Covered Person, any User, or others. In the event your use of the Software is suspended or terminated, the Terms will continue to apply to your past use of the Software in the form in which they then existed at the time of the subject use. Termination of your access to and use of Software shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to NUTS. Immediately upon termination hereof or within 10 days of NUTS’ written request at any time, you will return to NUTS or destroy all Software, and will provide written certification of such return or destruction. Without limiting the foregoing, these Terms shall survive termination of your Account or your use of or access to the Software for any reason.
9. Disclaimers.
9.1. You are solely responsible for: (a) Your Content and use of the Software, including making appropriate use of the Software to ensure a level of security appropriate to the risk in respect of Your Content; (b) securing your Account Credentials; (c) protecting the security of Your Content when stored in, and in transit to and from, the Software; (d) taking appropriate steps to securely encrypt and/or backup Your Content; (e) properly configuring the Software and using available features and functionalities to maintain appropriate security in light of the nature of Your Content uploaded to and used with the Software; and (f) reviewing the security of the Software and evaluating for itself whether the Software will meet your needs, including with respect to any of your obligations under Applicable Law. For its own operational efficiencies and purposes, NUTS may from time to time back up data on its servers, but is under no obligation or duty to you to do so under the Terms or otherwise. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP SEPARATELY YOUR FILES AND DATA. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL NUTS BE LIABLE TO YOU, YOUR USERS, OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND OR UNDER ANY LEGAL THEORY, FOR LOSS OF FILES AND/OR DATA. NUTS DOES NOT ACCEPT LIABILITY FOR LOST DATA OR INFORMATION RESULTING FROM YOUR BACKUP ACTIVITIES (OR FAILURE TO BACKUP), ANY RESTORATION OF DATA OR INFORMATION, OR FOR COMPLIANCE WITH APPLICABLE LAW, SPECIAL RULES, OR OTHER REQUIREMENTS THAT MAY APPLY TO YOUR CONTENT. You agree to indemnify, defend and hold harmless NUTS from any and all claims or liability against NUTS arising from or relating to Your Content.
9.2. NUTS makes no warranty that the Software will be uninterrupted or error-free or as to the accuracy, completeness, suitability, or result obtained from the use of the Software. ALL SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING OF THE SOFTWARE OR ANY OTHER MATERIALS; AND (ii) ANY WARRANTIES OF TITLE OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF, ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. WITHOUT LIMITATION, YOU ACKNOWLEDGE AND AGREE THAT NUTS DOES NOT MAINTAIN COPIES OF YOUR ENCRYPTION KEYS. NUTS HAS NO ABILITY TO REGENERATE OR RECOVER LOST ENCRYPTION KEYS, NOR CAN NUTS ACCESS ENCRYPTED DATA. NUTS SHALL NOT BE RESPONSIBLE FOR ANY COSTS, EXPENSES OR OTHER LIABILITIES YOU MAY INCUR AS A RESULT OF YOUR INSTALLATION OR USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO ANY DEVICE, SOFTWARE OR DATA OR ANY LOSS OF DATA (INCLUDING ANY OF YOUR CONTENT). YOU EXPRESSLY ASSUME ALL LIABILITIES AND RISKS, FOR USE OR OPERATION OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE OR COMMUNICATIONS PROVIDED BY ON BEHALF OF NUTS WILL CONSTITUTE PERSONAL, LEGAL, TAX OR FINANCIAL ADVICE OR CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, NUTS’ WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NUTS, THE THIRD PARTY CONTENT PROVIDERS OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, CONSULTANTS, ADVISORS, LICENSORS, OR EMPLOYEES (COLLECTIVELY, “COVERED PERSONS”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE TERMS, THE SOFTWARE, OR ANY USE OF OR INABILITY TO USE THE SOFTWARE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ANY COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY COVERED PERSON’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE TERMS, WHETHER INCURRED WITH RESPECT TO ONE CLAIM, OR CUMULATIVELY INCURRED FROM MULTIPLE RELATED OR UNRELATED CLAIMS ARISING UNDER THE TERMS FROM TIME TO TIME, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, DEATH OR PERSONAL INJURY OR FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, THE LIABILITY OF COVERED PERSONS FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. The limitations, exclusions and disclaimers stated in the Terms apply to all disputes. The terms of this Section are agreed allocations of risk constituting part of the consideration for the provision of Software hereunder and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a Person has been advised of the possibility of the liabilities
11. Verification. You shall, from time to time upon NUTS’ request, promptly provide NUTS with a certification that states that you are not, to the best of your knowledge upon reasonable due diligence, in breach of the Terms. NUTS shall at its own expense, have the right, from time to time upon reasonable advance notice, to verify your use of or access to the Software by accessing, or directing an auditing firm to access, your premises, systems, applications, records and other information as may be reasonably necessary to verify your records and practices related to your access to and use of the Software. If a verification or usage report reveals that you have exceeded the scope of your license grant for Software during the period reviewed, then NUTS will have the right to invoice you in accordance with the applicable Terms then in effect. If any verification determines you have violated the Terms, in addition to any remedy to which NUTS may be entitled at law or in equity, you shall be liable for the reasonable cost of such verification.
