Last Updated: May 1, 2020
Near, LLC (collectively, “Near”, “we,” “us,” “our,” or “Company”) is pleased to offer you a platform that provides a service marketplace connecting individuals and families (“Client”, “Clients”, “User” or “you”) with providers (“Provider”, Providers”, “User” or “you”) providing a wide range of essential end of life support services.
By clicking “I Accept” or by accessing or using our Services or by registering for an account to use the Site or Site Services (an “Account”, you agree to Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver set forth herein, you may not access or use the Services.
- The Services are not intended to provide instructions in the event of an emergency. If you believe your symptoms or situation is urgent or life-threatening, call 911 or your local emergency medical system immediately.
- Application of or reliance on any of the content, techniques, ideas, or suggestions accessed through the Services is at your sole discretion and risk.
- Do not delay or forgo seeking medical care from a health care provider if you have questions, concerns, or symptoms related to health topics or information that may be presented or referenced on the Services.
- We do not recommend or endorse any specific drugs, tests, Providers, products, procedures, opinions, “off-label” drug uses, or any other information that may be provided through Services.
- Nature of Services.
The Services enable you to connect with service providers providing end of life support services (collectively, the “Services”). The service providers who are delivering the Services shall be collectively referred to herein as “Providers.” The Services are intended to allow you to engage Providers for non-emergency end of life support services and needs.
Certain features of the Services may be subject to additional terms and conditions (“Additional Terms”). We may present Additional Terms to you when you activate or use a feature to which Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. For example, Additional Terms apply to the Services, as set forth below. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.
- Eligibility to Use the Services.
If you are not yet 18 years or older, or are a minor under applicable law, or are not legally able to form a binding agreement, a parent or legal guardian (“Parent/Guardian”) must accept these Terms on your behalf before you are permitted to use the App or Website and receive the Services. To use the Services as a User, you must be at least 13 years old. For younger children, a parent or legal guardian may authorize use of the Services provided that children under 13 years old may not manage an account in any way until they reach their country’s minimum age.
Specifically, to be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 13 years of age or older; (b) are a legal resident of the United States; (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (d) will only maintain one Account at any given time; (e) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times; and (f) agree to use your first name and your email address when registering (although you may use a fictitious name or initials after registration when using the Services).
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site and Site Services. Upon closure of an Account, Near may close any or all related Accounts.
If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
- Additional Terms
Dial 911 in the event of a medical emergency! The Services are not intended to provide instructions or help in the event of an emergency. If you believe your condition or situation is life-threatening, please call 911 or your emergency medical system immediately. Do not rely on or attempt to use the Services for any urgent medical needs.
The Services may be delivered virtually (as opposed to in-person), which may limit the scope and nature of the assistance provided to you. You hereby acknowledge these limitations and agree to proceed with the Services. You understand that the Services will be provided to you at the sole discretion of the Provider who is interacting with you, with no guarantee of outcome or results including, as applicable, any business result, diagnosis, treatment, or prescription or any other possible outcome.
Near, has contracted with service providers to provide a wide range of end of life support services including but not limited to art therapists, death doulas, end of life photographers, trust and estate planning attorneys, grief and bereavement specialists, legacy work, massage therapy, music therapy, sound therapy, and home funeral guides.
You acknowledge and understand that the Providers delivering end of life support services are not licensed healthcare providers, may be located outside of the U.S. and English may be a second language. The Services are not intended to diagnose, treat, prevent or cure any disease or condition. It is not intended to substitute for the advice, treatment and/or diagnosis of a qualified licensed professional. Providers, unless otherwise qualified to do so under applicable legal requirements in all applicable jurisdictions) may not make any medical diagnoses, claims and/or substitute for your personal physician’s care, and will not provide a second opinion or in any way attempt to alter the treatment plans or therapeutic goals/recommendations of your personal physician. It is the role of the Provider to partner with you to provide ongoing support and accountability as you and your loved ones create and administer an action plan to meet and maintain end of life support needs.
You acknowledge and agree that not every condition or need is appropriate for service or treatment via a virtual platform. The Provider will determine whether or not the services being requested is appropriate for a virtual session. None of the Providers delivering services are employees or contractors of Near as it does not provides, nor is it responsible, for any end of life support services that are provided to you. The Services are not available in every state, nor are they available at all times, and we reserve the right to limit participation in the Services based on Near’s staffing constraints, provider availability, or any other reason.
As with any service, there are potential risks associated with the use of end of life support services, which may include, without limitation, the following: (a) Delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the technology, or miscommunications between you and the Provider; (b) Security protocols could fail, causing a breach of privacy of personal information including medical information; and (c) Lack of access to your medical records or other information or ability to perform an in-person examination, which could result in negative outcomes (e.g. deteriorated or unimproved conditions,).
