Terms and Conditions
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF CORTEXBCI INC. D/B/A NEXSTEM, ITS AFFILIATES OR AGENTS (“NEXSTEM,” “US,” “OUR,” AND “WE”) ON WHICH A LINK TO THE TERMS OF USE APPEAR (COLLECTIVELY, THE “SITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY NEXSTEM. THE TERMS OF USE GOVERNS: (A) YOUR USE OF THE SITE AND OUR NEXSTEM WISDOM SDK PLATFORM (“PLATFORM”), (B) YOUR PURCHASE OF ANY PRODUCT WE SELL OR OUR SITE OR PLATFORM (THE “NEXSTEM PRODUCTS”) AND (C) YOUR USE OF THE SERVICES, NEXSTEM PRODUCTS, INFORMATION AND CONTENT, AVAILABLE OR ENABLED VIA THE SITE OR PLATFORM (COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, PURCHASING NEXSTEM PRODUCTS, DOWNLOADING THE PLATFORM, AND/OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE; (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY AND, IF APPLICABLE, ON BEHALF OF ANY LEGAL ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT LEGAL ENTITY TO THE TERMS OF USE; AND (3) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NEXSTEM. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU ACCESS OR USE THE SERVICES. If YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 16 OF THE TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
IF YOU PURCHASE A PLATFORM SUBSCRIPTION FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NEXSTEM’S THEN-CURRENT FEE FOR SUCH PLATFORM SUBSCRIPTION UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 9.2 (PLATFORM SUBSCRIPTION) BELOW.
Your use of, and participation in the Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use any portion of the Services that is subject to these additional terms (“Supplemental Service”). If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY NEXSTEM IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, nexstem will make a new copy of the Terms of Use available in the Platform and any new Supplemental Terms will be made available from within, or through, the affected Service on the Platform. We will also update the “Last Updated” date at the top of the Terms of Use. If we make material changes to the Terms of Use, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account or another manner through the Services (which may include posting an announcement on our Platform). nexstem may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform and/or the Services are permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform and/or the Services. Otherwise, your continued use of the Platform and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
1. Our Services: Through the Services, nexstem allows Registered Users (as defined in Section 3.1) to purchase the nexstem Product and utilize our Platform to monitor the data collected by the nexstem Product (“nexstem Product Data”). nexstem delivers the nexstem Product Data to each Registered User’s mobile device through the Platform. For more information on the data we collect, please review our Privacy Policy. While use of the nexstem Product and the nexstem Product Data collected through the Platform is specific to each Registered User, the Services enable Registered Users to allow other authorized guests (“Authorized User(s)”) to try the nexstem Product without purchasing the nexstem Product or registering for an Account under a separate profile of the Registered User’s Account. Registered Users remain responsible, under the Agreement, for all Authorized Users’ use of the nexstem Product and the Services. Registered Users agree that they will be liable for any breach of the Agreement resulting from or relating to an Authorized Users’ use of the nexstem Device or Services.
2. NexStem PROPERTIES: The Platform, the Site, and the Services, and the information and content available on the Platform, the Site and the Services (as these terms are defined herein) (each, a “nexstem Property” and collectively, the “nexstem Properties”) are protected by U.S. intellectual property laws. Unless otherwise specified by nexstem in a separate license, your right to use any and all nexstem Properties is subject to the Agreement. Subject to the Agreement, nexstem grants you a limited license to reproduce portions of the nexstem Properties for the sole purpose of using the Services for your personal purposes.
2.1 Updates: You understand that the nexstem Properties are evolving. As a result, nexstem may require you to accept updates to the nexstem Properties that you have installed on your mobile device. You acknowledge and agree that nexstem may update the nexstem Properties with or without notifying you. You may need to update third-party software and agree to third-party agree from time to time in order to use the nexstem Properties.
2.2 Certain Restrictions: The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the nexstem Properties or any portion of the nexstem Properties, including the Platform; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the nexstem Properties (including images, text, page layout or form) of nexstem; (c) you shall not use any metatags or other “hidden text” using nexstem’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the nexstem Properties, including the nexstem Device, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the nexstem Properties in order to build a similar or competitive Platform product or service; (g) except as expressly stated herein, no part of the nexstem Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the nexstem Properties or nexstem Product. Any future release, update or other addition to the nexstem Properties shall be subject to the Agreement. nexstem, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any nexstem Property terminates the licenses granted by nexstem pursuant to the Agreement.
2.3 Third-Party Materials: As a part of the nexstem Properties you may have access to materials that are hosted by another party. You agree that it is impossible for nexstem to monitor such materials and that you access these materials at your own risk.
