- Welcome to emergencyplumbernj.com (ES24.COM)
1.2 This Agreement constitutes a legal agreement between you (“you” or “User”) and Nexty LTD a company incorporated in England and Wales with registered number 10604508 whose registered office is at NextY Ltd, 12 Bridewell Place, Third Floor East, EC4V 6AP, London, United Kingdom (“Nexty” or “us”). This Agreement governs your use of our services and platform (“ES24.COM”).
1.3 By accessing, using or registering with ES24.COM or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement, as we may publish from time to time. If you do not agree to accept and be bound by this Agreement, you must immediately stop using ES.COM.
1.4 To the extent permitted and except where prohibited by applicable law, this Agreement include:
(i) Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 60 days prior to the initiation of any claim.
(ii) Your agreement that no claims can be adjudicated on a class basis.
(iii) Your agreement that ES24.COM is provided “as is” and without warranty.
(iv) Your agreement that (a) ES24.COM is solely a communications platform that facilitates transactions between professionals (the “Professionals”) and potential customers (the “Potential Customers”) looking for professional services (the “Service”), (b) the Service is performed by Professionals as third parties, (c) Nexty has no liability for any Service or any acts or omissions of third parties, nor is responsible for the conduct, whether online or offline, of any user.
(v) Your agreement to release Nexty from liability based on claims relating to the Service and otherwise and your agreement to the limitation of time within which a claim can be brought.
(vi) Your agreement to indemnify Nexty from claims due to your use, misuse or inability to use ES24.COM, the Service, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to ES24.COM.
(vii) Your consent to any modifications or amendments to this Agreement.
1.5 Your acceptance of this Agreement includes allowing us to use third-party service providers to provide ES24.COM to you and the rights granted to us are extended to these third parties to the degree necessary in order for ES24.COM to be provided.
1.6 By using ES24.COM, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
- What is emergencyplumbernj.com and how it works
2.1 ES24.COM is a platform that facilitates transactions between professionals (the “Professionals”) and potential customers (the “Potential Customers”) looking for professional services (the “Service”). We are never a buyer and/or a seller. We provide a venue for you to complete possible transactions. This means that in addition to this Agreement, you, as Professional or Potential Customer, will have other contractual relationships respectively with Potential Customers or Professionals. Whatever Service you, as Potential Customer, purchase will be subject to the terms and conditions of the Professionals. Any contracts related to the provision of the Service are solely between you and the Professionals. The Professionals are responsible for the provision of the Service and for dealing with any claims or any other issue arising out of or in connection with the contract between you, as Potential Customer, and them.
2.2 We check the backgrounds of the Professionals. However, you, as Potential Customer, should exercise common sense to protect yourself, just as you would when interacting with any person whom you do not know. We have no responsibility or liability for the transaction between you and the Professionals related to the Service, including, but not limited to, a warranty of good services, warranty of fitness for a particular purpose or compliance with any law, regulation, or code. You hereby acknowledge and agree that we are providing our services as an intermediary and that we shall not be held responsible or liable for any actions or omissions performed or omitted by the Professionals. By using ES24.COM you agree to hold Nexty free from the responsibility for any liability or damage that might arise out of the Service.
2.3 When you, as Professional, register to use ES24.COM, you will provide Us some personal information (for example: contact Information such as email addresses and telephone numbers). You must not furnish false personal information and data and you must ensure that such information that you provide remain valid.
- Some basics rules for use of ES24.COM you should know
3.1 Potential Customers agree to treat Professionals courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Professionals to enable them to supply Services. Professionals agree to provide Services in accordance with all applicable laws and regulations.
3.2 You shall not use ES24.COM to do any of the following:
(i) Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
(ii) Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
(iii) Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Users.
(iv) Use ES24.COM or any Service for any purpose or in any manner that is in violation of local, state, national, or international law.
(v) Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
(vi) Solicit employment or contract work which is not relevant to services offered through ES24.COM. You may not solicit, advertise for, or contact in any form Users, contracting, or any other purpose not related to Services facilitated through ES24.COM without express written permission from us.
