LAST REVISED ON: 2nd of Sep, 2015
The website located at www.fronto.co (the “Site”) and the Services are copyrighted works belonging to NBT America, Inc. (“NBT America”, “us”, “our”, and “we”). NBT America provides a mobile application called Fronto (the “App”, “Fronto”, and collectively with the Site and all services provided through the Site and App, the “Services”) that allows businesses to deliver contents(“Contents”), promotions, coupons, and deals (collectively, “Advertisements”) to a user’s smartphone lockscreen — and compensates users with reward points (“Reward Points”) that can be redeemed for cash, gift cards, products and services from participating partners and / or making charitable contributions to participating non-profit organizations. Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
THESE ADVERTISING & USE TERMS (“AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE, THE APP, OR SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 13 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
1.1 Account Creation
In order to use certain features of the Site and the App (e.g., to use the Services), you must register for an account with Fronto (“Fronto Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will provide us updates and maintain the accuracy of such information. You may delete your Fronto Account at any time, for any reason, by following the instructions within the Services. Fronto may suspend or terminate your Fronto Account in accordance with Section 11.
1.2 Account Responsibilities
You are responsible for maintaining the confidentiality of your Fronto Account login information and are fully responsible for all activities that occur under your Fronto Account. You agree to immediately notify Fronto of any unauthorized use, or suspected unauthorized use of your Fronto Account or any other breach of security. Fronto cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Account Limitations
1) We do not allow users to create multiple accounts using a single device. An individual who creates multiple accounts to earn Reward Points using Fronto and Fronto’s Friends Referral Program is considered to have breached Fronto’s Advertising & Use Terms, and Fronto has the right to shut down his or her account. Even with multiple devices, having only one Fronto account per a user is allowed. 2) A user must have an activated SIM card on his or her smartphone device. Using a phone without SIM card or emulator is strictly prohibited. 3) Fronto is only available for use in certain countries. All usage outside of the those countries is not eligible to open an account, earn Reward Points and redeem Reward Points. 4) Sharing Paypal with someone else is strictly prohibited. A user must use his or her own Paypal account. 5) Any accounts using proxy or VPN connection will be automatically banned. Please don't use proxy or VPN while running Fronto.
2. REWARD POINTS
2.1 Advertisements on Your Lockscreen; Earn Reward Points!
When you download the App, Fronto will display Contents and Advertisements on the lockscreen of your mobile phone. By moving the unlock ring to the engagement sign, and further engaging with the Advertisement, you will earn Reward Points. For example, if you watch a video advertisement, or download an App you will earn Reward Points. Each time you earn Reward Points, we place the Reward Points in your Fronto Account. You can redeem your Reward Points as provided in Section 2.2. Some of the Advertisements may be subject to additional terms and you agree to abide by those terms. The determination of what Advertisements you see, whether you have earned any Reward Points and what products and services you may receive by redeeming your Reward Points will be made entirely by us – and we do not guarantee that you will receive any Advertisements or Reward Points.
2.2 Redeeming Reward Points
When your Fronto Account has accumulated Reward Points, you can go to the Fronto’s Redeem menu within the Services and redeem the Reward Points. While we reserve the right to modify the way that you can redeem Reward Points, as of the Effective Date of this Agreement, you can redeem your Reward Points by going to the part of the Services called the Redeem (the “Redeem”). At the Redeem, you can purchase a gift card with one of our gift card partners, pay your bills with participating merchants, exchange your Reward Points to Paypal cash, or make a distribution to one of our partner charities listed within the Redeem. The Reward Points remain the property of Fronto, not you, at all times prior to the time that you successfully redeem your Reward Points through the Services. We may elect to invalidate any Reward Points at our discretion and if we do so, you will no longer be able to redeem them. Please note that the term “P” used in this Agreement (other than in Section 10) refer to units of Reward Points and not to any actual currency or legal tender.