You certify that you are physically located in the state you select in the Service as your current location at the time of your receipt of the Service. Your ability to access and use the Service is conditioned on the truthfulness of this certification. The Providers that you access through the Service rely upon this certification in order to interact with you. If your certification is inaccurate, you agree to indemnify us and the Providers with whom you interact from any resulting losses, damages, costs, or expenses.
Assisted Suicide / Assisted Dying Services. Near does not permit Providers to offer assisted suicide, assisted dying services or any other related service.
Payment for Services: By providing a credit card or other payment method accepted by us (“Payment Method”), you are expressly agreeing that we are (or the service provider is) authorized to charge to the Payment Method for the total amount of the fees associated with your use of the Service, together with any applicable taxes (collectively, as applicable, a “Purchase”). If the Payment Method cannot be verified, is invalid or is otherwise not acceptable, your Purchase may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Purchase. If a payment is not successfully settled and you do not edit your Payment Method information or cancel your Purchase or account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated.
You agree that authorizations to charge your Payment Method remains in effect until you cancel it in writing, and you agree to notify us of any changes to your Payment Method. You represent and warrant that you are authorized to use the Payment Method and will not dispute charges for the Service that correspond to consultation fees or the co-payment required by your health plan. You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to your account must comply with applicable provisions of U.S. law. In the case of an ACH transaction rejected for insufficient funds, we may at our discretion attempt to process the charge again at any time within 30 days.
We will collect applicable sales tax on services for which we determine we have a duty to collect sales tax. If a service is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
You acknowledge and agree that fees for consultations may increase at any time.
Consent: By clicking “I accept” or by accessing or using the Service, you acknowledge and accept the risks identified above and the terms associated with the receipt of Services and you give your informed consent to receive such services under the Terms and the Additional Terms.
- Accounts, Account Security and Communication Preferences.
You may need to register for a user account (“Account”) to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password, and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.
As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account. By creating an Account, you also consent to receive electronic communications from Near (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
- Additional Account Information
- 6.1 Account Profile. To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading. All new Users must create a new and unique Profile. You agree that after creating your Profile, you will not change the identity of the User or transfer control to any other person to change the identity of the User.
- 6.2 Account Types. There are two primary Account types. Once registered for a Provider Account, Providers must create a membership in order to begin using the Services as a Provider. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
- 6.2.1. Client Account. You can register for an Account to use the Site and Site Services as a Client (a “Client Account”).
- 6.2.2. Provider Account. You can register for an Account and then create a membership to use the Site and Site Services as a Provider (a “Provider Account”).
- Contractual Relationship Between Client and Provider.
- 7.1. Service Contracts. If a Client and Provider decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Provider. Client and Provider have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Near is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Near and any User or a partnership or joint venture between Near and any User. Near is a software technology platform connecting Clients and Providers. Any and all services received through the platform is provided exclusively by the Provider and in no way should be construed as service, treatment, or advice being provided by Near. With respect to any Service Contract, Clients and Providers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Near’s rights and obligations under the Terms of Service, including this Agreement. Users are responsible for complying with any local requirements, including applicable laws, rules, and regulations. Near does not assume any responsibility for any consequence of using the Services.
- 7.2 Disputes Among Users. For disputes arising between Clients and Providers, you agree to abide by the dispute resolution process provided for in Section 18 of this Agreement and if no resolution is reached through arbitration, then in accordance with Section 19 of this Agreement. You agree that Near will not and is not obligated to provide any dispute assistance beyond what is agreed to in this Agreement. If Provider or Client intends to obtain an order from any arbitrator or any court that might direct Near or Near’s Affiliates to take or refrain from taking any action, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Near or Near’s Affiliates, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
- 7.3 Confidential Information. Users may agree to any terms they deem appropriate with respect to confidentiality provided that any and all such terms must comply in full with all applicable law in each applicable jurisdiction. It is the sole responsibility of Providers and Clients to ensure compliance with agreed-upon terms and applicable law and regulations. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section 7.3 (Confidential Information) applies. To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
- Reservation of Rights. We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (a) restrict, limit, suspend or terminate your and/or any other user’s access to the Services; (b) monitor any user’s use of the Services to verify compliance with these Terms and/or any applicable law; (c) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third-parties in such investigation; and (d) disclose information about any user’s use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
- Proprietary Rights.