(vii) Use ES24.COM to collect usernames and/or email addresses of members by electronic or other means without our express prior written consent.
(viii) Conduct or forward surveys, contests, pyramid schemes, or chain letters.
(ix) Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
(x) Download any file that you know, or reasonably should know, cannot be legally distributed through ES24.COM, or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
(xi) Restrict or inhibit any other User from using and enjoying ES24.COM.
(xii) Imply or state that any statements you make are endorsed by us, without our prior written consent.
(xiii) Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with ES24.COM, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index ES24.COM in any manner, or attempt to do any of the foregoing.
(xiv) Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
(xv) Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
(xvi) Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
(xvii) Use ES24.COM under different usernames or identities, after your account has been suspended or terminated.
(xviii) Mirror or archive any part of ES24.COM or any content or material contained on ES24.COM without Nexty’s written permission.
(xix) Alter transmission data without Nexty’s consent.
- No Employment
4.1 ES24.COM allows Potential Customers to connect with Professionals. Nexty is not the employer of any Professional. You acknowledge that we do not supervise, direct, or control a Professional’s work or Services performed in any manner. A Professional provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of Nexty for any purpose whatsoever.
- Intellectual Property Rights
ES24.COM, and the information, data, content and materials, which it contains (“emergencyplumbernj.com Contents”), are the property of Nexty and/or its affiliates and licensors, excluding User-generated content, which Nexty has a right to use as described below. ES24.COM Contents are protected from unauthorized copying and dissemination by copyright laws, trademark laws, international conventions, and other intellectual property laws. Nexty and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with ES24.COM Contents. Any use of ES24.COM Contents, other than as expressly permitted herein, is prohibited without the prior permission of Nexty and/or the relevant right holder. The service marks and trademarks of Nexty, including without limitation including all copyright, patents, trademarks, service marks, trade names, domain names, social media identifiers, designs and the Nexty logo are service marks owned by Nexty. Any other trademarks, service marks, logos and/or trade names appearing on ES24.COM are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on ES24.COM without the express prior written consent of the owner.
- Copyright Complaints and Copyright Agent
Nexty respects the intellectual property of others, and expects Users to do the same. Nexty will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the ES24.COM infringe upon that person’s or entity’s copyright or other intellectual property right (such person or entity, a “Complainant”) and sends to Nexty a properly submitted copyright notice as indicated below, Nexty will investigate, and if it determines, in its discretion, that the material is infringing, Nexty will remove the content and may terminate the access of the User who posted such content to ES24.COM in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant’s ownership of the work, should be included.
(ii) A statement specifically identifying the location of the infringing material, with enough detail that Nexty may find it on ES24.COM .
(iii) The complete name, address, telephone number and email address of Complainant.
(iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
(v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed;
(vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
Nexty’s contact information for notice of alleged copyright infringement is:
Or via Mail: NextY Ltd, 12 Bridewell Place, Third Floor East, EC4V 6AP, London, United Kingdom.
- Modifications to ES24.COM
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, ES24.COM or any content or information on ES24.COM with or without notice. We will not be liable to any party for any modification or discontinuance of ES24.COM.
The term “Confidential Information” shall mean any and all of Nexty’s trade secrets, confidential and proprietary information, personal information and all other information and data of Nexty that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The ES24.COM contains secured components that are accessible only to those who have been granted a username and password by Nexty. Information contained within the secure components of the ES24.COM is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Nexty and agree that you will not use Confidential Information other than as necessary for you to make use of ES24.COM as expressly permitted by this Agreement and only during the term of this Agreement. You will not disclose or transfer (or seek to induce others to disclose or transfer) any Confidential Information for any purpose. You shall promptly notify Nexty in writing of any circumstances, which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall implement reasonable technical, physical and administrative safeguards to protect Confidential Information from loss or theft, as well as unauthorized access, disclosure, copying, transfer, modification or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Nexty upon termination of this Agreement for any reason whatsoever.
