NANO GLOBAL CORP.
END USER LICENSE AGREEMENT
(Last Updated August 15, 2019)
This End User License Agreement (“Agreement”) is a legally binding agreement between you (referred to in this Agreement as “End User”, “you” or “your”) and Nano Global Corp., a Delaware corporation (referred to in this Agreement as “Nano”, “we”, “us” or “our”).
This Agreement governs your download, installation, access and use of Nano’s mobile application (“Application”) and the Nano website located at www.mynano.com, including all Nano web pages accessible globally on or through this website (“Nano Website”). The Application and the Nano Website, including all Nano Website Content (defined in Section 7. below) and related services, software, systems and documentation, are hereafter collectively referred to in this Agreement as the “Nano Service”.
BY CLICKING THE “LOGIN” BUTTON DURING THE REGISTRATION PROCESS FOR YOUR ACCOUNT, AND/OR BY DOWNLOADING AND INSTALLING THE APPLICATION OR ACCESSING THE NANO WEBSITE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, (B) ACCEPT, AND AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (C) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND, IN ANY EVENT, ARE OF A LEGAL AGE AND CAPACITY TO FORM A BINDING CONTRACT WITH NANO.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD AND INSTALL THE APPLICATION OR ACCESS THE NANO WEBSITE, AND IF YOU ALREADY DOWNLOADED OR INSTALLED THE APPLICATION, DELETE THE APPLICATION FROM YOUR MOBILE DEVICE.
Nano may modify the terms and conditions of this Agreement at any time by updating this posting and the date specified at the beginning of this Agreement. You are bound by any such modifications and should therefore revisit this page periodically to review the terms and conditions of this Agreement. To the maximum extent permitted by applicable law, you agree that your continued use of the Nano Service (or any portion thereof) after any modification signifies your agreement to such modification.
- License Restrictions. You shall not: (i) share your Login Credentials (defined in Section 4 below) with any other person; (ii) use the Nano Service for any purpose other than your personal use; (iii) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (iv) transfer, sublicense, redistribute, sell, lease, lend, assign, publish or otherwise make available the Application or Nano Website Content, or any portion thereof, or any features or functionality of the Application or Nano Website Content, to any third party for any reason, and if you transfer or sell your Mobile Device to a third party, you must uninstall and remove the Application from the Mobile Device before doing so; (v) copy (unless expressly permitted by this Agreement), store, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application or Nano Website Content; (vi) “mirror” on any other server the Application or Nano Website Content, or otherwise compile or collect any of the Application or Nano Website Content as part of a database or other work; (vii) use any automated tool or program (e.g., robots, spiders, algorithms, etc.) to use the Application or Nano Website, or store, copy, modify, distribute, or resell any Application or Nano Website Content; (viii) post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper functioning of the Nano Service; (ix) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (x) remove, delete, alter or obscure any trademarks or notices of any copyright, trademark, patent or other intellectual property from the Application or Nano Website Content (including any copy thereof); or (xi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security or technological features in or protecting the Application or Nano Website.
- Reservation of Rights. You hereby acknowledge and agree that (i) the Nano Service is licensed, not sold, to you and (ii) you do not acquire any ownership interest in the Nano Service (or any portion thereof), or in any Intellectual Property Rights (defined below) in the Nano Service (or any portion thereof), other than to use the Nano Service in accordance with the limited license granted under, and subject to the terms and conditions of, this Agreement. The Application, Nano Website and all of the Nano Website Content belong to Nano and our content providers and are protected by copyrights, trademarks, patents, trade secrets, and other intellectual property rights therein or relating thereto (collectively, the “Intellectual Property Rights”). Nano and its licensors hereby reserve and retain their entire right, title and interest in and to the Nano Service (and all portions thereof), including all Intellectual Property Rights, except for the limited license expressly granted to you under this Agreement. The Nano products and services names mentioned in the Nano Service are either registered trademarks or trademarks of Nano. Other trademarks and service marks mentioned in the Nano Service belong to their respective owners. Any trademarks, logos, service marks, and other marks and indicators of source of origin that are displayed on the Application or Nano Website, or contained in the Nano Website Content (collectively, the “Marks”) are the proprietary property of Nano or our respective licensors. Nothing contained on the Application or Nano Website, or in the Nano Website Content, should be construed as a license or right to use any Marks displayed on the Application or Nano Website or contained in the Nano Website Content. You may not use, copy, modify, or display any of the Marks appearing on the Application or Nano Website, or in the Nano Website Content, without Nano’s express written permission or the express written permission of the owner of the applicable Mark(s). Any unauthorized use of the Application or Nano Website, or any Nano Website Content, may violate Intellectual Property Rights or applicable laws, and any such unauthorized use may result in your personal liability and subject you to civil and/or criminal prosecution. Finally, Nano also reserves the right to modify or discontinue, temporarily or permanently, all or any part of the Nano Service without notice.