We grant you a limited right to use the Services for your personal use. All original content, materials, features and functionality (including, without limitation, text, information, images, photos, graphics, artworks, logos, videos, audios, directories, listings, databases, and search engines) (the “Content”) are owned by Near and/or its licensors and may be protected by U.S. and foreign copyright, trademark and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable right and license to access and use the Services and Content solely for your personal, non-commercial use; provided, however, that such license does not include any right to (a) sell, resell our Services and the Content; (b) copy, reproduce, distribute, publicly perform or publicly display Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the Content other than for their intended purposes. Except for this limited licenses granted to you, we reserve all other rights. This license may be revoked and terminated by us at any time and for any reason. Any unauthorized use, reproduction or distribution of the Services or Content is strictly prohibited and may result in termination of the license granted herein, as well as civil and/or criminal penalties.
All trademarks, trade names and logos appearing on or through the Services are owned by us or licensed by us. The “Near” name and logo and all other Near names, marks, logos and other identifiers are trademarks and service marks of Near. Names, marks, logos and other identifiers of third parties, including third party health care providers, are trademarks and service marks of their respective owners. You may not use or display any Near trademarks, trade names, or logos without our prior written permission. We reserve all rights.
If you choose to provide us with any comments, suggestions, ideas or other feedback (“User Feedback”), you agree that we have an unrestricted right to use it, and you are not entitled to receive any compensation.
- User Supplied Material.
Our Services may allow you to upload or share messages, text, photos and other forms of media, materials or information (collectively, “User Content”) with your Providers. Except for the license you grant below, as between you and Near, you retain all rights in and to your User Content. You hereby grant Near a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Any User Content sent privately is the sole responsibility of the person that submitted it. Although Near reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services. Providers are solely responsible for ensuring full compliance with all applicable laws and regulations in every applicable jurisdiction.
- Third Party Links.
- Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
- Seek out or engage in providing assisted suicide or assisted dying services
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s Account without authorization from that user and Near;
- Copy, reproduce, sell, rent, lease, distribute, transfer, modify or make derivative works from the Services or any Content.
- Remove, alter or tamper with any copyright, trademark or other proprietary rights or legal notices contained in any Content obtained from the Services.
- Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services.
- Use the Services in any manner that could interfere in any way with the operation of the Services or any server, network or system associated with the Services, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Services or any server, network or system associated with the Services; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another’s account that you are not expressly authorized to access.
- Use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Services or any server, network or system associated with the Services, or to extract, collect, harvest or gather content or information from the Services.
- Frame or otherwise create a browser or border environment around any page or content of the Services, or deep-link to any internal page or area of the Services.
- Make any other use of the Services that violates these Terms or any applicable law.
To the fullest extent permitted by applicable law, you release Near and our owners, subsidiaries, affiliated companies, employees, shareholders, or directors (collectively, the “Near Parties”) from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a California resident, you hereby waive any rights you may have under California Civil Code Section 1542, which says “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” You also waive any rights you may have under any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You agree to indemnify, defend and hold harmless the Near Parties from and against any and all damages, liabilities, fines, penalties, losses, expenses, fees, and costs (including without limitation reasonable attorneys’ fees and costs) related to all claims, causes of action, charges, and investigations, arising out of or relating to: (a) your access to or misuse of the Services, or the Content; (b) any User Content and/or User Feedback you submit or transmit; (c) your violation of any of these Terms; (d) any activity related to your registration by you or any other person accessing the Services through your Account, including, without limitation, negligent or wrongful conduct; (e) your conduct in connection with our Services and/or (f) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.
Near reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- Disclaimer of Warranties.
You expressly agree that use of the Services and Content is at your sole risk. The Services are provided on an “as is” and “as available” basis. Near expressly disclaims all warranties of any kind, whether express or implied, any warranties of merchantability, fitness for a particular use or purpose, non-infringement, title, operability, condition, quiet enjoyment, value, and accuracy of data. Near makes no warranty that the Services or Content will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free; nor does Near make any warranty as to the results that may be obtained from the use of the Services or Content, or that defects in the Services or Content will be corrected, or that any information obtained through or in connection with the Services or Content will be accurate or complete. You understand and agree that any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage or loss of data that results from the download of such material and/or information. No advice or information, whether oral or written, obtained by you from Near or through the Services or Content will create any warranty not expressly made herein.
The Services and Content are not intended to provide a substitute for your own sound and reasonably prudent judgment, and are not intended to be for diagnosis or treatment. Persons using the Services and Content assume full responsibility for the use of the Services, Content, materials and other information provided, and agree that Near is not responsible or liable for any claim, loss, or damage arising from their use. Your reliance on the Services and Content obtained or used by you is solely at your own risk except as provided by law.
Some states may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. But, to the extent permitted by applicable law, we exclude all warranties.
- Limitation of Liability.
You understand that, to the extent permitted under applicable law, in no event will the Near Parties be liable to you for any direct, indirect, incidental, special, punitive, consequential or exemplary damages, including, without limitation, damages for loss of revenues, profits, goodwill, use, data or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to your use of the Services or any Content, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute or otherwise. To the fullest extent permitted by applicable law, in no event shall the maximum aggregate liability of the Near Parties (jointly) arising out of or in any way related to access or use of the Services or Content, exceed the greater of \$100 or the amount you paid to us in the one (1) month period immediately preceding the date on which your claim arose.