3. REGISTRATION.
3.1 Registering Your Account: In order to access the Platform and use the nexstem Product, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Platform (“Account”).
3.2 Registration Data: In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least eighteen (18) years old; (m) of legal age to form a binding contract or that you have reviewed the Terms of Use with your parent or legal guardian and he or she agrees to the Terms of Use on your behalf; and (n) not a person barred from using the nexstem Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the nexstem Properties by minors. With the exception of Authorized Users, you may not share your Account or password with anyone, and you agree to (y) notify nexstem immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or nexstem has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, nexstem has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). With the exception of Authorized Users, You agree not to create an Account on behalf of someone other than yourself. nexstem reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the nexstem Properties if you have been previously removed by nexstem, or if you have been previously banned from any of the nexstem Properties.
3.3 Your Account: Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of nexstem.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the nexstem Properties, including but not limited to, a mobile device that is suitable to connect with and use the nexstem Properties. You are solely responsible for any fees, fees for any third-party platforms, Internet connection or mobile fees, that you incur when accessing the nexstem Properties.
4. RESPONSIBILITY FOR CONTENT.
4.1 Types of Content: You acknowledge that all information supplied in and on the Platform and Services (“Content”), including the nexstem Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not nexstem, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the nexstem Properties (“Your Content”), and that you and other Registered Users, and not nexstem, are similarly responsible for all Content that you and they Make Available through the nexstem Properties (“User Content”).
4.2 No Obligation to Pre-Screen Content: You acknowledge that nexstem has no obligation to pre-screen Content (including, but not limited to, User Content), although nexstem reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that nexstem pre-screens, refuses or removes any Content, you acknowledge that nexstem will do so for nexstem’s benefit, not yours. Without limiting the foregoing, nexstem shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
4.3 Storage: Unless expressly agreed to by nexstem in writing elsewhere, nexstem has no obligation to store any of Your Content that you Make Available on the nexstem Properties. nexstem has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the nexstem Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. You agree that nexstem retains the right to create reasonable limits on nexstem’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by nexstem in its sole discretion.
5. OWNERSHIP
5.1 The nexstem Properties: Except with respect to Your Content and User Content, you agree that nexstem and its suppliers own all rights, title and interest in the nexstem Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the nexstem Properties.
5.2 Trademarks: “CortexBCI”, “nexstem” and all related graphics, logos, service marks and trade names used on or in connection with any the nexstem Properties or in connection with the Services are the trademarks of nexstem and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the nexstem Properties are the property of their respective owners.
5.3 Other Content: Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in the nexstem Properties.
5.4 Your Content: nexstem does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on the nexstem Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.5 License to Your Content: You grant nexstem a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, host, display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, providing, developing and improving the nexstem Properties to you and to our other Registered Users; as well as researching and developing new Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not nexstem, are responsible for all of Your Content that you Make Available on the nexstem Properties.
5.6 Feedback: You agree that submission of any ideas, suggestions, documents, and/or proposals to nexstem through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that nexstem has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to nexstem a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of our Platform, Services, the nexstem Properties and/or nexstem’s business.
6. USER CONDUCT.
6.1 Prohibitions on Use: As a condition of use, you agree not to use the nexstem Properties for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the nexstem Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) impersonates any person or entity, including any employee or representative of nexstem; (vi) interferes with or attempts to interfere with the proper functioning of the nexstem Properties or uses the nexstem Properties in any way not expressly permitted by the Agreement; or (vii) to attempt or engage in any potentially harmful acts that are directed against the nexstem Properties, including but not limited to violating or attempting to violate any security features of the nexstem Properties, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the nexstem Properties, introducing viruses, worms, or similar harmful code into the nexstem Properties, or interfering or attempting to interfere with use of the nexstem Properties by any other User, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the nexstem Properties.
6.2 Commercial Activities: You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
I. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any nexstem Property.
II. Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the nexstem Properties (including your Account), or access to or use of the nexstem Properties.
III. Use the nexstem Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation.
IV. Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with the nexstem Properties.