- Registration of Account. In order to use the Nano Service, you must register with Nano and create an account (“Your Account”). Our registration process (which may change from time to time) currently requires you to provide certain signup information, including your name and email address and to select a username and password (collectively, your “Login Credentials”). We reserve the right to change the Login Credentials, and to require you to provide additional and/or different information in order to use the Nano Service or certain features or portions of the Nano Service. In order for the Nano Services to function effectively, you must keep your Login Credentials and the information in Your Account up to date and accurate. You shall not create more than one account to access and use the Nano Service.
- Protection of Password and Login Credentials. You acknowledge and agree that you are responsible for (i) keeping your password and other Login Credentials confidential, and (ii) any and all activity that occurs through Your Account, whether or not authorized by you. You shall not share your Login Credentials with any other person. You hereby agree to immediately notify us of any security breach associated with your Login Credentials or Your Account (e.g., if your password is stolen, if Your Account is hacked, etc.) and of any unauthorized use of Your Account. We shall not be liable for, and hereby disclaim, any losses or damages (whether to you or others) caused by or resulting from any unauthorized use of Your Account.
- Third Party Materials. The Nano Service may display, include, make available, or provide access to third party content, including data, information, applications, videos, advertising, and other products, services and/or materials, or provide links to third party websites or services (collectively, the “Third Party Materials”). You hereby acknowledge that Nano is not responsible for any Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Nano does not control any Third Party Materials and does not assume any responsibility, and shall not have any liability to you or any other person or entity, for any Third Party Materials. Nano does not endorse any Third Party Materials, and the inclusion of a link in the Nano Service does not imply any endorsement by Nano of the Third Party Materials. Third Party Materials and links thereto contained in the Nano Service are provided solely for general informational purposes and as a convenience to you, and you access and use the Third Party Materials entirely at your own risk and subject to the third party’s terms and conditions governing such Third Party Materials. You shall not use the Third Party Materials in any manner that is inconsistent with the terms and conditions of this Agreement or that infringes the intellectual property rights of any third party. Third Party Materials may not be available in all languages or in your home country and may not be appropriate or available for use in any particular location. To the extent that you choose to access and use the Third Party Materials, you are solely responsible for compliance with any applicable laws. Nano reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any Third Party Materials at any time without notice or liability to you.
- Submissions to the Application and Nano Website. You and other third parties may be able to post reviews, comments, opinions, ideas, advice, concepts, statements, materials, information and other content to portions of the Application and Nano Website (each, a “Submission”). Each Submission posted to the Application and/or Nano Website must be topical. Any Submission that constitutes part of the content expressed or made available by third parties on the Application and/or Nano Website are those of the respective authors or producers and not of Nano, or Nano’s officers, directors, employees or shareholders. We may, at any time and without notice, review and delete, block, interrupt, or otherwise remove, disable or restrict access to, or refuse to display or transmit any Submission or other content, in whole or in part, posted by you or any third party that in our sole judgment violates this Agreement or which might be offensive, illegal, inappropriate, or that might violate the rights of or result in harm to any other third party. While we reserve the right to monitor the content that you and other third parties post to the Application and/or Nano Website, we are under no responsibility to do so and are not responsible for any Submission or other content that you and other third parties post. We do not control the content posted by third parties via the Application and/or Nano Website; and accordingly, we do not guarantee the accuracy, integrity, or quality of such content. You understand that by using the Application and/or Nano Website, you may potentially be exposed to content that is offensive, indecent, inappropriate, or objectionable. The posting of third party content to the Application and/or Nano Website should not be considered an endorsement or approval of such third party content. Under no circumstances will Nano, or Nano’s officers, directors, employees or shareholders be held liable for any loss or damages caused by your reliance on information obtained through the Application and/or Nano Website. You hereby agree that any Submission that you may post or send to us will be considered non-confidential and non-proprietary. You further hereby agree that Nano is free to use any Submission from you for any purpose whatsoever without compensation, acknowledgment, or payment to you of any kind. You also hereby agree that as to each Submission by you, that you grant Nano a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, transferable, sublicensable, worldwide license and right to display, use, record, practice, transmit, communicate, incorporate, perform, copy, modify, adapt, store, host, publish, distribute, and create derivative works of the Submission in any and all media or distribution methods, software, or technology of any kind now existing or developed in the future. By posting or otherwise providing a Submission, you represent and warrant that public posting and use of your Submission by Nano will not infringe on or violate the rights of any third party.