2.3 Closing Your Account
If you elect to close your Fronto Account, or if we terminate your Fronto Account because you breach Fronto’s Advertising & Use Terms, we may elect to invalidate those Reward Points and you will no longer be able to redeem your remaining Reward Points.
Fronto complies with all tax reporting requirements. If the money distributed from your Fronto Account exceeds applicable reporting requirements, we will report the distributions as income to the appropriate taxing authorities. You will be solely responsible for any and all tax liability arising out of your receipt of money from your Fronto Account.
2.5 Inactivity; Escheat Laws
We value your continued participation in our Service. If, however, your Fronto Account is inactive for an extended period of time, we may be required to remit the value of the Reward Points in your Fronto Account to the state which you reported to us as the state you last resided in. If we remit funds as required by law, you will need to contact the state, and not us, to obtain the balance of money in your Fronto Account.
2.6 Expiration of Reward Points
Reward Points are not your personal property, and are not descendible, may not be inherited, bartered or sold to any third party, and may not be transferred. Your earned Reward Points shall expire on the earlier of: (a) the date one (1) year from when you earned the Reward Points; or (b) when your Fronto user account is deleted or terminated. Reward Points that are undeliverable for any reasons, including because your user account or PayPal account information is incorrect, are forfeited, and the Reward Points will not be refunded to you.
3. INTELLECTUAL PROPERTY – SUSPENSION
Subject to the terms of this Agreement, Fronto grants you a nontransferable, non-exclusive, license to use the Services for your personal, noncommercial use.
3.2 Certain Restrictions
We reserve the right to restrict access to the Services in any way, including the right to limit the number and type of Advertisements that are delivered to you through the Services. In addition, the rights granted to you in this Agreement are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you will not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you will not access the Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content may not be removed, obscured or modified.
Fronto reserves the right, at any time, (temporarily or permanently) to modify, suspend, or discontinue the Services or any part thereof with or without notice. This includes (but is not limited to) the right to change the value of any Reward Points or the manner in which Reward Points may be redeemed. You agree that Fronto will not be liable to you or to any third party for any modification, suspension, or discontinuance of Services or any part thereof.
3.4 No Support or Maintenance
You acknowledge and agree that Fronto will have no obligation to provide you with any support or maintenance in connection with the Services.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services are owned by Fronto or Fronto’s licensors. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Fronto and its suppliers reserve all rights not granted in this Agreement.
4. USER CONTENT
4.1 User Content
“User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Fronto. Because you alone are responsible for your User Content (and not Fronto), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Fronto is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Fronto an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site, the App, and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Acceptable Use Policy
The following sets forth Fronto’s “Acceptable Use Policy”: You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party. In addition, you agree not to use the Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Services; or (vi) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site 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).
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Fronto Account in accordance with Section 11, and/or reporting you to law enforcement authorities.
If you provide Fronto any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Fronto all rights in the Feedback and agree that Fronto will have the right to use such Feedback and related information in any manner it deems appropriate. Fronto will treat any Feedback you provide to Fronto as non-confidential and non-proprietary. You agree that you will not submit to Fronto any information or ideas that you consider to be confidential or proprietary.
5. COMPLIANCE WITH APPLICABLE LAW
You agree that it is your responsibility to determine any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding and other taxes and/or duties assessed, incurred or required to be collected, paid or withheld for any reason in connection with your use of Fronto or any Reward Points, or otherwise in connection with any action, inaction or omission by you (“Taxes”) and to collect, withhold, report, and remit correct taxes to the appropriate tax authority, and to otherwise be responsible for the collection and payment of any and all Taxes. You agree that we are not responsible to collect, report, or remit any taxes arising from or related to any Reward Points or your use of Fronto. You may not use Fronto or the Site for any purpose or in any manner that violates any applicable law or governmental regulation. You agree to comply with all applicable laws, statutes, and regulations. We may disclose in any form, including in electronic form, any information that is required by law to be disclosed regarding Fronto or its use.