V. Market any goods or services for any business purposes on or in connection with any the nexstem Properties.
7. INVESTIGATIONS. nexstem may, but is not obligated to, monitor or review the nexstem Properties and Content at any time. Without limiting the foregoing, nexstem shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although nexstem does not generally monitor user activity occurring in connection with the nexstem Properties or Content, if nexstem becomes aware of any possible violations by you of any provision of the Agreement, nexstem reserves the right to investigate such violations, and nexstem may, at its sole discretion, immediately terminate your license to use the nexstem Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. THIRD-PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads: The nexstem Properties may contain links to third-party websites (“Third-Party Websites”), and applications (“Third-Party Applications”), and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the nexstem Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of nexstem. nexstem is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. nexstem provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 Third-Party Content: The nexstem Properties may utilize or include content, software, and other copyrighted materials provided by third parties (“Third-Party Content”). Your use of such Third-Party Content is governed by their respective terms and conditions. By Accepting the Terms of Use, you are also accepting the additional terms and conditions of the third parties. nexstem expressly disclaims any and all warranties in connection with Third-Party Content, and shall have no liability in connection therewith.
9. Fees and Purchase Terms.
9.1 Fees: You may place an order for a nexstem Product or the Platform subscription through our Site or through a purchase order issued by nexstem (an “Order”). All nexstem Product fees (“Product Fees”) and Platform subscription fees (“Subscription Fees,” and together with the Product Fees, the “Fees”) are non-refundable and shall be paid in accordance with the terms of this Agreement. Details on our pricing can be found here. We reserve the right to modify our pricing at our sole discretion.
9.2 Platform Subscription: Your Platform subscription will continue on a month-to-month basis indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at nexstem’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription prior to the Renewal Commencement Date, by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact nexstem at support@cortexbci.com or +1(864)900-9209 or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. By subscribing, you authorize nexstem to charge your Payment Provider (as defined below) now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if nexstem does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that nexstem may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.3 Payments Made through the Site: To pay for an Order, you will need to provide nexstem with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site (each, a “Payment Provider”). By submitting your payment information to us, you authorize us to charge the applicable Payment Provider at our convenience but within thirty (30) days of credit card authorization. You represent and warrant that you will not use any Payment Provider unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
9.4 Taxes and Fees: Unless otherwise indicated, the prices listed on the Site do not include sales tax, shipping, and handling charges. You will have the opportunity to review nexstem Product prices and the estimated sales tax, shipping, and handling charges prior to submitting your Order or completing the checkout process. The final calculation of the actual sales tax collected, which will be calculated in accordance with the tax code of the city and state to which the order will be shipped, will be reflected in your Order confirmation e-mail and packing slip. Except for sales tax which is collected by nexstem, prices for nexstem Products exclude all other taxes, duties, levies or fees, or other similar charges imposed on you by any taxing authority related to your Order. You are responsible for payment of such taxes, duties, levies, fees or other similar charges resulting from your Order (other than taxes imposed on nexstem's income) and we are not responsible for collecting, reporting, paying, remitting to you any such taxes, fees, or charges.
10. Terms of Sale. These Terms shall govern any Order for nexstem Products.
10.1 Order Acceptance: When you place an Order through the Site, we will confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order. Your placement of an Order through our Site is an offer to purchase the nexstem Product ordered and we may accept your Order by processing your payment and shipping the Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. Your Order will be deemed accepted by nexstem upon our delivery of the nexstem Product that you have ordered. We may require additional verifications or information before accepting any Order.
10.2 Shipping: nexstem ships nexstem Products purchased through the Site to street addresses and PO Boxes. Not all delivery options are available in all areas. Not all nexstem Products are available in all areas. Due to manufacturing requirements, nexstem shall use commercialy reasonable efforts to ship all nexstem Products within 30 days from when you place an Order. The risk of loss and title for items you purchase pass to you upon our delivery of the items to the carrier. Replacement of nexstem Products and credits for shipped nexstem Products claimed as not received are subject to investigation, which may include notifying the carrier. Your nexstem Product shipment will be delivered via DHL, FedEx, UPS or any other carrier we may engage. You will receive email confirmation(s) as your order ships from nexstem or a third party authorized by nexstem. We do not allow address changes after we send such email confirmation of your order shipment.
10.3 Tracking your order: As your Order ships, we will send you an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking detail may not be active immediately with FedEx or any other carrier we engage; in that case, check back in several hours or the following day.
10.4 Return Policy: You may request a return for the nexstem Product in accordance with our return policy found here.
10.5 Restriction on Resale: You acknowledge that the Site is only intended to be used to purchase products for personal, non-commercial use. nexstem Products sold on the Site or Platform are not authorized for resale. nexstem reserves the right to decline any Order that we deem to possess characteristics of reselling.