Use Policies. We ask that you respect our Application and Nano Website and our online community and participants. Your conduct should be guided by common sense, decency, respect and basic etiquette. To further these common goals, when posting each Submission to or otherwise using the Application and Nano Website, you agree NOT to:
- Use the Application and Nano Website in a manner which violates any applicable laws or regulations, or which violates this Agreement;
- Post or transmit any information or material: (i) that you do not have the right to post or transmit under applicable laws, including without limitation copyright, trademark, trade secret, privacy or securities laws; or (ii) in violation of your obligations to any third party, including without limitation your obligations under nondisclosure agreements;
- Post or transmit any information or material that is unrelated to the subject matter of the Application or Nano Website;
- Sell or otherwise transfer your profile or other information in Your Account on the Application or Nano Website;
- Intentionally seek information on, obtain copies of, or modify files, other data, or passwords belonging to other users of the Application or Nano Website without permission; solicit a user’s password or other account information; or harvest user names, email addresses, or other personal information for any purpose;
- Engage in or facilitate the transmission of unsolicited mass mailing, or “spamming”;
- Post or promote information that you know to be false or misleading, or that promotes or facilitates illegal conduct or activities;
- Impersonate any person, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Use or post any defamatory, libelous, abusive, harassing, or threatening language or content, or stalk, threaten, harass, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
- Use racially, ethnically, or otherwise offensive or inappropriate language; or post racially, ethnically, or otherwise offensive or inappropriate subject matter;
- Use profanity or other explicit/obscene language;
- Solicit/post nudity, pornographic material, or other sexually explicit images (actual or simulated);
- Post any Submission that is inflammatory, or discusses, threatens or incites violence or illegal activity;
- Post any photographs of another person without such person’s prior written consent.
Nano hereby reserves the right to investigate and take legal and other appropriate action against you and anyone else who, in our sole judgment and discretion, violates the restrictions set forth herein, including without limitation removing any offending Submission, terminating Your Account and your access to the Application and Nano Website, and pursuing any other available remedies under applicable law.
- Updates and Interruptions to the Nano Service; Limited Remedy. Nano may from time to time in its sole discretion develop and provide updates to the Nano Service, which may include upgrades, bug fixes, patches, other error corrections, and/or new features, including related documentation (collectively, “Updates”). Updates may also modify or delete certain features and functionality of the Nano Service. You acknowledge that Nano has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Nano Service. You shall promptly download and install all Updates and hereby acknowledge that the Nano Service, or portions thereof, may not properly operate should you fail to do so. You hereby further agree that all Updates will be deemed part of the Nano Service and be subject to all of the terms and conditions of this Agreement. You also acknowledge that your access and use of the Nano Service may be interrupted from time to time for any of several reasons including, without limitation, the installation of periodic Updates, malfunction of equipment, maintenance or repair of the Nano Service, or other actions that Nano, in its sole discretion, may elect to take. In no event will Nano be liable to you or any other party for any loss, cost or damages that results from any scheduled or unscheduled downtime of the Nano Service. Your sole and exclusive remedy for any failure or non-performance of the Nano Service (or any portion thereof), including any associated software or other materials supplied in connection with such Nano Service, shall be for Nano to use commercially reasonable efforts to effectuate a repair, workaround or other adjustment or correction to the Nano Service (or applicable portion thereof).
- NO MEDICAL ADVICE. NANO IS NOT A HEALTHCARE PROVIDER AND DOES NOT OFFER MEDICAL ADVICE. THE INFORMATION AND CONTENT OFFERED THROUGH THE NANO SERVICE ARE PROVIDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE, AND SHOULD NOT BE CONSTRUED AS, MEDICAL ADVICE. EACH PERSON IS UNIQUE, AND THE INFORMATION AND CONTENT PROVIDED THROUGH THE NANO SERVICE MAY NOT BE APPLICABLE TO YOU OR APPROPRIATE FOR YOUR SITUATION. THE NANO SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. THE INFORMATION AND CONTENT IN THE NANO SERVICE SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. NANO HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY AND ALL ACTS AND OMISSIONS TAKEN OR MADE BY YOU IN RELIANCE UPON ANY OF THE INFORMATION OR CONTENT PROVIDED IN THE NANO SERVICE.
- DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NANO SERVICE, THE INFORMATION AND CONTENT CONTAINED IN THE NANO SERVICE, AND ANY SERVICES PERFORMED OR PROVIDED BY THE NANO SERVICE ARE PROVIDED TO END USER “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NANO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, OF TITLE, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, NANO PROVIDES NO REPRESENTATION OR WARRANTY THAT THE NANO SERVICE (A) IS COMPLETE OR UP-TO-DATE, (B) WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS, (C) WILL MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, (D) WILL OPERATE WITHOUT INTERRUPTION, (E) WILL BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, (F) IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION, OR (G) WILL BE COMPATIBLE OR WORK WITH ANY OTHER MOBILE OR WEB-BASED APPLICATIONS, SOFTWARE, SYSTEMS OR SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NANO, OR ITS EMPLOYEES, REPRESENTATIVES OR AGENTS SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL NANO (OR NANO’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, LICENSORS, AGENTS, SUCCESSORS OR ASSIGNS) BE LIABLE FOR ANY PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF USE, SERVICE INTERRUPTIONS, OR LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL LOSSES OR DAMAGES (EVEN IF NANO HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF, RESULTING FROM OR RELATED TO YOUR USE, OR INABILITY TO USE, THE NANO SERVICE, AND (II) UNDER NO CIRCUMSTANCES SHALL THE TOTAL LIABILITY OF NANO (AND NANO’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, LICENSORS, AGENTS, SUCCESSORS OR ASSIGNS) FOR DAMAGES ARISING OUT OF, RESULTING FROM OR RELATED TO YOUR USE, OR INABILITY TO USE, THE NANO SERVICE, HOWEVER CAUSED AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, EXCEED FIFTY U.S. DOLLARS ($50.00). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Because some jurisdictions do not allow the exclusion or limitation of liability for certain personal injury, consequential or incidental damages, the above limitation may not apply to you.
- Assumption of Risk. You hereby expressly acknowledge and agree that use of the Nano Service is at your sole risk. The Nano Service, and the information and content contained in the Nano Service, does not constitute medical advice. By granting you the limited right to use the Nano Service, Nano does not assume any obligation or liability with respect to your health. To the maximum extent permitted by applicable law, in no event shall Nano be liable for any death or bodily injury that you suffer, or that you cause to any third party, (i) in connection with, or as a result of, your use of the Nano Service (or any portion thereof), or (ii) any activity that you undertake in connection with, or as a result of, your use of the Nano Service (or any portion thereof).
- Indemnification. You hereby agree to indemnify, hold harmless and defend Nano, and Nano’s officers, directors, employees, shareholders, affiliates, agents, successors and assigns from and against any and all claims, liability, damages of every kind, losses, actions, judgments, awards, penalties, fines, costs and expenses (including attorneys’ fees) arising out of, resulting from or related to (i) your use or misuse of the Nano Service (or any portion thereof), (ii) your violation of any of the terms and conditions of this Agreement, (iii) your violation of, or failure to comply with, any applicable laws or regulations, (iv) any negligent acts or omissions, or willful misconduct by you, or (v) your violation of any rights of a third party through use or misuse of the Nano Service (or any portion thereof).
- Your Compliance with Local and Other Applicable Laws. Nano makes no representation or warranty that the Nano Service (or any portion thereof) is appropriate or available for use in all locations. Access to the Nano Service may not be legal by certain persons or in certain countries; and access to the Nano Service from countries or territories where such access or its contents are illegal is prohibited. If you choose to access and use the Nano Service from outside of the United States, you hereby agree that you do so on your own initiative and at your own risk. You are responsible for compliance with any and all applicable laws and regulations, including but not limited to all local laws, pertaining to your access and use of the Nano Service.
- Export Restrictions. You may not use or otherwise export or re-export the Nano Service (or any portion thereof) except as authorized by United States law and the laws of the jurisdiction in which the Nano Service was obtained. In particular, but without limitation, the Nano Service (or any portion thereof) may not be exported or re-exported (i) into any U.S.-embargoed countries (or to any national or resident thereof), or (ii) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Nano Service, you represent and warrant that you are not located in any such country or on any such list. You also hereby agree that you will not use the Nano Service (or any portion thereof) for any purposes prohibited by United States law.
