Terms
Terms of Use
Updated and Effective as of March 12, 2024
Welcome to the Internet site, applications and services provided by NowMedia Network (collectively, the “Services”). These Terms of Use govern your access and use of the Services provided by the NowMedia Network. Please read these Terms carefully before accessing or using the Services.
By joining, or each time you access and use the Services, you signify that you have read and understand, and agree to be bound by, these Terms. You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you do not agree to these terms, you are not permitted to use the Services. These Terms have the same force and effect as an agreement in writing.
If you wish to contact us in writing, have a complaint or are required to give us notice in writing, you can send this to us here or by post to NowMedia Network.,294 Washington St., Suite 500 Boston, MA 02108. If we have to contact you or give you notice in writing, we will do so by email or post to any (email) address you provide to us.
Important Notices:
The key terms you should consider are the limitations on liability contained in the sections titled Disclaimer of Warranties and Limitations of Liability, and a class action waiver and resolution of disputes by arbitration in the section titled Arbitration Agreement.
Your access to and use of the Services is also governed by our Privacy Notice located at Privacy Notice; and Cookie Policy located at Cookie Policy.
We recommend that you print a copy of these Terms and the Privacy Notice for your future reference.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Your Responsibilities
You are responsible for obtaining and maintaining at your own cost all equipment and services needed for access to and use of the Services. When you register with us and each time you access the Services, you may be providing certain information about yourself. You agree that we may use any information that we obtain about you in accordance with the provisions of our Privacy Notice and that you have no ownership or proprietary interest in your account other than as set out in these Terms. If you elect to register with us, you agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. If any information you provide is or becomes untrue, inaccurate, or incomplete, we have the right to terminate your access to and use of your account and the Services. In addition, you agree not to use the Services to: (a) violate any local, state, national, or international law or regulation; (b) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (d) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) stalk, harass, or harm another individual, including revealing the real name of any fellow user that has chosen to use an alias on the Services; (f) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (g) use any “robot,” “spider,” “rover,” “scraper” or any other data-mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute any data from the Services, our network or databases; (h) use any features of the Services for anything other than their intended purpose; (i) interfere with or disrupt the Services or servers or our networks, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services; or (j) assist, permit or encourage any person to perform any of the activities described above.
Participation on the Site
You must be thirteen (13) years of age or older to participate in any activities or services offered on our Site. You must meet the designated minimum age requirements (for example, twenty-one (21) years of age or older) for participation in certain contests, sweepstakes and/or special events.
We will establish specific rules and terms for participation in each contest, sweepstakes and/or special event and will post this information on our Site. We will not knowingly collect personal information from visitors under sixteen (16) years of age for these activities. Upon discovery of the participation of a person under sixteen (16) years of age in such activities, his/her registration or participation will be canceled immediately and all personal information will be deleted from our files.
Copyright Infringement and Trademark Rights
Material on our Sites may include inaccuracies or typographical errors. We have the right to make changes and update any information contained on our Sites without prior notice.
Modifications To Terms
We may, in our sole and absolute discretion, change these Terms from time to time. If you object to any such changes, your sole recourse shall be to stop using the Services.
Modifications To the Services
We reserve the right to modify, suspend or discontinue all or any aspect of the Services with or without notice to you. Without limitation to the preceding sentence, we may periodically schedule system downtime for maintenance and other purposes. You also acknowledge that unplanned system outages may occur. The Internet site is provided over the Internet and so the quality and availability of the site may be affected by factors outside our reasonable control. Accordingly, we cannot accept any responsibility for any connectivity issues that you may experience when using the Sites or for any loss of material, data, transactions or other information caused by system outages, whether planned or unplanned. You agree that we shall not be liable to you or any third party should NowMedia Network, Inc. exercise its right to modify, suspend or discontinue the Services.