11. Indemnification. You agree to indemnify and hold nexstem, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “nexstem Party” and collectively, the “nexstem Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any nexstem Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. nexstem reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with nexstem in asserting any available defenses. This provision does not require you to indemnify any of the nexstem Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the nexstem Properties.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 Not a Medical Device: THE NEXSTEM PRODUCTS ARE NOT CERTIFIED, CLEARED OR APPROVED AS MEDICAL DEVICES. THE SERVICES AND NEXSTEM PRODUCTS DO NOT PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT, AND THE SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. NEXSTEM IS NOT A LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR USING YOUR OWN JUDGEMENT IN ASSESSING THE VALIDITY AND USEFULNESS OF ANY RESULTS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR NEXSTEM PRODUCT. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK.
12.2 As Is: YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.4, YOUR USE OF NEXSTEM PROPERTIES IS AT YOUR SOLE RISK, AND THE NEXSTEM PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEXSTEM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEXSTEM PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE NEXSTEM PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE NEXSTEM PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
12.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NEXSTEM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NEXSTEM PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. NEXSTEM MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NEXSTEM MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE NEXSTEM PROPERTIES.
12.4 Limited Product Warranty: For nexstem Products, the only warranty is the Limited Warranty Policy available here.
13. LIMITATION OF LIABILITY.
13.1 Disclaimer of Certain Damages: YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NEXSTEM PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT NEXSTEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF NEXSTEM PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCTS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCTS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE NEXSTEM PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCT, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NEXSTEM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NEXSTEM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NEXSTEM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2 Cap on Liability: UNDER NO CIRCUMSTANCES WILL NEXSTEM PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) AND (B) THE AMOUNT YOU HAVE PAID TO NEXSTEM UNDER THIS AGREEMENT IN THE PREVIOUS SIX (6) MONTHS. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NEXSTEM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NEXSTEM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NEXSTEM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3 User Content: EXCEPT FOR NEXSTEM’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE NEXSTEM’S PRIVACY POLICY, NEXSTEM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4 Basis of the Bargain: THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEXSTEM AND YOU.
14. REMEDIES.
14.1 Violations: If nexstem becomes aware of any possible violations by you of the Agreement, nexstem reserves the right to investigate such violations. If, as a result of the investigation, nexstem believes that criminal activity has occurred, nexstem reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. nexstem is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the nexstem Properties, including Your Content, in nexstem’s possession in connection with your use of the nexstem Properties, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Term of Use, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of nexstem, its Registered Users or the public, and all enforcement or other government officials, as nexstem in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that nexstem determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the nexstem Properties, nexstem reserves the right to:
I. Delete any of Your Content provided by you or your agent(s) to the nexstem.
II. Warn you via e-mail (to any e-mail address you have provided to nexstem) that you have violated the Agreement;
III. Discontinue your registration with any of the nexstem Properties, including any Services or any nexstem community;
IV. Discontinue your access to any Services;
V. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
VI. Pursue any other action which nexstem deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term: The Agreement commences on the date when you accept the terms (as described in the preamble above) and remain in full force and effect while you use the nexstem Properties and nexstem Product, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use: Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the nexstem Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any the nexstem Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by nexstem: At its sole discretion, nexstem may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party.
15.4 Termination of Services by You: If you want to terminate the Services provided by nexstem, you may do so by closing your Account for all of the Services that you use.
15.5 Effect of Termination: Termination of any Services includes removal of access to such Service and barring of further use of the Service. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. nexstem will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with nexstem and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with nexstem, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or nexstem may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum: The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, nexstem will pay them for you. In addition, nexstem will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator: The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and nexstem. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial: YOU AND NEXSTEM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and nexstem are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other claims shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@cortexbci.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your nexstem username (if any), the email address you used to set up your nexstem account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability: Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with nexstem.
16.9 Modification: Notwithstanding any provision in this Agreement to the contrary, we agree that if nexstem makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing nexstem at the following address: 628 Forest Ave, Apartment C, Palo Alto, CA 94301, Attn: DISPUTE NOTICE.
17. GENERAL PROVISIONS.
17.1 Electronic Communications: The communications between you and nexstem may take place via electronic means, whether you visit the nexstem Properties or send nexstem e-mails, or whether nexstem posts notices on the nexstem Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from nexstem in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that nexstem provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release: You hereby release nexstem Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the nexstem Properties, including but not limited to, any interactions with or conduct of other Registered Users or Third-Party Websites of any kind arising in connection with or as a result of the Agreement or your use of the nexstem Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a nexstem Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.