You agree to pay all fees or charges to your Fronto Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. As part of the Services, through Fronto, you may be able to purchase goods or make charitable donations. When doing so, you may be required to provide us with valid information about your PayPal account (“Payment Provider”). Your Payment Provider agreement governs your use of the PayPal account, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing us with your PayPal account and associated payment information, you agree that we are authorized to immediately invoice your Fronto Account for all fees and charges due and payable to us hereunder and that no additional notice or consent is required. You agree to immediately notify us of any change in your PayPal account information used for payment hereunder. We reserve the right at any time to change our prices and billing methods upon notice.
You agree to indemnify and hold Fronto (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your User Content, (c) your violation of this Agreement, or (d) your violation of applicable laws or regulations. Fronto reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Fronto. Fronto will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. ADS AND THIRD PARTY SITES; OTHER USERS
8.1 Third Party Sites & Ads
The Services, including the App, may contain Advertisements and contain links to third party websites and services (collectively, “Advertisements and Third Party Sites”). Such Advertisements and Third Party Sites are not under the control of Fronto and Fronto is not responsible for any Advertisements, Third Party Sites or any products or services promoted in or on the Advertisements and Third Party Sites. Fronto provides these Advertisements and access to Third Party Sites only as a convenience and does not warrant or make any representations with respect to the Advertisements and Third Party Sites. You use all the Advertisements and Third Party Sites, and the products and services promoted in or on the Advertisements and Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Advertisements and Third Party Sites.
8.2 Other Users
Other Users. Each user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other service providers are solely between you and such user. You agree that Fronto will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users or Ads and Third Party Sites.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8.4 Association between Android advertisement ID (AID) and other identifiers
Fronto uses persistent identifiers that collected in the registration process in order to manage usage of rewards, redeem of rewards and fraud detection. Fronto associates your AID with other identifiers for better reward earning and campaign experience.
9. DISCLAIMERS OF WARRANTIES
Fronto, the Site, and all Reward Points are provided “as is,” “with all faults,” on an “as available” basis, and without any representations, warranties, or conditions of any kind, express or implied. To the fullest extent permitted by applicable law, NBT America, and its affiliates, and their respective, members, shareholders, managers, directors, officers and employees, and other representatives (collectively, “NBT America Parties”) expressly disclaim all representations, warranties, conditions, endorsements, and undertakings of any kind, express or implied, including without limitation the implied warranties of merchantability, title, custom, fitness for a particular purpose, satisfactory quality, non-infringement, security, system integration, and accuracy. Without limiting the foregoing NBT America does not warrant that: (a) the Site or Fronto (or the server that makes it available) will be secure, uninterrupted, timely, or error-free (or that defects will be corrected), free of viruses or other technologies that can damage you or your property; (b) the technological infrastructure of the Site or Fronto (or the server that makes it available) does not infringe on the proprietary rights of others; (c) the quality of any products, services, information or other material obtained by you through Fronto or the Site will meet your expectations; or (d) there is or should be any implied warranty arising from course of dealing or usage of Fronto or the Site.
You acknowledge that you are responsible for obtaining and maintaining all mobile device hardware, software, and access needed to access and use Fronto, and for paying all related charges. No opinion, advice, or statement of the NBT America Parties, or any of them, whether made on Fronto or the Site or otherwise, will create any warranty not expressly stated in this agreement. You acknowledge that your use of Fronto and/or the Site is entirely at your own risk, and you will be solely responsible for, and hereby waive, any and all claims and causes of action with respect to any damage to your mobile device hardware or any other device, software, computer system, internet access, or loss of data that results from downloading or otherwise obtaining information through the use of Fronto or the Site. NBT America shall not be responsible for acts or omissions by any party, including but not limited to any party who might hack, invade, or otherwise disrupt the site or take information, including content you provide. NBT America shall not be liable under any circumstances if Fronto or the Site is unavailable at any time or for any period of time. Access to Fronto or the Site may be suspended temporarily or indefinitely and without notice.
