Last Updated: April 22, 2020
Neiighbor Terms of Service
Welcome, and thank you for your interest in Neiighbor, Inc. including its related, affiliated, or subsidiary companies (“neiighbor”, “we,” or “us”), our application for your mobile device (the “App”), our website at www.neiighbor.com (the “Site”), and any related websites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Service is displayed (together with the App and Site, our “Service”). These Terms of Service are a legally binding contract between you and Neiighbor regarding your use of the Service.
- Neiighbor is not liable for any disputes between users, or between users and third parties, arising from use of the App;
- the App is licensed, not sold to you, and that you may use the Service only as set forth in these Terms;
- your use of the Service may be subject to separate third party terms of service and fees, including, without limitation, the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind, and Neiighbor’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, AND BY ACCEPTING THESE TERMS, YOU AND NEIIGHBOR ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 20 below for the details regarding your agreement to arbitrate any disputes with Neiighbor;
- the App may require access to a variety of services on your mobile device, including contacts list internet and data services and such other features or services that we may describe in our documentation;
- access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates, device battery information, device wifi information, device cellular data connectivity, device accelerometer information, device gyroscope information, device healthkit data (heart rate, steps, sleep); and
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
- Eligibility You must be at least thirteen (13) years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are older than 13 but younger than 18 years of age (“Minor Child”), you must have parental consent before registering for an account on the Service and your parent must also accept these TOS on your behalf. If you, as a parent or legal guardian, have agreed to allow your Minor Child to use the Service, you agree that you and your minor child shall be responsible for: (i) the online conduct of such Minor Child; (ii) monitoring such Minor Child’s access to and use of the Service; and (iii) the consequences of any use of the Service by such Minor Child. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization. Neiighbor may, in its sole discretion, refuse to offer the Service to any person or entity, and may change its eligibility criteria at any time.
- Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address, telephone number, or other contact information. You represent and warrant that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
- Free Trial and Subscriptions. To access all features of Neiighbor it is required for users to subscribe monthly to the subscription service (“Neighbor Premium Plan”).
If you decide that you do not want to become a paying user of the Neiighbor Premium Plan, you must cancel your subscription to the Neiighbor Premium Plan by logging into your Neiighbor account, or by clicking here and following the cancellation instructions prior to the end of your 30-days Free Trial Period. Otherwise, at the end of your 30-days Free Trial Period, you will automatically become a paying user of the Neiighbor Premium Plan, and the credit card you provided will automatically be charged the current Neiighbor Premium Plan subscription fee each month, until you cancel your Neiighbor Premium Plan subscription.
You may only use this 30-days Free Trial Offer once. If you have subscribed to the Neiighbor Premium Plan or have taken a 30-days trial offer previously, you are ineligible for this Offer. The Neiighbor service may not be available on certain browsers. Neither prepaid cards can be used as a valid payment method for this offer.
Neiighbor reserves the right to earlier terminate this 30-days Free Trial Offer at any time and for any reason. After such time of termination, Neiighbor shall not be obligated to redeem any further Offers.
Paid Monthly and Annual Subscriptions. When you first set up your Product through the Services, or at any time after you begin using your Product, you may enjoy Neiighbor Pro by enrolling in our monthly or annual subscription plan, which will continue until you or we cancel your subscription. These subscription plans entitle you to access Neiighbor Pro for each payment period until such subscription is cancelled. Your paid subscription will automatically commence on the first day following the end of your trial period, and will automatically renew on a monthly or annual basis depending on your election when you first set up your Product. By submitting your payment details in conjunction with the trial, you agree to this charge. To avoid this charge, you must cancel your Neiighbor Premium Plan by either contacting us before the end of your trial period or discontinuing the Neiighbor Premium Plan via the Neiighbor iOS mobile app.
Subscription fees are billed or charged on the first day of the applicable subscription period. If any payment is not received, is returned unpaid or if any credit card or similar transaction is rejected or denied, Neiighbor reserves the right to cancel your Neiighbor Premium Plan subscription and to collect any rejection or insufficient funds fee and to process any such payment by the payment method you have submitted to us.
To the extent applicable, if you choose to pay by direct debit, you agree that we may take the charge as early as the first day of the applicable subscription period. If you enroll for a paid subscription on or after the expiry of your free trial, we may take charge on the same day as you enroll. We will confirm the mandate by email once you have enrolled and will give you advance notice of future charges after the initial charge.
Auto-Renewal for Paid Monthly and Annual Subscriptions. Unless you opt out of auto-renewal, which can be done through your account settings by removing your payment information or by contacting us, any paid Services (for example, your Neiighbor Premium Plan) you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. Your non-termination or continued use of a paid Service reaffirms that we are authorized to charge your payment method for that paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, or as otherwise described when you initially selected to use the paid Service.