17.3 Assignment: The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without nexstem’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure: nexstem shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims: If you have any questions, complaints or claims with respect to the nexstem Properties, please contact us at: support@cortexbci.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue: To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and nexstem agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
17.7 Governing Law: THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.8 Notice: Where nexstem requires that you provide an e-mail address, you are responsible for providing nexstem with your most current e-mail address. In the event that the last e-mail address you provided to nexstem is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, nexstem’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to nexstem at the following address: 628 Forest Ave, Apartment C, Palo Alto, CA 94301, Attn: DISPUTE NOTICE. Such notice shall be deemed given when received by nexstem by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver: Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability: If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.12 Entire Agreement: The Agreement, including any Orders, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
PLEASE BE AWARE THAT SECTION 16 OF THE TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
IF YOU PURCHASE A PLATFORM SUBSCRIPTION FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NEXSTEM’S THEN-CURRENT FEE FOR SUCH PLATFORM SUBSCRIPTION UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 9.2 (PLATFORM SUBSCRIPTION) BELOW.
Your use of, and participation in the Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use any portion of the Services that is subject to these additional terms (“Supplemental Service”). If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY NEXSTEM IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, nexstem will make a new copy of the Terms of Use available in the Platform and any new Supplemental Terms will be made available from within, or through, the affected Service on the Platform. We will also update the “Last Updated” date at the top of the Terms of Use. If we make material changes to the Terms of Use, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account or another manner through the Services (which may include posting an announcement on our Platform). nexstem may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform and/or the Services are permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform and/or the Services. Otherwise, your continued use of the Platform and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
1. Our Services: Through the Services, nexstem allows Registered Users (as defined in Section 3.1) to purchase the nexstem Product and utilize our Platform to monitor the data collected by the nexstem Product (“nexstem Product Data”). nexstem delivers the nexstem Product Data to each Registered User’s mobile device through the Platform. For more information on the data we collect, please review our Privacy Policy. While use of the nexstem Product and the nexstem Product Data collected through the Platform is specific to each Registered User, the Services enable Registered Users to allow other authorized guests (“Authorized User(s)”) to try the nexstem Product without purchasing the nexstem Product or registering for an Account under a separate profile of the Registered User’s Account. Registered Users remain responsible, under the Agreement, for all Authorized Users’ use of the nexstem Product and the Services. Registered Users agree that they will be liable for any breach of the Agreement resulting from or relating to an Authorized Users’ use of the nexstem Device or Services.
2. NexStem PROPERTIES: The Platform, the Site, and the Services, and the information and content available on the Platform, the Site and the Services (as these terms are defined herein) (each, a “nexstem Property” and collectively, the “nexstem Properties”) are protected by U.S. intellectual property laws. Unless otherwise specified by nexstem in a separate license, your right to use any and all nexstem Properties is subject to the Agreement. Subject to the Agreement, nexstem grants you a limited license to reproduce portions of the nexstem Properties for the sole purpose of using the Services for your personal purposes.
2.1 Updates: You understand that the nexstem Properties are evolving. As a result, nexstem may require you to accept updates to the nexstem Properties that you have installed on your mobile device. You acknowledge and agree that nexstem may update the nexstem Properties with or without notifying you. You may need to update third-party software and agree to third-party agree from time to time in order to use the nexstem Properties.
2.2 Certain Restrictions: The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the nexstem Properties or any portion of the nexstem Properties, including the Platform; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the nexstem Properties (including images, text, page layout or form) of nexstem; (c) you shall not use any metatags or other “hidden text” using nexstem’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the nexstem Properties, including the nexstem Device, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the nexstem Properties in order to build a similar or competitive Platform product or service; (g) except as expressly stated herein, no part of the nexstem Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the nexstem Properties or nexstem Product. Any future release, update or other addition to the nexstem Properties shall be subject to the Agreement. nexstem, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any nexstem Property terminates the licenses granted by nexstem pursuant to the Agreement.
2.3 Third-Party Materials: As a part of the nexstem Properties you may have access to materials that are hosted by another party. You agree that it is impossible for nexstem to monitor such materials and that you access these materials at your own risk.
3. REGISTRATION.
3.1 Registering Your Account: In order to access the Platform and use the nexstem Product, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Platform (“Account”).
3.2 Registration Data: In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least eighteen (18) years old; (m) of legal age to form a binding contract or that you have reviewed the Terms of Use with your parent or legal guardian and he or she agrees to the Terms of Use on your behalf; and (n) not a person barred from using the nexstem Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the nexstem Properties by minors. With the exception of Authorized Users, you may not share your Account or password with anyone, and you agree to (y) notify nexstem immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or nexstem has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, nexstem has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). With the exception of Authorized Users, You agree not to create an Account on behalf of someone other than yourself. nexstem reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the nexstem Properties if you have been previously removed by nexstem, or if you have been previously banned from any of the nexstem Properties.