- Disclaimer of Warranties and Limitation on Liability
9.1 USE OF THE ES24.COM IS ENTIRELY AT YOUR OWN RISK
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ES24.COM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER NEXTY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ES24.COM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH ES24.COM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL’S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ES24.COM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, ANY PRODUCTS, MERCHANDISE, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF ES24.COM OR THIS AGREEMENT. NEITHER NEXTY NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF ES24.COM (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY POTENTIUAL CUSTOMERS OR PROFESSIONALS). NEITHER NEXTY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ES24.COM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. NEXTY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
9.2 NO LIABILITY
YOU AGREE NOT TO HOLD NEXTY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, “MEMBERS”) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE ES24.COM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY NEXTY OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL NEXTY OR MEMBERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE ES24.COM OR ANY PROFESSIONAL SERVICES, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. UNDER NO CIRCUMSTANCES WILL NEXTY OR MEMBERS BE LIABLE FOR ANY DIRECT DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE ES24.COM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. NEXTY AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH ES24.COM, THE PROFESSIONAL SERVICES, THE MERCHANDISE OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT NEXTY OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO NEXTY DURING THE TWO (2) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
NEXTY AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ES24.COM. ES24.COM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT ES24.COM CONNECTS A USER TO A THIRD PARTY, NEXTY WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE NEXTY FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. BECAUSE NEXTY IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE NEXTY AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9.4 ADDITIONAL DISCLAIMER
THE QUALITY OF THE SERVICES OBTAINED THROUGH THE USE OF ES24.COM IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO ULTIMATELY PROVIDES SUCH SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING ES24.COM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES AND/OR MERCHANDISE THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE ES24.COM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE ES24.COM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
BY USING ES24.COM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE ES24.COM.
YOU ACCEPT THAT, AS A CORPORATION, NEXTY HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST NEXTY’S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE NEXTY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS NEXTY.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You hereby agree to indemnify, defend, and hold harmless Nexty, its licensors, and each such party’s directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys’ fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use ES24.COM and/or any Service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to Professionals), and (v) your Information and content that you submit or transmit through ES24.COM. Nexty reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Nexty.
- Mutual Arbitration Agreement
11.1 Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Nexty, including without limitation any dispute or claim related to or arising out of this Agreement (“Dispute”), you and Nexty may attempt to negotiate any Dispute informally (the “Informal Negotiations”) before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to Nexty. Nexty’s address for such notices is: NextY Ltd, 12 Bridewell Place, Third Floor East, EC4V 6AP, London, United Kingdom .
11.2 Arbitration. If a Dispute is not resolved through Informal Negotiations, you and Nexty agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration (“Arbitration Agreement”). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described in Section d below.
11.3 Excluded Disputes. You and Nexty agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual.
11.4 WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. You and Nexty agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
11.5 Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
11.6 Severability. You and Nexty agree that if any portion of this section entitled “Mutual Arbitration Agreement” is found illegal or unenforceable, that portion will be severed and the remainder of this section 11 will be given full force and effect.
- Governing Law and Jurisdiction
Except for the Arbitration Agreement in Section 11, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of New York, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, you agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of New York, New York.
This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
- General Provisions
14.1 All provisions that should by their nature survive the expiration or termination of this Agreement, shall so survive. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Nexty with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to Nexty. Nexty’s address for such notices is: NextY Ltd, 12 Bridewell Place, Third Floor East, EC4V 6AP, London, United Kingdom and/or by mail to email@example.com. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by Nexty, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Nexty shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond Nexty’s reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Professionals to perform, flood, fire, explosion, acts of terrorism or accident.
14.2 These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
- Changes to this Agreement
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, ES24.COM. Your continued use of ES24.COM following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
- Contact Information
If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org or by mail the below address:
NextY Ltd, 12 Bridewell Place, Third Floor East, EC4V 6AP, London, United Kingdom
Last updated: 21 November 2018