NBT America, and the NBT America Parties do not warrant that your use of Fronto or the Site is lawful in any particular jurisdiction and, in any event, the NBT America Parties specifically disclaim such warranties. By using Fronto you represent and warrant that your activities are lawful in the jurisdiction where you access or use Fronto. Applicable law may not allow the exclusion of implied or other warranties. In such jurisdictions, some or all of the foregoing disclaimer may not apply to you.
10. LIMITATION ON LIABILITY
In no event will the NBT America Parties be liable for any loss or damages of any kind, including without limitation, direct, indirect, incidental, special, consequential, economic, exemplary, punitive, or other damages (even if NBT America knows, should know, or has been advised of the possibility of such damages), regardless of the nature of the action, resulting from or arising out of, or directly or indirectly related to: (a) Fronto or the Site, or any aspect of Fronto or the Site; (b) your use or misuse of Fronto or the site, or from your inability to use, or the performance of Fronto or the Site; (c) the interruption, suspension, modification, alteration, or termination of Fronto or the site, and/or third-party websites, services, applications, or other content accessed through Fronto or the Site; (d) any action or inaction in connection with any investigation regarding your or any other party’s use of Fronto or the Site; (e) any error or omission in the operation of Fronto or the Site; or (f) any damage to your computer, mobile device hardware, software, or other equipment or technology. In no event will the NBT America parties be liable to you or to any other party for death or personal injury. Your sole and exclusive remedy against the NBT America Parties is to discontinue of your use of Fronto or the Site. These limitations shall apply to the fullest extent permitted by law. in some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some or all of the foregoing limitations may not apply to you.
You acknowledge that if you incur any damages, losses or injuries that arise out of the acts or omissions of the NBT America Parties, or any of them, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction of any kind, or any other equitable remedy, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of Fronto or the Site.
By registering a Fronto user account or downloading, installing, accessing, or using Fronto and/or the Site, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and hereby expressly waive, the benefits of section 1542 of the Civil Code Of California, and any similar law of any applicable jurisdiction, which provides as follows: “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.”
11. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Services. We may (a) suspend your rights to use the Services (including your Fronto Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your Fronto Account and right to access and use the Services will terminate immediately. You understand that any termination of your Fronto Account involves deletion of your User Content associated therewith from our live databases. Fronto will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Fronto Account or deletion of your User Content. As noted above, in the event of any termination of this Agreement, we may invalidate your Reward Points. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.2-3.5, 4 –10.
12. COPYRIGHT POLICY
Fronto respects the intellectual property of others and asks that users of our Site, our App, and Services do the same. In connection with our Site, App, and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site, our App, and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, our App, and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature; identification of the copyrighted work(s) that you claim to have been infringed; identification of the material on our services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such material; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Fronto is:
NBT America, Inc.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current email address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site, our App, or Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
13.2 Arbitration agreement and jury trial waiver, class action waiver, and forum selection clause
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and NBT America, Inc. or NBT America, Inc.’s employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and NBT America, Inc. must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR NBT America, Inc. MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, NBT America, Inc. will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) NBT America, Inc. also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing, either You or NBT America, Inc. may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in New Castle County, Delaware. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New Castle County, Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New Castle County, Delaware for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither You nor Fronto will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in New Castle County, Delaware.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
13.3 Choice of Law
The Agreement is made under and will be governed by and construed in accordance with 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.
13.4 Entire Agreement
This Agreement constitutes the entire agreement between you and us regarding the use of the Site, App, and Services. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Fronto is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Fronto’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees.
13.5 Copyright/Trademark Information
Copyright © 2015, NBT AMERICA, Inc. All rights reserved. All trademarks, logos and service marks (“Copyright © 2015, NBT AMERICA, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
13.6 Information or Complaints.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Services, please send an e-mail to the e-mail address listed below. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
NBT America, Inc
Address: 415 Jackson St. STE B, San Francisco, CA 94111