3.3 Your Account: Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of nexstem.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the nexstem Properties, including but not limited to, a mobile device that is suitable to connect with and use the nexstem Properties. You are solely responsible for any fees, fees for any third-party platforms, Internet connection or mobile fees, that you incur when accessing the nexstem Properties.
4. RESPONSIBILITY FOR CONTENT.
4.1 Types of Content: You acknowledge that all information supplied in and on the Platform and Services (“Content”), including the nexstem Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not nexstem, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the nexstem Properties (“Your Content”), and that you and other Registered Users, and not nexstem, are similarly responsible for all Content that you and they Make Available through the nexstem Properties (“User Content”).
4.2 No Obligation to Pre-Screen Content: You acknowledge that nexstem has no obligation to pre-screen Content (including, but not limited to, User Content), although nexstem reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that nexstem pre-screens, refuses or removes any Content, you acknowledge that nexstem will do so for nexstem’s benefit, not yours. Without limiting the foregoing, nexstem shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
4.3 Storage: Unless expressly agreed to by nexstem in writing elsewhere, nexstem has no obligation to store any of Your Content that you Make Available on the nexstem Properties. nexstem has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the nexstem Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. You agree that nexstem retains the right to create reasonable limits on nexstem’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by nexstem in its sole discretion.
5. OWNERSHIP
5.1 The nexstem Properties: Except with respect to Your Content and User Content, you agree that nexstem and its suppliers own all rights, title and interest in the nexstem Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the nexstem Properties.
5.2 Trademarks: “CortexBCI”, “nexstem” and all related graphics, logos, service marks and trade names used on or in connection with any the nexstem Properties or in connection with the Services are the trademarks of nexstem and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the nexstem Properties are the property of their respective owners.
5.3 Other Content: Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in the nexstem Properties.
5.4 Your Content: nexstem does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on the nexstem Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.5 License to Your Content: You grant nexstem a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, host, display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, providing, developing and improving the nexstem Properties to you and to our other Registered Users; as well as researching and developing new Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not nexstem, are responsible for all of Your Content that you Make Available on the nexstem Properties.
5.6 Feedback: You agree that submission of any ideas, suggestions, documents, and/or proposals to nexstem through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that nexstem has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to nexstem a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of our Platform, Services, the nexstem Properties and/or nexstem’s business.
6. USER CONDUCT.
6.1 Prohibitions on Use: As a condition of use, you agree not to use the nexstem Properties for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the nexstem Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) impersonates any person or entity, including any employee or representative of nexstem; (vi) interferes with or attempts to interfere with the proper functioning of the nexstem Properties or uses the nexstem Properties in any way not expressly permitted by the Agreement; or (vii) to attempt or engage in any potentially harmful acts that are directed against the nexstem Properties, including but not limited to violating or attempting to violate any security features of the nexstem Properties, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the nexstem Properties, introducing viruses, worms, or similar harmful code into the nexstem Properties, or interfering or attempting to interfere with use of the nexstem Properties by any other User, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the nexstem Properties.
6.2 Commercial Activities: You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
I. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any nexstem Property.
II. Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the nexstem Properties (including your Account), or access to or use of the nexstem Properties.
III. Use the nexstem Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation.
IV. Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with the nexstem Properties.
V. Market any goods or services for any business purposes on or in connection with any the nexstem Properties.
7. INVESTIGATIONS. nexstem may, but is not obligated to, monitor or review the nexstem Properties and Content at any time. Without limiting the foregoing, nexstem shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although nexstem does not generally monitor user activity occurring in connection with the nexstem Properties or Content, if nexstem becomes aware of any possible violations by you of any provision of the Agreement, nexstem reserves the right to investigate such violations, and nexstem may, at its sole discretion, immediately terminate your license to use the nexstem Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. THIRD-PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads: The nexstem Properties may contain links to third-party websites (“Third-Party Websites”), and applications (“Third-Party Applications”), and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the nexstem Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of nexstem. nexstem is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. nexstem provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 Third-Party Content: The nexstem Properties may utilize or include content, software, and other copyrighted materials provided by third parties (“Third-Party Content”). Your use of such Third-Party Content is governed by their respective terms and conditions. By Accepting the Terms of Use, you are also accepting the additional terms and conditions of the third parties. nexstem expressly disclaims any and all warranties in connection with Third-Party Content, and shall have no liability in connection therewith.