- S. Government End Users. The Nano Service is a “Commercial Item”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Nano Service is being licensed to U.S. Government end users (a) only as a Commercial Item, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
- Term and Termination. The term of this Agreement commences when you download and install the Application or access any portion of the Nano Service, whichever shall first occur, and will continue in effect until terminated by you or Nano as set forth in this section. Termination will not limit any of Nano’s rights or remedies at law or in equity under applicable law. You hereby agree that Nano will not be liable to you or any third party for any termination of your access to the Application or other portion of the Nano Service.
- You may terminate this Agreement at any time by deleting or uninstalling the Application and all copies thereof from your Mobile Device and requesting that Your Account be deactivated.
- Nano may terminate this Agreement at any time in our sole discretion. In addition, this Agreement and the license granted to you under this Agreement will terminate immediately and automatically without any notice if you violate or fail to comply with any of the terms and conditions of this Agreement.
Upon any termination of this Agreement:
- All rights granted to you under this Agreement, including but not limited to the license granted to you under this Agreement, will also immediately terminate;
- You must immediately cease all use of the Nano Service and delete and uninstall all copies of the Application from your Mobile Device;
- Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, excluding its conflict of laws rules or principles to the extent that such rules or principles would apply the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to, and is hereby expressly excluded in its entirety from, this Agreement.
- Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, enforcement, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules (“JAMS Rules”). The Tribunal will consist of one arbitrator, selected in accordance with the JAMS Rules. The place of arbitration will be in Dallas, Texas if you reside in the United States, and in Singapore if you reside outside of the United States. The language to be used in the arbitral proceedings will be the English language. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. Nano and End User shall each be responsible for their own attorneys’ fees. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential and maintained and treated as confidential by you and Nano, unless otherwise required by applicable law. This section shall not be interpreted to prevent Nano from submitting to a court of competent jurisdiction any information necessary to enforce the terms and conditions of this Agreement, or to seek injunctive or equitable relief for the protection of Nano’s Intellectual Property Rights and confidential information.
- WAIVER OF JURY TRIAL. YOU AND NANO IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU OR NANO MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (A) THIS AGREEMENT, (B) THE NANO SERVICE (OR ANY PORTION THEREOF), OR (C) THE PERFORMANCE OR NON-PERFORMANCE BY YOU OR NANO OF ANY OBLIGATIONS UNDER THIS AGREEMENT. YOU HEREBY CERTIFY AND ACKNOWLEDGE THAT: (1) NANO HAS NOT REPRESENTED, EXPRESSLY OR OTHERWISE, THAT NANO WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) YOU HAVE CAREFULLY CONSIDERED THE IMPLICATIONS OF THIS WAIVER; AND (3) YOU ARE MAKING THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND OF YOUR OWN FREE WILL.
- CLASS ACTION WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NANO HEREBY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR NANO’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Further, you hereby acknowledge and agree that no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. This Class Action Waiver section shall survive any termination of this Agreement.
- LIMITATION OF TIME TO FILE CLAIMS. YOU HEREBY AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NANO SERVICE (OR ANY PORTION THEREOF) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THAT THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED.
- Assignment. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, without Nano’s prior written consent. Nano may assign this Agreement at any time without notice or consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of you and Nano, their successors and permitted assigns.
- No Waiver. The delay or failure of Nano to enforce any right or provision in this Agreement, or to exercise any remedy in this Agreement, shall in no way constitute (or be construed or interpreted as) a waiver by Nano of such right, provision or remedy. No waiver shall be effective unless it is made in writing and is signed by an authorized representative of Nano. Nano hereby reserves all of its rights and remedies which are or may be available to Nano under applicable law.
- Severability. In the event that any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the remaining provisions of this Agreement shall not be affected and shall remain in full force and effect, and such invalid, illegal, or unenforceable provision shall be modified to the extent possible in such a manner as to be valid, legal, and enforceable and in a way that best carries out the intent of Nano.
- Survival. All provisions of this Agreement that by their nature extend beyond the termination of this Agreement (including, but not limited to, provisions pertaining to disclaimers, waivers, limitations of liability, reservation of rights, Intellectual Property Rights, assumption of risk, indemnification, compliance with laws, enforcement of rights and remedies, governing law and dispute resolution), and the definitions herein as applicable to the interpretation of the foregoing provisions, shall survive any termination of this Agreement.