- Cancellation, Refunds, Payments, and Payment Changes
- Cancellation of Subscription Services. You may cancel your paid monthly or annual Neiighbor Pro by contacting us or through your Neiighbor account, at any time, with or without cause. After your cancellation, you will continue to enjoy access to the Neiighbor Premium Plan until the last day of your subscription period. After such subscription period ends, your Neiighbor Premium Plan will no longer be accessible to you and Neiighbor Premium Plan features will be unavailable.
- Refunds. You may cancel your account at any time; however, there are no refunds for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else. Upon cancelling any Neiighbor Premium Plan, your subscription will be valid until your paid period is completed.
- Payments. Access to the Neiighbor Premium Plan, or to certain features of the Service, may require you to pay fees. Neiighbor accepts credit and debit cards issued through VISA, MasterCard, American Express, and Discover. Neiighbor also accepts in-app payments such as from third parties like Apple or Google. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Neiighbor may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time. Neiighbor or its payment processor will charge the payment method you specify at the time of purchase. You authorize Neiighbor or its payment processor to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, Neiighbor or its payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Payment Changes. Prices for Subscription Services may change from time to time, in Company’s sole discretion. If they do, and you currently have Subscription Features, Company will provide you with notice of the change through the Service or in email to you, at Company’s option, at least 30 days before the change is to take effect. Your continued use of the Subscription Features after price changes become effective constitutes your agreement to pay the changed amount. If you do not agree to the new prices, please follow the instructions in the “Closing Your Account” section below. You (and not Company) are responsible for any charges or fees payable to third parties in connection with the Service, such as ambulances and other emergency responders.
- Location Based Services. Some of the features of the Service may enable Neiighbor to tailor your experience based on your location (“Location-based Services”). In order to access certain Location-based Services, Neiighbor may require that you permit access to your localized position through your device, which Neiighbor may accomplish through a variety of means, including GPS location, GeoIP, or other available mechanisms. Without limiting the foregoing, even if you have not expressly granted Neiighbor access to location data, Neiighbor may nonetheless have access to location information contained in media content meta data, to the extent you have enabled the application originating such media content to capture and store location data. If you choose to disable Location-based Services on your device or to the App, you will not be able to utilize certain features of the Service. By authorizing Neiighbor to access your location or media files containing location based meta data, you agree and acknowledge that (i) location data we collect from you is directly relevant to your use of the Service and (ii) Neiighbor may, for so long as you allow Neiighbor to access such location data or meta data, provide Location-based Services related to your location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE AND NEIIGHBOR DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION BASED SERVICES.
- Stats Services. Some of the features of the Service may enable Neiighbor to tailor your experience based on your phone Apple Health app (“Stats Services”) such as: “Heart Rate,” “Number of Times Fallen,” “Sleep Analysis” and “Steps.” In order to access certain Stats Services, Neiighbor may require that you permit access to your Apple Health app through your device, which Neiighbor may accomplish through a variety of means, including Apple Health Kit or other available mechanisms. Without limiting the foregoing, even if you have not expressly granted Neiighbor access to Apple Health, Neiighbor may nonetheless have access to this Stats Services data contained in media content meta data, to the extent you have enabled the application originating such media content to capture and store Apple Health data. If you choose to disable Stats Services on your device or to the App, you will not be able to utilize certain features of the Service. By authorizing Neiighbor to access your Apple Health or media files containing Apple Health data based meta data, you agree and acknowledge that (i) Apple Health data we collect from you is directly relevant to your use of the Service and (ii) Neiighbor may, for so long as you allow Neiighbor to access such Apple Health data or meta data, provide Stats Services related to your Apple Health data. PLEASE NOTE THAT APPLE HEALTH DATA MAY NOT BE ACCURATE AND NEIIGHBOR DISCLAIMS ANY AND ALL WARRANTIES RELATED TO STATS SERVICES.
- App Terms. The terms of this Section 5 govern your acquisition and use of the App.
- Third Party Distributors. In order to download the App, you may be required by the third party who is distributing or providing you access to the App, such as Apple, Inc. (each, a “Distributor”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Neiighbor is not responsible for any act or omission of any Distributor.
- License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms, Neiighbor grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Neiighbor or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (2) permission to access and use the Service, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Neiighbor (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
- Access to the App; Third Party Fees. Neiighbor does not provide you with the equipment to use the App. You are responsible for all fees charged by third parties to access and use the App (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.
- Special Terms Regarding Apple. If you download software from Apple, Inc.’s App Store, your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service, and you acknowledge that these Terms are between you and Neiighbor only, and not with Apple. Apple is not responsible for the Service and the content thereof. These Terms are not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for “Licensed Applications” in, or that otherwise conflict with, the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary. You hereby 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.
- User Content
- User Content Generally. Certain features of the Service may permit users to make available content to the Service, including messages, reviews, photos, images, data, text, and other types of works (“User Content”), and to publish such User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service, subject to any license grants in these Terms.