9. Fees and Purchase Terms.
9.1 Fees: You may place an order for a nexstem Product or the Platform subscription through our Site or through a purchase order issued by nexstem (an “Order”). All nexstem Product fees (“Product Fees”) and Platform subscription fees (“Subscription Fees,” and together with the Product Fees, the “Fees”) are non-refundable and shall be paid in accordance with the terms of this Agreement. Details on our pricing can be found here. We reserve the right to modify our pricing at our sole discretion.
9.2 Platform Subscription: Your Platform subscription will continue on a month-to-month basis indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at nexstem’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription prior to the Renewal Commencement Date, by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact nexstem at support@cortexbci.com or +1(864)900-9209 or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period. By subscribing, you authorize nexstem to charge your Payment Provider (as defined below) now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if nexstem does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that nexstem may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.3 Payments Made through the Site: To pay for an Order, you will need to provide nexstem with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Site (each, a “Payment Provider”). By submitting your payment information to us, you authorize us to charge the applicable Payment Provider at our convenience but within thirty (30) days of credit card authorization. You represent and warrant that you will not use any Payment Provider unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however, you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
9.4 Taxes and Fees: Unless otherwise indicated, the prices listed on the Site do not include sales tax, shipping, and handling charges. You will have the opportunity to review nexstem Product prices and the estimated sales tax, shipping, and handling charges prior to submitting your Order or completing the checkout process. The final calculation of the actual sales tax collected, which will be calculated in accordance with the tax code of the city and state to which the order will be shipped, will be reflected in your Order confirmation e-mail and packing slip. Except for sales tax which is collected by nexstem, prices for nexstem Products exclude all other taxes, duties, levies or fees, or other similar charges imposed on you by any taxing authority related to your Order. You are responsible for payment of such taxes, duties, levies, fees or other similar charges resulting from your Order (other than taxes imposed on nexstem's income) and we are not responsible for collecting, reporting, paying, remitting to you any such taxes, fees, or charges.
10. Terms of Sale. These Terms shall govern any Order for nexstem Products.
10.1 Order Acceptance: When you place an Order through the Site, we will confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order. Your placement of an Order through our Site is an offer to purchase the nexstem Product ordered and we may accept your Order by processing your payment and shipping the Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. Your Order will be deemed accepted by nexstem upon our delivery of the nexstem Product that you have ordered. We may require additional verifications or information before accepting any Order.
10.2 Shipping: nexstem ships nexstem Products purchased through the Site to street addresses and PO Boxes. Not all delivery options are available in all areas. Not all nexstem Products are available in all areas. Due to manufacturing requirements, nexstem shall use commercialy reasonable efforts to ship all nexstem Products within 30 days from when you place an Order. The risk of loss and title for items you purchase pass to you upon our delivery of the items to the carrier. Replacement of nexstem Products and credits for shipped nexstem Products claimed as not received are subject to investigation, which may include notifying the carrier. Your nexstem Product shipment will be delivered via DHL, FedEx, UPS or any other carrier we may engage. You will receive email confirmation(s) as your order ships from nexstem or a third party authorized by nexstem. We do not allow address changes after we send such email confirmation of your order shipment.
10.3 Tracking your order: As your Order ships, we will send you an email providing the shipment tracking number(s). To see the detailed progress of your shipment, click on the tracking number link provided in your email. Please note that tracking detail may not be active immediately with FedEx or any other carrier we engage; in that case, check back in several hours or the following day.
10.4 Return Policy: You may request a return for the nexstem Product in accordance with our return policy found here.
10.5 Restriction on Resale: You acknowledge that the Site is only intended to be used to purchase products for personal, non-commercial use. nexstem Products sold on the Site or Platform are not authorized for resale. nexstem reserves the right to decline any Order that we deem to possess characteristics of reselling.
11. Indemnification. You agree to indemnify and hold nexstem, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “nexstem Party” and collectively, the “nexstem Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any nexstem Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. nexstem reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with nexstem in asserting any available defenses. This provision does not require you to indemnify any of the nexstem Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the nexstem Properties.
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 Not a Medical Device: THE NEXSTEM PRODUCTS ARE NOT CERTIFIED, CLEARED OR APPROVED AS MEDICAL DEVICES. THE SERVICES AND NEXSTEM PRODUCTS DO NOT PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT, AND THE SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. NEXSTEM IS NOT A LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR USING YOUR OWN JUDGEMENT IN ASSESSING THE VALIDITY AND USEFULNESS OF ANY RESULTS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR NEXSTEM PRODUCT. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK.
