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

Last updated: September 4, 2018

Welcome aboard. We believe in transparency and want you to know and understand your and our rights when using our apps, websites and services.

Please read these Terms of Service and End-User License Agreement ("Terms") carefully before clicking the "I Agree" button, downloading or using this Application or using any Nielsen-Kellerman website (nkhome.com, kestrelmeters.com, kestrelinstruments.com, nksports.com, and blueoceanmegaphones.com, collectively "NK Websites").

By clicking the "I Agree" button, accessing, uploading, downloading or using the Application or an NK Website, or by indicating your assent to these Terms by creating an account, clicking "sign up" or any similar mechanism, you are agreeing to be bound by the Terms. If you do not agree to the Terms, do not click on the "I Agree" button or use the Application or the NK Website.

Overview

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

Terms of Use

These terms and conditions ("Terms") apply to the use of all websites, software and applications of Nielsen-Kellerman Co. and affiliates worldwide ("NK", "we", "us", or "our") that post a link to these Terms. We make our apps, websites, software and related services (together, "NK Services") available to you subject to these Terms, which include our Privacy Policy, other policies on the NK Websites, and any guidelines, rules, additional terms or disclaimers that may be posted and updated on the NK Services or on notices we send you. By creating an account, registering or accessing, using or uploading or downloading any information or materials to or from the NK Services, you are agreeing to these Terms. You may not access or use the NK Services if you don't agree to these Terms.

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

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

You must be 13 years old or older to use the NK Services. By creating an account, registering or accessing, using or uploading or downloading any information or materials to or from the NK Services, you represent that you are 13 years old or older.

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

Registration

Certain NK Services require registration. You represent that all information you provide about yourself for registration purposes ("Registration Data") is true, accurate, current and complete information and you agree to keep such information up to date. You agree that we may use your Registration Data to provide NK Services to you and as otherwise set forth in these Terms. If we have grounds to suspect that such information is inaccurate or not current, we may suspend or terminate your account and access to NK Services.

Security and System Reliability

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

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

We aim to keep the NK Services available twenty-four (24) hours a day, seven (7) days a week and to maintain saved information. However, we shall not be liable for lost altered, or corrupted information or non-availability of the NK Services.

Payments and Fees

To pay any fee, you must designate and provide information about your preferred payment method (e.g., credit card, iTunes or Google Play, etc.) ("Payment Method"). If you provide your payment information, you authorize us and third-party NK Service providers, payment card networks and payment processors to receive, store and encrypt your payment information. You may switch to a different Payment Method or update your information by logging into your NK Services account. If you signed up through the Google Play or iTunes store, you may change your Payment Method through the corresponding store account. No refunds or credits will be provided by us other than as set forth in these Terms. If your payment provider determines that there are fraudulent charges on your account resulting from use of your Payment Method at the NK Services, please contact us immediately at info@nkhome.com or by calling +1 610-447-1555.

Certain functionality of the NK Services may require payment of additional fees or premium membership fees. All fees are subject to applicable taxes and are subject to change at any time upon reasonable advance notice. Membership fees will be billed in advance automatically at the start of the monthly or annual period, as applicable, and will auto-renew until your membership is downgraded or terminated. You may cancel your premium membership at any time, as described below. Unless otherwise required by applicable law, fees paid in advance are not refundable. Depending on where you live, you may be entitled to change your mind and receive a full refund within fourteen (14) days, provided that you have not logged in or otherwise started to use the premium membership services.

Paid Membership and Services

Paid membership and services may start with a free trial. If you begin your subscription with a free trial, we will begin billing your Payment Method for monthly membership fees at the end of the free trial period of your subscription unless you cancel your membership prior to the end of the free trial period. Your Payment Method will be authorized for up to approximately one month of paid NK Services as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial period.

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

Deactivation

You may deactivate your account at any time by logging into your NK Services account and selecting "Deactivate". At your request, we will delete your personally identifiable information. To do so, please contact us at privacy@nkhome.com or call us at +1 610-447-1555. Deletion of such information is permanent.

Content

Limitations on Use

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

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

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

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

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

You may not use the NK Services to publish or distribute any information (including software or other content) which is illegal, which violates or infringes upon the rights of any other person, which is defamatory, abusive, hateful, profane, pornographic, threatening or vulgar, which contains errors, viruses or other harmful components, or which is otherwise actionable at law. We may at any time exercise editorial control over Content.

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

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

The NK Services are not intended to be used for confidential information and you agree that you will not submit any confidential information other than Registration Data and Payment Method information.

You agree to comply with all relevant local, state, national and international laws, statutes, ordinances and regulations that apply to your use of the NK Services and the Content. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You must comply with applicable third party terms of agreement when using the Application, e.g. wireless data service provider agreements.