- Limited License Grant to Neiighbor. By making available User Content on the Service, you grant Neiighbor a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Neiighbor’s use of your User Content will be without any compensation paid to you.
- Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting, publishing, or making available User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Neiighbor and other users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 6 and in the manner contemplated by Neiighbor, the Service, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Neiighbor or its users to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Neiighbor may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Neiighbor with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Neiighbor does not permit copyright-infringing activities on the Service.
- Feedback Grant. If you provide Neiighbor any feedback, comments, or suggestions regarding the Service, including, without limitation, information regarding how to improve the Service or any other Neiighbor products or services “Feedback”), you hereby assign to Neiighbor all right and title to such Feedback, without any additional compensation to You. You further acknowledge that, by accepting your Feedback, Neiighbor does not waive any rights to use similar or related ideas previously known to Neiighbor, or developed by its employees, or obtained from sources other than you.
- Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address: Neiighbor, Inc., 10523 Mars Lane, Los Angeles, CA, 90077, E-mail: Copyright@neiighbor.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner, or you are authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. Neiighbor will promptly terminate without notice the accounts of users that are determined by Neiighbor to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
- Guidelines and Prohibited Conduct. By using the Service, you agree not to:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- bully, intimidate, harass, or stalk any user or third party or post any User Content for the purpose of doing the same, impersonate any third part party, or disclose sensitive personal information of a third party or another user;
- interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service, including any informational announcements, charity requests, and petitions for signatures; (c) attempting to collect, personal information about another user or third party without proper consent; (d) taking any action (directly or indirectly) that imposes or may impose (as determined by Neiighbor in its sole discretion) an unreasonable or disproportionately large load on Neiighbor's or its third party providers' infrastructure; or (e) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity or claiming a false affiliation; misrepresenting the source, identity or content of information transmitted via the Service; accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms, or any right or ability to view, access, or use any Materials (defined below); or
- attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.
NEIIGHBOR RESERVES THE RIGHT TO DISABLE ANY USER'S ACCESS TO ANY PART OF THE SERVICE, INCLUDING THE PROFILES OF OTHER USERS, AND TO TERMINATE ANY USER'S ACCOUNT, FOR ANY REASON AND WITHOUT ANY NOTICE.
- Disputes between Users, or between Users and Third Parties. You agree that all disputes between you and any other user(s) of the Service, or between you and any third party, shall be resolved between you and such other user(s) or third parties directly. You are solely responsible for your interactions with other users of the Service, and with third parties during your use of the Service. By using the Service, you do not surrender any of the rights or causes of action you may have against any other user(s) of the Service; provided, however, that any disputes you have with Neiighbor are subject to Section 20 (Dispute Resolution and Arbitration). Neiighbor, including all Neiighbor employees, representatives, and agents, are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to, any communications, transactions, interactions, disputes or any relations whatsoever between users, or between users and third parties.
- Third-Party Services and Linked Websites. Neiighbor may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on the Service with an account on the third party service, such as Facebook. By using one of these tools, you agree that we may transfer that information to the applicable third party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Neiighbor may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify, update, or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. Should Neiighbor update the Service, you consent to automatic updating on your device, and agree that the terms and conditions of these Terms will apply to all such updates. Neiighbor will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 13 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change, such as a notification through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Ownership; Proprietary Rights. The Service is owned and operated by Neiighbor. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Neiighbor are protected by intellectual property and other laws. All Materials contained in the Service are the property of Neiighbor or our third party licensors. Except as expressly authorized by Neiighbor, you may not make use of the Materials. Neiighbor reserves all rights to the Materials not granted expressly in these Terms.
- Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Neiighbor and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Neiighbor Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE NEIIGHBOR ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE NEIIGHBOR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE NEIIGHBOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED WEBSITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE NEIIGHBOR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY NEIIGHBOR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE NEIIGHBOR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and Neiighbor agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Neiighbor in the most expedient and cost effective manner, you and Neiighbor agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NEIIGHBOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 20.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Neiighbor will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Neiighbor.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Neiighbor's address for Notice is: 10523 Mars Lane, Los Angeles CA, 90077. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Neiighbor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Neiighbor must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Neiighbor will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Neiighbor in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
- Fees. If you commence arbitration in accordance with these Terms, Neiighbor will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Neiighbor for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND NEIIGHBOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Neiighbor agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If Neiighbor makes any future change to this arbitration provision (other than a change to Neiighbor's address for Notice), you may reject the change by sending us written notice within thirty (30) days of the change to Neiighbor's address for Notice, in which case your account with Neiighbor will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.
- Enforceability. If Section 20.6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
- Open Source Software. The App may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses.
- Contact Information. The Service is offered by Neiighbor Networks, Inc., located at 10523 Mars Lane, Los Angeles CA, 90077. You may contact us by sending correspondence to that address or by emailing us at email@example.com
- Notice to California Residents. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address in Section 23 with your electronic mail address and a request for a copy of these Terms. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.