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Nextbit Terms of Service

Nextbit Systems Inc. (“Nextbit”) provides cloud capabilities to Nextbit's mobile computing devices through mobile software applications (each application, an “App”) and website https://nextbit.com (“Site”) (the Nextbit, the Apps, the Site, collectively the “Service”). This Master Terms of Service along with the Additional Terms (defined below), as such terms and policies may be updated from time to time (collectively, the “Terms”), governs your use of the Apps and the Nextbit Service.

By downloading an App, visiting the Site or otherwise accessing or using the Service, you agree that you have read, understood, and agree to be bound by these Terms. If you do not agree, you may not use the Service.

1. USE OF THE SERVICE.
You are solely responsible for the use of the Service. By using the service, you acknowledge that your use of the Service is solely at your own risk. Use of the App or any other downloadable software components provided by Nextbit is subject to these Master Terms of Service and any Additional Terms provided by Nextbit.

2. ADDITIONAL TERMS.
In addition to these Master Terms of Service, the following additional terms apply to your use of the Service. By using the Service, you agree to be bound by these additional terms (including any age restrictions applicable to use of a particular App or feature of the Service), as applicable, which are incorporated herein by reference (collectively the “Additional Terms”):

Privacy Policy, which describes Nextbit’s policies with respect to the collection, use, and disclosure of personal information from you; and

EULA, which governs your use of software applications you may obtain from Nextbit.
In the event of a conflict between the terms and conditions in this document and the terms in any of the Additional Terms, these Master Terms of Service will control.

3. LICENSE GRANT.
Subject to the Terms, Nextbit grants you a limited, non-exclusive, non-transferable, revocable license to use any software that is provided by Nextbit solely in connection with your use of the Service.

4. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS.
Account Information. In order to access some features of the Service, you may have to create an account. You hereby represent and warrant that the information you provide to Nextbit upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.

Password. As a registered user, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by any third party. As you will be responsible for all activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Nextbit by e-mail legal@nextbit.comYou are solely responsible for your own losses or losses incurred by Nextbit and others due to any unauthorized use of your account.

5. LINKED ACCOUNTS.
Some Apps and features of the Service may allow you to link your account(s) on the Service to your accounts on third party services, such as social media services. If you link your account on the Service to an account on a third party service (such as Gmail®, Facebook® or Bank of America®), you are authorizing Nextbit to store and use your access credentials to access your account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such third party service(s). Use of a third party service through the Service in this manner may be subject to additional terms established by the applicable third party, and it is your sole responsibility to comply with such third party terms.

6. THIRD PARTY CONTENT.
General. Nextbit may contain or display through the Service various materials and content from third parties (“Third Party Materials”). The display on or through the Service of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Nextbit of any third party or any affiliation between any such third party and Nextbit. Furthermore, in using and accessing the Service, you agree that Nextbit is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. Nextbit’s display of specific Third Party Materials does not suggest a recommendation by Nextbit of the third party or any products, services, websites or plans offered. Your interaction with any third party accessed through the Service (whether online or offline) is at your own risk, and Nextbit will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.

Third Party Links and References. The Service may contain references or links to third-party materials and websites not controlled by Nextbit. Nextbit provides such information and links as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that Nextbit is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Service.

7. USE RESTRICTIONS.
Nextbit does not allow use of the Service for any illegal, abusive purposes, in any manner that interferes with or interrupts the proper functioning of the Service, or through the use of any bot, crawler, spider, or other automated process. Nextbit reserves the right to restrict or terminate your right to use particular features of the Service if Nextbit determines, in its sole discretion, that your use violates these Terms or any other applicable Additional Terms.

8. SITE RESTRICTIONS.
You agree not to use the Site or any aspect or feature thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not, do or attempt to:
Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Site, use of the Site, access to the Site, or content obtained through the Site for any purpose other than for your authorized use of the features of the Service that you have fully paid for, in accordance with all applicable Terms;

Access or use the Site for any comparative or competitive research purposes;
Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, or features that enforce limitations on the use of the Site or any content therein;

Use any manual or automated means to extract and/or compile content from the Site for any commercial purpose or otherwise;

Interfere with or disrupt the Site, networks or servers connected to the Site, or violate the regulations, policies or procedures of such networks or servers;

Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the Site or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Site other than as intended; or

Use the Site in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

9. PURCHASES.
Additional terms and conditions may apply to purchases of goods or services and to specific portions or features of the Site, including contests, promotions or other similar features, all of which terms are made a part of these Terms of Use by this reference. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is a conflict between these Terms of Use and the terms posted for or applicable to a specific portion of the Site or for any service offered on or through the Site, the latter terms shall control with respect to your use of that portion of the Site or the specific service. Nextbit’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements. Nextbit may make changes to any products or services offered on the Site, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Site with respect to products and services may be out of date, and Nextbit makes no commitment to update the materials on the Site with respect to such products and services.