Fees
We reserve the right at any time to charge fees for access to the Services or to any specific new feature or content that we may introduce from time to time. In no event will you be charged for access to any Services unless we obtain your prior agreement to pay such fees. If you do not consent to the payment of such fees, however, you may not have access to paid content or services. Details regarding the content or services you will receive in exchange for fees, as well as the payment terms and conditions that apply, will be disclosed to you prior to your agreement to pay such fees. You agree to pay such fees if you sign up for any fee-based service. Any such terms and conditions shall be deemed to be a part of (and are hereby incorporated by reference into) these Terms.
Email is an important communication method for our online visitors. The person in whose name the email account is registered should generate all email sent to us. Email users shall not mask their identity by using a false name or another person’s name or account. We will use your email address and the content of any email for correspondence and visitor response purposes. Any non-personal information you provide to us by email, including, but not limited to, feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, shall be deemed to be non-confidential, and we assume no obligation to protect such non-personal information contained in the email from disclosure.
The submission of non-personal information to us shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas or the like by the Site, their parents, affiliates, subsidiaries or operational providers for any purpose, and the Site, their parents, affiliates, subsidiaries and operational providers shall be free to reproduce, use, disclose and distribute such information to others without liability or restriction. Any personal information transmitted with an email, such as the sender’s name, email or home addresses, will be protected in accordance with the policies set forth in our Privacy Notice.
Mobile
The Sites may offer mobile SMS/text message and mobile alerts updates as a text messaging/mobile email service. Please read these terms and conditions prior to using the service. By using the service, you agree to be legally bound by this Agreement and our Privacy Notice. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT USE THE SERVICE. Please note that to process your requests for this service, you may be charged a fee to send and receive messages based on the terms of your wireless service. Check your wireless service provider if you have questions about your service plan.
By signing up for the Services and providing us with your wireless number, you confirm that you want us to send you information regarding your account or transactions with us and that we think may be of interest to you, which may include using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from us, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from us.
Links
We may provide links to other websites or Internet resources for your convenience only, and such links do not signify or imply our endorsement of such other website or resource or its contents over which we have no control and which we do not monitor. You use those links at your own risk and should apply a reasonable level of caution and discretion in doing so. You agree that we shall have no responsibility or liability for any information, software, or materials found at any other web site or internet resource.
We may also integrate with third parties who will interact with you under their terms of service. One such third party is YouTube and by using the Sites or Services, you agree to be bound by the YouTube Terms of Service located here.
The Services may also contain links to third-party products or services that are monetized using affiliate marketing partners or programs (“Affiliate Links”). If you purchase a product or service through an Affiliate Link, we may receive revenue from that purchase.
Applications
We may offer software applications to help you gain access to our Services. In such circumstances, we grant you a personal, non-exclusive, non-transferable, limited license to install such software applications solely on the devices you will use to access the Services. You agree that we may provide you from time to time with automatic upgrades of these applications, which you will accept for installation. Please note that certain retail application stores that offer our applications may have separate sales terms that will be binding on you if you elect to download our applications from such merchants.
Restrictions and Commercial Use
Other than as set provided for in these Terms: you may not copy, make derivate works, resell, distribute, or make any commercial use of (other than to keep and share information for your own non-commercial purposes) any content, materials, or databases from our network or systems. You undertake not to use the Services for any purpose that is fraudulent or unlawful, not to interfere with the operation of the Services. Your use of the Services must comply with our policies.
Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE NowMedia Network, INC. NETWORK (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT). NowMedia Network, INC. MAKES NO WARRANTY THAT THE NowMedia Network, INC. NETWORK WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ACCESS TO DATA (INCLUDING, BUT NOT LIMITED TO, DOCUMENTS, PHOTOGRAPHS, AND SOFTWARE FILES) STORED BY YOU OR OTHERS ON THE SERVICES IS NOT GUARANTEED AND THAT WE SHALL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF DATA CAUSED BY THE SERVICES OR THEIR UNAVAILABILITY. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NowMedia Network, INC. OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE SERVICES AND INFORMATION ON THE SITES IS PROVIDED “AS IS.” THE SITES DO NOT WARRANT, EITHER EXPRESSLY OR BY IMPLICATION, THE ACCURACY OF ANY MATERIALS OR INFORMATION PROVIDED ON THE SITES OR THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ALTHOUGH THE INFORMATION PROVIDED TO VISITORS ON THE SITES IS OBTAINED OR COMPILED FROM SOURCES WE BELIEVE TO BE RELIABLE, THE SITES CANNOT AND DO NOT GUARANTEE THE ACCURACY, VALIDITY, TIMELINESS OR COMPLETENESS OF ANY INFORMATION OR DATA MADE AVAILABLE TO VISITORS OR ITS SUITABILITY FOR ANY PARTICULAR PURPOSE. NEITHER THE SITES, NOR ANY OF THEIR PARENTS, PARTNERS, AFFILIATES, SUBSIDIARIES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OPERATIONAL OR PROMOTIONAL PROVIDERS, PROGRAM PRODUCERS OR SPONSORS ARE LIABLE OR SHALL HAVE RESPONSIBILITY OF ANY KIND TO ANY VISITOR FOR ANY LOSS OR DAMAGE THAT YOU INCUR IN THE EVENT OF: (I) ANY FAILURE OR INTERRUPTION OF THIS SITE; (II) ANY ACT OR OMISSION OF ANY THIRD PARTY INVOLVED IN MAKING THE SITES OR THE DATA CONTAINED HEREIN AVAILABLE TO YOU; (III) ANY OTHER CAUSE RELATING TO YOUR ACCESS OR USE, OR INABILITY TO ACCESS OR USE, ANY PORTION OF THE SITES OR MATERIALS ON THE SITES; (IV) YOUR INTERACTION OR SUBMISSIONS ON THE SITES, INCLUDING, BUT NOT LIMITED TO, RESUMÉ OR EMPLOYMENT SUBMISSIONS OR DIALOGUE BETWEEN HOSTS; OR (V) FROM YOUR FAILURE TO COMPLY WITH THIS AGREEMENT, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF THE SITES OR OF ANY VENDOR PROVIDING SOFTWARE, SERVICES OR SUPPORT. IN NO EVENT WILL THE SITES, THEIR PARENTS, PARTNERS, AFFILIATES, SUBSIDIARIES, MEMBERS, OFFICERS OR EMPLOYEES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY OTHER LOSS OR DAMAGES OF ANY KIND EVEN IF THE SITES, THEIR AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. PLEASE BE ADVISED THAT ONCE YOU LEAVE THE SITES, YOUR USE OF THE INTERNET WILL BE GOVERNED BY THE TERMS OF USE AGREEMENTS AND PRIVACY POLICIES, IF ANY, OF THE PARTICULAR SITE THAT YOU ARE ACCESSING, INCLUDING THOSE OF OUR OPERATIONAL PROVIDERS, ADVERTISERS, SPONSORS AND PROMOTIONAL PARTNERS. THE SITES, THEIR PARENTS, PARTNERS, AFFILIATES, SUBSIDIARIES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE CONTENT, ACTIVITIES OR PRIVACY PRACTICES OF THE OTHER SITES, OR ANY LOSS OR DAMAGE THAT COULD RESULT FROM LEAVING THE SITE.
YOU REPRESENT AND WARRANT TO US THAT EXECUTION, DELIVERY AND PERFORMANCE OF ANY ASPECT(S) OF THESE TERMS WILL NOT VIOLATE ANY LAW, ORDINANCE, CHARTER, BY-LAW OR RULE APPLICABLE TO YOU, OR ANY OTHER AGREEMENT BY WHICH YOU ARE BOUND OR BY WHICH ANY OF YOUR OR THEIR ASSETS ARE AFFECTED.