12. Trade Compliance. The Software, together with any services and related technology provided under the Terms and all information, data, and materials resulting therefrom, based thereon, available therein, or relating thereto (including, without limitation, all documentation and Feedback, collectively, the “Materials”) are for your own internal use within the United States only, strictly in accordance with the Terms, and not for resale, export, re-export or transfer. In no event will any User use, access, store, or transfer any Software or Materials outside of the United States. Without limiting the foregoing, you are subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred in compliance with such laws, including, without limitation, export licensing requirements, end user, end use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. You represent and warrant that you (a) have not and will not violate, or cause any Person to be in violation of, any applicable anti-bribery or anti-corruption law (including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.S. domestic bribery statute in 18 U.S.C. 201, the U.S. Travel Act, or the UK Bribery Act 2010), anti-kickback laws, anti-money laundering and anti-terrorist financing laws, sanctions, embargoes, export controls, import controls, anti-fraud laws, or any other Applicable Law; (b) have not used, and will not use or apply, any Software or Materials in violation of Applicable Laws; (e) are not, and will ensure that Your Users are not, (i) nationals, residents, agents or representatives of Iran, Cuba, North Korea, Syria, the Crimea Region of Ukraine, or any other country, territory, or region subject to comprehensive U.S. sanctions; (ii) on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (each such list, a “Sanctions List”); (iii) an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on a Sanctions List; or (iv) otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization; (f) shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary; (h) shall cooperate with NUTS to ensure compliance with all Applicable Laws; and (i) will cause Your Users to comply with your obligations in the Terms. A violation of the foregoing representations, warranties, or covenants will constitute a material breach of the Terms, and, in the event of such a violation, NUTS may, at its sole option, terminate your Account for cause and without further liability or obligation on the part of NUTS. Any such breach will entitle NUTS to seek to be indemnified by you and/or obtain injunctive and other emergency or equitable relief, in addition to any other remedies which may be available under applicable law.
13. Miscellaneous.
13.1. NUTS controls and operates the Software from its headquarters in the United States of America, and NUTS makes no claim that the Software may be lawfully used outside of the United States. Access to the Software or certain other Materials may not be legal by certain Persons or in certain countries. If you access the Software from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer the Software (or any portion thereof or any rights thereto granted by NUTS) except as authorized by Applicable Law. The rights and remedies of NUTS and your obligations in this Agreement are cumulative and in addition to NUTS’ rights and remedies and your obligations under any other agreement or disclaimer and any agreement between you and any third party.
13.2. You agree that NUTS may add your name and logo to its customer list and identify you as a NUTS customer on NUTS’ website, and otherwise use your name and logo in connection with NUTS’ marketing activities.
13.3. You agree that your license to the Software is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by NUTS regarding future functionality or features.
13.4. NUTS provides Software for U.S. federal government end use solely in accordance with the following: Government technical data and rights related to Software include only those rights customarily provided to the public as defined in the Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFARS 252.227-7015 (Technical Data–Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation). If a government agency has a need for rights not conveyed under the Terms, it must negotiate with NUTS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
13.5. NUTS reserves the right, in its discretion, to change, modify, add to, or remove portions of the Terms (collectively, “Changes”), at any time. NUTS will notify you of Changes by sending an email to the address identified in your Account and by posting a revised version of the Terms to the Software. Your continued use of the Software following notice of the Changes (or posting of the Terms incorporating the Changes in the event your email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Software. You may not modify the Terms or any of the policies or guidelines governing the Software without NUTS' express prior written consent.
13.6. The Terms, as modified from time to time, constitutes the entire agreement between you and NUTS with respect to the subject matter hereof. The Terms replace all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. The Terms will be binding on and will inure to the benefit of the legal representatives, and permitted successors and assigns of the parties hereto. NUTS may assign the Terms in whole or in part at any time without your consent. You will not, in whole or part, assign or transfer any part of the Terms, whether licenses or any other rights, interests or obligations, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order or otherwise without NUTS’ prior written consent. Any attempted transfer or assignment by you that the Terms do not permit will be null and void.
13.7. You consent to receive electronically any communications from NUTS. NUTS may communicate with you through the email address specified in your Account or by posting notices in the Software. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any requirement that such communications be in writing. All notices from NUTS intended for receipt by you shall be deemed delivered when sent to the email address specified to NUTS in respect of your Account. Any notice to NUTS that is required or permitted by the Terms shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to legal@nutstechnologies.com or when delivered in person or two (2) business days after mailed by first class, registered or certified mail, postage prepaid, to "NUTS Technologies Inc. c/o Yoon Auh or Sotirios Triantafillou 336 Hazel Ave. Unit 517 Glencoe Il. 60022-2600".
13.8. NUTS will have no liability to you, any User, or any third party for any failure by NUTS to perform its obligations under the Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of NUTS, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, pandemic, or civil commotion or other force majeure event.
13.9. The Terms shall be subject to the Arbitration and Dispute Resolution Agreement https://www.nutstechnologies.com/arbitration-agreement and governed and construed in accordance with Illinois law, without regard to principles of conflicts of laws. YOU HEREBY CONSENT TO, AND WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS WITH RESPECT TO, THE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN COOK COUNTY, ILLINOIS (USA). The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Terms and is hereby expressly excluded. The Terms shall not require arbitration of actions brought in small claims court, or any action to seek injunctive or other equitable relief. Without limiting the foregoing, you acknowledge that in the event of your breach or threatened breach of the Terms, NUTS would suffer irreparable injury not compensable by money damages and for which NUTS would not have an adequate remedy available at law. You acknowledge that NUTS, in addition to any other remedies it may have, shall, in the event of any such breach or threatened breach, be entitled to equitable relief, including, without limitation, temporary and permanent injunctive relief, without posting of any security or bond and without proof of actual damages or loss. The foregoing shall be in addition to and without prejudice to such other rights as the NUTS may have under the Terms or Applicable Law.
13.10. If any portion of any provision of the Terms are found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of the Terms shall remain in full force and effect