10. RESERVATION OF RIGHTS.
The Service is owned and operated by Nextbit. The software, content, visual interfaces, interactive features, information, trademarks, logos, graphics, design, compilation, computer code, products, software, services, content, and all other elements of the Service (“Nextbit Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Nextbit Materials, including intellectual property rights therein and thereto, are the property of Nextbit or its subsidiaries or affiliated companies and/or third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Nextbit Materials. Nextbit reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Nextbit Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.

11. TERM AND TERMINATION.
These Terms will remain in effect until terminated. These Terms, and your rights and licenses hereunder, will terminate immediately upon your breach of the Terms. You may terminate these Terms by canceling your account and subscription with Nextbit and, if applicable uninstalling and ceasing use of the Apps. Nextbit may terminate the Service, disable any App, and/or these Terms, or limit or terminate your access to the Services at any time for any reason or no reason at all. No refunds will be granted in connection with any termination of the Service. Sections 2, 8, 9, 10, 11, 12, 13, 14, 15, and 16 shall survive the termination of this Agreement for any reason, along with any provisions of the Additional Policies that expressly by their terms survive. You agree that termination of your account is your sole remedy for any dissatisfaction with the Service.

12. MODIFICATIONS.
Nextbit reserves the right, in its sole discretion, to add, remove, or modify features of the Service at any time for any reason without liability to you. Nextbit may change, modify, add, or remove portions of these Terms (including the Additional Terms) at any time by making such modified terms available to you on the Nextbit website or through an App, or both. The applicable modified terms will be identified as of the most recent date of revision and will be effective immediately upon posting, except as follows: in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Nextbit, if any, or a pop-up window or other notification when you access or use the Service, b) such materially modified Terms and or Additional Terms as applicable will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) no modifications to these Terms will apply to any dispute between you and Nextbit that arose prior to the date of such modification. Your use of the Service after modifications to these Terms become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of these Terms, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.

13. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEXTBIT DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. NEXTBIT EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, INCLUDING WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF THE SERVICE, THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION AVAILABLE THROUGH THE SERVICE.

14. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL NEXTBIT, ITS OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE AND THE INFORMATION AVAILABLE THEREON, EVEN IF NEXTBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL NEXTBIT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO YOUR USE OF THE SERVICE, WHETHER IN CONTRACT OR TORT, EXCEED THE AMOUNT OF SERVICE FEE, IF ANY, CHARGED BY NEXTBIT FOR THE SERVICE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

15. INDEMNITY.
You agree to indemnify, defend and hold Nextbit and its affiliates, officers, directors, suppliers, and customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the Service, your violation of the Terms, any applicable law or regulation, or the rights of any third parties related to the use of the Service.

16. DISPUTE RESOLUTION.

  1. Generally. In the interest of resolving disputes between you and Nextbit in the most expedient and cost effective manner, you and Nextbit agree that any and all disputes arising in connection with this Agreement shall 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, but is not limited to 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 the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Nextbit are each waiving the right to a trial by jury or to participate in a class action.
  2. Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims
  3. Arbitrator. Any arbitration between you and Nextbit 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 Nextbit.
  4. 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 in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Nextbit’s address for Notice is: Nextbit Systems Inc., 290 King Street, Suite #9, San Francisco, CA 94107. 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 30 days after the Notice is received, you or Nextbit may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Nextbit shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
  5. Fees. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara county, California, provided that if the claim is for $10,000 or less, Nextbit may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. 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 such case, you agree to reimburse Nextbit for all monies, if any, 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 shall 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 14 days of the arbitrator’s ruling on the merits.
  6. No Class Actions. YOU AND NEXTBIT 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 Nextbit 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.
  7. Modifications. In the event that Nextbit makes any future change to this arbitration provision (other than a change to the Nextbit’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Nextbit’s address for Notice, in which case your account with Nextbit shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
  8. Enforceability. If only Subsection (f) of this Section 16 or the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16 shall govern any action arising out of or related to these Terms.

17. MISCELLANEOUS.
These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Nextbit agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the Northern District of California for the purpose of litigating all such claims or disputes. These Terms (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and Nextbit, and supersedes any and all prior agreements, negotiations, or other communications between you and Nextbit, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. In the event that any provision of these Terms is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these Terms; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

You agree to abide by all applicable laws in your use of the Service, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions. The Service is controlled, operated and administered by Nextbit from its offices within the United States of America. If you access the Service from a location outside the United States, you are responsible for compliance with all local laws that apply to you. You agree that you will not use the Service or any Publications accessed through the Service in any country or in any manner prohibited by the United States Export Administration Act or any other applicable laws, restrictions or regulations.

You may not assign these Terms without the prior written consent of Nextbit, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Nextbit may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns. You acknowledge and understand that if Nextbit is unable to provide the Service as a result of a force majeure event Nextbit will not be in breach of these Terms. A force majeure event means any event beyond the control of Nextbit. The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. Nextbit’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.

18. CONTACTING NEXTBIT.

The Service hereunder is offered by Nextbit Systems Inc.:

290 King Street, Suite #9

San Francisco, CA 94107

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