12.2 As Is: YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.4, YOUR USE OF NEXSTEM PROPERTIES IS AT YOUR SOLE RISK, AND THE NEXSTEM PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEXSTEM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEXSTEM PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE NEXSTEM PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE NEXSTEM PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
12.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NEXSTEM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NEXSTEM PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. NEXSTEM MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NEXSTEM MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE NEXSTEM PROPERTIES.
12.4 Limited Product Warranty: For nexstem Products, the only warranty is the Limited Warranty Policy available here.
13. LIMITATION OF LIABILITY.
13.1 Disclaimer of Certain Damages: YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NEXSTEM PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT NEXSTEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF NEXSTEM PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCTS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCTS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE NEXSTEM PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE NEXSTEM PROPERTIES OR NEXSTEM PRODUCT, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NEXSTEM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NEXSTEM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NEXSTEM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2 Cap on Liability: UNDER NO CIRCUMSTANCES WILL NEXSTEM PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) AND (B) THE AMOUNT YOU HAVE PAID TO NEXSTEM UNDER THIS AGREEMENT IN THE PREVIOUS SIX (6) MONTHS. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NEXSTEM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NEXSTEM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NEXSTEM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3 User Content: EXCEPT FOR NEXSTEM’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE NEXSTEM’S PRIVACY POLICY, NEXSTEM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4 Basis of the Bargain: THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEXSTEM AND YOU.
14. REMEDIES.
14.1 Violations: If nexstem becomes aware of any possible violations by you of the Agreement, nexstem reserves the right to investigate such violations. If, as a result of the investigation, nexstem believes that criminal activity has occurred, nexstem reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. nexstem is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the nexstem Properties, including Your Content, in nexstem’s possession in connection with your use of the nexstem Properties, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Term of Use, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of nexstem, its Registered Users or the public, and all enforcement or other government officials, as nexstem in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that nexstem determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the nexstem Properties, nexstem reserves the right to:
I. Delete any of Your Content provided by you or your agent(s) to the nexstem.
II. Warn you via e-mail (to any e-mail address you have provided to nexstem) that you have violated the Agreement;
III. Discontinue your registration with any of the nexstem Properties, including any Services or any nexstem community;
IV. Discontinue your access to any Services;
V. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
VI. Pursue any other action which nexstem deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term: The Agreement commences on the date when you accept the terms (as described in the preamble above) and remain in full force and effect while you use the nexstem Properties and nexstem Product, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use: Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the nexstem Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any the nexstem Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by nexstem: At its sole discretion, nexstem may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party.
15.4 Termination of Services by You: If you want to terminate the Services provided by nexstem, you may do so by closing your Account for all of the Services that you use.
15.5 Effect of Termination: Termination of any Services includes removal of access to such Service and barring of further use of the Service. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. nexstem will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with nexstem and limits the manner in which you can seek relief from us.
16.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, or to any aspect of your relationship with nexstem, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or nexstem may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum: The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, nexstem will pay them for you. In addition, nexstem will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator: The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and nexstem. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial: YOU AND NEXSTEM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and nexstem are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other claims shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@cortexbci.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your nexstem username (if any), the email address you used to set up your nexstem account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability: Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with nexstem.
16.9 Modification: Notwithstanding any provision in this Agreement to the contrary, we agree that if nexstem makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing nexstem at the following address: 628 Forest Ave, Apartment C, Palo Alto, CA 94301, Attn: DISPUTE NOTICE.
17. GENERAL PROVISIONS.
17.1 Electronic Communications: The communications between you and nexstem may take place via electronic means, whether you visit the nexstem Properties or send nexstem e-mails, or whether nexstem posts notices on the nexstem Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from nexstem in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that nexstem provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release: You hereby release nexstem Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the nexstem Properties, including but not limited to, any interactions with or conduct of other Registered Users or Third-Party Websites of any kind arising in connection with or as a result of the Agreement or your use of the nexstem Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a nexstem Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.
17.3 Assignment: The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without nexstem’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure: nexstem shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims: If you have any questions, complaints or claims with respect to the nexstem Properties, please contact us at: support@cortexbci.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Exclusive Venue: To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and nexstem agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
17.7 Governing Law: THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
17.8 Notice: Where nexstem requires that you provide an e-mail address, you are responsible for providing nexstem with your most current e-mail address. In the event that the last e-mail address you provided to nexstem is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, nexstem’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to nexstem at the following address: 628 Forest Ave, Apartment C, Palo Alto, CA 94301, Attn: DISPUTE NOTICE. Such notice shall be deemed given when received by nexstem by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.9 Waiver: Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 Severability: If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.11 Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.12 Entire Agreement: The Agreement, including any Orders, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.