You further agree that the limitations of liability set forth above will survive any termination or expiration of these Terms and will apply even if any limited remedy specified herein is found to have failed its essential purpose.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, and as a result some of the above disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under applicable law.
- Mutual Rights of Termination.
You may terminate these Terms, for any or no reason, at any time, upon notice to Near. Near may terminate or suspend your use of the Services, your account, and/or your registration without notice, for any or no reason, and at any time. You understand that termination of your agreement with Near and your account will not entitle you to any refund and may involve deletion of your information and any content you uploaded using such Account. You agree that we will not be liable to you or any other party for any termination of your access to the Services or deletion of your Account or Content uploaded by you.
- Dispute Resolution; Arbitration.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Near and limits the manner in which you can seek relief from us, including a class action waiver. This Section 18 applies to all Disputes (unless excluded under Section 18.1) between you and the Near Parties.
- 18.1 Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Near agree (a) to waive your and Near’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services or Content, resolved in a court, and (b) to waive your and Near’s respective rights to a jury trial. Instead, you and Near agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
- 18.2. No Class Arbitrations, Class Actions or Representative Actions. You and Near agree that any Dispute arising out of or related to these Terms, the Services or Content is personal to you and Near and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Near agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Near agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
THIS AGREEMENT TO ARBITRATE DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THE ARBITRATION AGREEMENT WILL REMAIN IN FORCE.
WITHOUT LIMITING THE FOREGOING, THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY OTHER PARTY ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES OR CONTENT, AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
- 18.3. Federal Arbitration Act. You and Near agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
- 18.4. Notice; Informal Dispute Resolution. You and Near agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Near shall be sent by certified mail or courier to Attn: Legal Dept, Near, LLC, 3912 Yateswood Court, Raleigh, NC 27603. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 4 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Near cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Near may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
- 18.5. Process. Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Near agree that any Dispute must be commenced or filed by you or Near within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Near will no longer have the right to assert such claim regarding the Dispute). You and Near agree that (a) any arbitration will occur (i) in the State of North Carolina, County of Wake, or (ii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (c) that the seat of the arbitration shall be Raleigh, North Carolina and that state or federal courts of the State of North Carolina and the United States, respectively, sitting in the State of North Carolina, County of Wake, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards.
The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Near will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
- 18.6. Authority of Arbitrator. As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- 18.7. AAA Rules. The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
- 18.8. Severability. If any term, clause or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
- 18.9. Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: Attn: Legal Dept, Near, LLC, 3912 Yateswood Court, Raleigh, NC 27603. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes subject to the limitations set forth in Section 16 and in accordance with Section 19.
- Applicable Law; Venue.
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of North Carolina, without regard to conflict of law rules or principles (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of North Carolina and the United States, respectively, sitting in the State of North Carolina, County of Wake.
- International Users.
- Changes to these Terms.
We reserve the right to change our Terms at any time. Any changes that we make will become a part of our agreement with you when they are posted to our Digital Services. Your continued use of our Digital Services will constitute your agreement to the changes we have made. If we make material changes, we will post the amended Terms to our Digital Services, and update the “Last Updated” date above. We may also notify you by sending an email notification to the address associated with your Account or providing notice through our Digital Services. Revisions are effective and binding when posted on the Digital Services. The last date these Terms were revised is set forth at the top of these Terms.
- Apple Device Additional Terms.
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Terms”) are hereby made part of these Terms:
If these Apple Terms conflict with any other provision of these Terms, then the Apple Terms control with respect to access and use of the Digital Services via an Apple Device. Apple is not a party to these Terms and does not own and is not responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. The Apple App Store Terms of Service (the “App Store Terms of Service”) control to the extent of any conflict with these Terms with respect to an iOS App. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. In the event of any failure of the iOS App to conform to any applicable warranty provided by Near in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. Apple is not responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. It is not the intent of these Terms to limit Near’s liability beyond what is permitted by applicable law. In the event of any third party claim that an iOS App or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. In addition to the requirements of Section 3, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third-party beneficiary thereof. Please direct any questions, complaints or claims with respect to an iOS App to Near at the contact information provided below.
If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court should endeavor to give the effect to the parties’ intentions as reflected in the provision, and that the other provisions of these Terms remain in full force and effect.
The following sections will survive the expiration or termination of these Terms and the termination of your Account: all defined terms and Sections 2 through 25.
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Near relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Near. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Near’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
- 26.Contact Us.
Please contact us at [email protected] with any questions regarding these Terms.