Limitations of Liability
Nothing in these Terms shall limit or exclude our liability for: (i) death or personal injury resulting from our negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited under English law. We are responsible for loss or damage you suffer that is a foreseeable result of our breaching these Terms or our failing to use reasonable care and skill. However, you understand that to the extent permitted under applicable law, in no event will we or our officers, employees, directors, shareholders, parents, subsidiaries, affiliates, agents, subcontractors or licensors be liable under any theory of liability (whether in contract, tort, statutory, or otherwise) for any unforeseeable, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, business, business interruption, business opportunity goodwill, use, data or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages), resulting from your (or anyone using your account’s) use of the Services. We will not be liable for damages which you could have avoided by following our advice, including to apply an update, patch or error correction offered to you free of charge or to have in place the minimum system requirements advised by us. We will not be liable or responsible for any failure to perform, or any delay in the performance of, any of our obligations under these Terms that is caused by any event or circumstances beyond our reasonable control, including any failure of public or private telecommunications networks or any delays or latency due to your physical location or your wireless data service provider’s network. Unless otherwise provided by applicable law, in no event shall our liability to you exceed the amount of fees you paid us (if applicable) for a period of three months prior to the date you submit a claim.
Exclusions and Limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
Indemnification
You agree to indemnify, defend, and hold harmless us, our parents, subsidiaries, affiliates, officers, directors, employees, consultants, subcontractors and agents from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorney fees) that such parties may incur as a result of or arising from your (or anyone using your accounts) violation of these Terms. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Arbitration Agreement
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with NowMedia Network, and limits the manner in which you can seek relief from us. Both you and NowMedia Network acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, NowMedia Network’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof. Any arbitrations filed after the date these terms go into effect must comply with these arbitration provisions.
The parties agree that this Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
Pre-Arbitration and Dispute Resolution Procedure
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to NowMedia Network must be emailed to XYZ email address (“Notice Address”). A Notice to you by NowMedia Network must be sent to the email address provided by you. Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute, including any relevant facts, and if you are submitting the Notice, facts pertaining to your use of the NowMedia Network site; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice; and (vi) if you are the claimant and are represented by counsel, your signed statement authorizing NowMedia Network to disclose your NowMedia Network site useage details to your attorney while seeking to resolve your claim. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures. All of the procedures are essential so that you and NowMedia Network have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess or demand fees in connection with an arbitration that has been initiated without completion of these procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these procedures in arbitration.
Arbitration Rules; Applicability of Arbitration Agreement
If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitrationThe arbitration will be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”), as modified by this Arbitration Agreement, and will be administered by the NAM. (If the NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. § 5.) The NAM Rules are available online at https://namadr.com/ by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM. For all U.S. residents, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For all non-U.S. residents, the arbitration shall be held in Washington, DC, District of Columbia.
You and we agree as otherwise expressly provided herein and except as to the party initiating arbitration must submit a certification that they have complied with and completed the Notice and Informal Dispute Resolution requirements referenced above and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the Arbitration Agreement, applicability of the SOL, whether claim can or should be brought in small claims, whether a plaintiff or the company has complied with the pre-arbitration notice and negotiation requirements, or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to this Arbitration Agreement or a previous arbitration provision between you and NowMedia Network), which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
The arbitrator’s decision is binding only between you and NowMedia Network and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and NowMedia Network agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including the awards of attorneys’ fees and costs in accordance with applicable law. You and we agree that dispositive motions shall be allowed in any arbitration if requested by either party.
In any arbitration between you and NowMedia Network, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
Costs of Arbitration
Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b). The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
Small Claims Court; Infringement
Either you or NowMedia Network may elect to have any claim that qualifies for small claims court in the United States county where you live or work heard by such small claims court. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Waiver of Jury Trial
YOU AND NowMedia Network WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and NowMedia Network are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and NowMedia Network over whether to vacate or enforce an arbitration award, YOU AND NowMedia Network WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor NowMedia Network is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth below.
Mass Filings Procedure
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings (“Mass Filing”) set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules,” available at https://namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements herein, until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration. Arbitrator selection for each batch or stage shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.