Feedback, Suggestions, and other Submissions

We do not claim ownership of any content, application or other material that you or third parties provide to us (including feedback and suggestions) or post, upload, input or submit on or through the NK Services, including our blog pages, message boards, chat rooms and forums, for review by the general public, registered users or by the members of any public or private community, whether publicly posted, privately transmitted, or submitted through a third party API (e.g. a photograph submitted via Instagram) ("Submissions") and we are not responsible for their content, accuracy or compliance with relevant laws or regulations. However, by posting, uploading, inputting, providing or submitting ("Posting") your Submissions you grant us and our sub-licensees a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to display, publish and otherwise use your Submissions in any format in connection with the operation of our respective businesses. We are under no obligation to display or otherwise use any Submissions you may provide, and we may remove any Submissions at any time in our sole discretion. By Posting Submissions, you also warrant and represent that you own or otherwise control all of the rights to your Submissions including, without limitation, all the rights necessary for granting the permission specified above. We shall have the right, but not the obligation, to monitor Submissions to determine compliance with these Terms and any operating rules we establish and to satisfy any law, regulation or authorized government request. We shall have the right in our sole discretion to edit, refuse to post, or remove any Submissions. Under no circumstances will we be liable in any way for any information made available through the NK Services, including, but not limited to, any errors or omissions in any such information, or any loss or damage of any kind incurred as a result of the use of any information made available on the NK Services. You agree to bear all risks associated with the use of any information available in connection with the NK Services, including any reliance on the accuracy, completeness, or usefulness of such information.

You agree that we are not responsible for, and do not endorse, Content posted on the NK Services. If your Submission violates these Terms, you may bear legal responsibility for that Submission. As between you and us, any Submission will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Submission does not place us in a position that is any different from the position held by members of the general public, including with regard to your Submission. Your Submission will not be subject to any obligation of confidence by us other than as set forth in the Privacy Policy.

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

Links

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

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

Maintenance

NK, and not the Distributor, is solely responsible for providing any maintenance and support services with respect to the Application as required under applicable law. You acknowledge that Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.

Communication with Others

The NK Services may function as a venue to connect members in a virtual information place. NK is not directly involved in the actual communications between users of the NK Services and has no control over the truth, accuracy, quality, legality, or safety of any Postings by users of the NK Services. NK shall have no responsibility to confirm the identity of members or to confirm or verify the qualifications of users.

Disclaimer of Warranties and Liability

Neither NK nor its suppliers or licensors makes any warranty whatsoever, including without limitation, that the operation of the NK Services will be uninterrupted or error-free; that any defects will be corrected; that the NK Services, including the server that makes it available, is free of viruses or other harmful components; or as to the accuracy, completeness, reliability, availability, suitability, quality, non-infringement, operation or result obtained from the use of any Content, product or service provided on, accessible from or distributed through the NK Services.

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

To the extent permitted under applicable law, no responsibility is assumed for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any ideas, instructions, methods, products or procedures contained in the NK Services.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NK, ITS AFFILIATES OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES, PERSONAL INJURY (INCLUDING DEATH), LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE NK SERVICES OR CONTENT, OR SHALL THE LIABILITY OF NK, ITS AFFILIATES OR ITS SUPPLIERS AND LICENSORS EXCEED A SUM EQUAL TO THE FEES PAID BY YOU HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF CALIFORNIA LAW APPLIES TO YOU, IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

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

You acknowledge that NK, not Distributor, is responsible for addressing any claims relating to the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Application.

Indemnity

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

Proprietary Rights

The term Nielsen-Kellerman, the NK logo and other NK logos and product and NK Service names are the exclusive trademarks of NK and are owned by us or our affiliates and you may not use or display such trademarks in any manner without our prior written permission.

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

NK reserves all rights not expressly granted hereunder.

Application License

Acknowledgment.

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

License

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

Infringement Claims

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

If you fail to comply with all of the requirements of this section, your notice may not be valid. The information provided in a notice of copyright infringement may be forwarded to the person who posted the allegedly infringing content. In the U.S., under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. Please see www.copyright.gov or search "DMCA takedown notice" for more information about how to prepare or respond to a DMCA notice.

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

Jurisdictional Notices

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

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

Dispute Resolution

Arbitration

The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to the NK's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), all claims arising out of or relating to this Agreement and your use of the NK Services shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitration shall be in Philadelphia, Pennsylvania. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and NK hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if NK is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court. You agree that any claim you may have arising out of or related to your relationship with NK and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Class-Action Waiver

The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception—Litigation of Small-Claims-Court Claims

Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.

Choice of Law and Forum

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

International Use

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

Termination

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

General

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

Updates and Product-Specific Terms

Updates to these Terms

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

Product-Specific Terms

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

Products

NK may make improvements and/or changes in the NK Services, products, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the NK Services. NK reserves the right at any time to modify or discontinue, temporarily or permanently, the NK Services or any portion thereof with or without notice. NK shall not be liable to you or to any third party for any modification, suspension or discontinuance of the NK Services.

Contact Us

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