Stage One: Counsel for the claimants and counsel for NowMedia Network shall each select 10 claims per side (20 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and NowMedia Network shall pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for NowMedia Network shall each select 20 claims per side (40 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and NowMedia Network shall pay the mediator’s fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for NowMedia Network shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
Option One: You and NowMedia Network may separately or by agreement, opt out of arbitration and elect to have the claim heard in court consistent with the Agreement. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out by sending NowMedia Network an email to TOS.Disputes@NowMedia Networkmedia.com. Such an opt-out email must be sent by you personally, and not by your agent, attorney or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. NowMedia Network may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 days after the expiration of your 30 day opt out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two: If neither you nor NowMedia Network elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and NowMedia Network agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and NowMedia Network acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
Opt-out
You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: NowMedia Network Inc., 294 Washington St., Suite 500 Boston, MA 02108 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement. Notices sent to any other address, or sent by electronic mail or communicated orally, will not be accepted or effective. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, NowMedia Network also will not be bound by it.
Exclusive Venue
If you send the opt-out notice and/or in any circumstances where the foregoing arbitration agreement permits either you or NowMedia Network to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then both you and NowMedia Network agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Washington, DC, District of Columbia, or the federal district in which that county falls.
Trademarks & Patents
“NowMedia Network.,” the NowMedia Network design, our site names and logos, as well as certain other names, logos, and materials displayed in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of us or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.
Copyrights; Restrictions on Use
The content on the Services (the “Content”), including without limitation, video, text, photos, and graphics, is protected under United States and international copyright laws, is subject to other intellectual property and proprietary rights and laws, and is owned by us or our licensors. Other than with respect to your own User Submissions: (a) the Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and that of our applicable licensors; and (b) you must abide by all copyright notices, information, or restrictions contained in or attached to any Content. We give you a personal, revocable, non-assignable, non-sublicensable and non-exclusive right to access and use the Services in the manner permitted by these Terms. You acknowledge that you have no right to have access to all or any part of the Services in source code form.
Electronic Notices
You agree to transact with us electronically. Your affirmative act of registering, using or logging into the Services constitutes your acceptance signature to these Terms. We may provide notices to you electronically (1) via email if you have provided us with a valid email address or (2) by posting the notice on a website designated by us for this purpose. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Service.
Governing Law and Jurisdiction
For users outside of the European Union: these Terms and the relationship between you and us shall be governed by the laws of the District of Columbia as applied to agreements made, entered into, and performed entirely in the District of Columbia, notwithstanding your actual place of residence. All lawsuits arising from or relating to these Terms or your use of the Services shall be brought in the courts located in Washington, DC, District of Columbia, and you hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose
For users in the UK and within the European Union: these Terms are governed by English law and we both agree to submit to the nonexclusive jurisdiction of the English courts. If you are resident in another country in the EU, you may bring a claim to enforce your consumer protection rights in connection with these Terms in England or in the EU country in which you live.
Miscellaneous
Entire Agreement
These Terms, together with the terms of any end user license agreement to which you agree when downloading any software that we make available through the Services and any additional terms to which you agree when using particular elements of the Services (for example, terms specific to a site within the network of Sites or relating to the payment of fees for certain Services content or services), constitute the entire and exclusive and final statement of the agreement between you and us with respect to the subject matter hereof, and govern your use of the Services, superseding any prior agreements or negotiations between you and us with respect to the subject matter hereof.
Transfer of Rights
You may not transfer your rights or obligations under these Terms to anyone else without our prior written consent.
Conflicts
In the event of any conflict between these Terms and terms of a specific site within the network of Sites, these Terms shall govern.
Waiver and Severability
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of us and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For users outside of the European Union Only. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Headings
The section titles in these Terms are for convenience only and have no legal or contractual effect.
Survival
The terms of sections 2 and 12 through 20 of these Terms, as well as any other limitations on liability explicitly set forth herein, shall remain in full force and effect notwithstanding any termination of your use of the Services.
Our Relationship
Both parties are independent contractors of each other. No other person shall have any rights to enforce any of the provisions contained in these Terms. Neither party shall be deemed an employee, agent, partner, joint venture or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other, solely as a result of these Terms. In no event shall you be deemed under these Terms as being one of our employees or entitled to any of our employee benefits.