NORTHONE’S TERMS OF SERVICE
LAST UPDATED DATE: March 19, 2019
NorthOne Inc., a Delaware corporation (“NorthOne”, “we” or “us”), operates a service accessible through an mobile application titled “NorthOne”, (the “App” and the service made available via the App, the “Service”) that enables end-users to access certain financial products and banking services made available by Radius Bank, a federal savings bank (the “Bank”).
These Terms of Service (collectively, “Terms of Service”) set forth the terms and conditions under which you may access and use the Service.
BY ACCESSING, REGISTERING WITH, USING THE SERVICES OF NORTHONE OR DOWNLOADING THE APP, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE (WITHOUT MODIFICATION), YOU ARE NOT AUTHORIZED TO ACCESS, REGISTER WITH OR USE THE SERVICES. ALL USERS OF THE SERVICES OFFERED BY NORTHONE THROUGH THE NORTHONE APPLICATION MUST BE EIGHTEEN (18) YEARS OF AGE OR OLDER TO ACCESS SUCH SERVICES.
PLEASE BE AWARE THAT SECTION 12 OF THIS AGREEMENT, 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 THIS AGREEMENT. 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.
NorthOne reserves the right to modify or change these Terms of Service at any time without prior notice to you. If NorthOne modifies or changes these Terms of Service, it will also revise the “Last Updated Date” at the top of the page. NorthOne may also send you an email address you provided, if any. It is your sole responsibility to ensure that you have provided us with the most up-to-date email address.
PLEASE NOTE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS OF SERVICE, THE SERVICE IS PROVIDED WITHOUT ANY WARRANTIES AND SUBJECT TO LIMITATIONS ON NORTHONE’S LIABILITY.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental
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Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms”.
1. THE SERVICE
1.1 General. NorthOne’s Services act as a portal that enables end users to access certain financial products, such as business checking accounts, mobile check deposit and BillPay features, and other banking services made available by the Bank. Our App acts as an interface between you and the Bank. NorthOne IS NOT a bank, regulated or otherwise, and DOES NOT provide, sponsor, manage, maintain, offer, support or otherwise made available any financial products or banking services made available via the Services, as all such financial products are made available solely by, and are the sole responsibility of, the Bank. Rather, NorthOne merely acts as a interface to enable end users to access the products and services of the Bank. NorthOne IS NOT a licensed money transmitter and does not hold, transfer or store any funds you may have.
1.3 Disclaimer. THE SERVICE ACTS AS A VENUE ONLY THROUGH WHICH, END USERS MAY ACCESS CERTAIN FINANCIAL PRODUCTS AND BANKING SERVICES MADE AVAILABLE BY THE BANK. WE URGE ALL USERS TO BE RESPONSIBLE ABOUT THEIR USE OF THE SERVICE AND ANY TRANSACTION ENTERED INTO WITH A BANK. YOU UNDERSTAND THAT NORTHONE IS NOT A BANK OR A LICENSED MONEY TRANSMITTER. NORTHONE DOES NOT AND CANNOT PROVIDE OR CONTROL ANY FINANCIAL OR BANKING PRODUCTS OR SERVICES, AND SUCH PRODUCTS AND SERVICES ARE THE SOLE RESPONSIBILITY OF THE BANK WITH WHOM YOU TRANSACT.
2. GENERAL USE AND RESTRICTIONS
2.1 Use of Service. You agree not to access and/or use the Services for any purpose
that is not expressly permitted by these Terms or is otherwise unlawful.
2.2 Registration. In order to access certain features of Services you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the App (“Account”). If you provide any information to us, you agree to provide only true, accurate, current and complete information, and you will keep such information true, accurate, current and complete. 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 App by minors. You may not share your Account or password with anyone, and you agree to (1) notify NorthOne immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or
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incomplete, or NorthOne has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, NorthOne has the right to suspend or terminate your Account and refuse any and all current or future use of App and Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
2.3 Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit App or Services (“NorthOne Properties”) or any portion of NorthOne Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other NorthOne Properties (including images, text, page layout or form) of NorthOne; (c) you shall not use any metatags or other “hidden text” using NorthOne’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 NorthOne Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not access NorthOne Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of NorthOne Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in NorthOne Properties. Any future release, update or other addition to NorthOne Properties shall be subject to the Terms. NorthOne, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of NorthOne Properties terminates the licenses granted by NorthOne pursuant to the Terms.
3. FEES AND PAYMENT 3.1 NorthOne Fees.
(a) Payments. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide NorthOne with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing NorthOne with your credit card number and associated payment information, you agree that NorthOne is authorized to immediately invoice your Account for all fees and charges due and payable to NorthOne hereunder and that no additional notice or consent is required. You agree to immediately notify NorthOne of any change in your billing address or the credit card used for payment hereunder. NorthOne reserves the right at any time to change its prices and billing methods, either immediately upon posting on NorthOne Properties or by e-mail delivery to you
(b) Taxes. NorthOne’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to NorthOne, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify NorthOne for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that
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you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that NorthOne is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax
3.2 Bank Fees. You are solely responsible for any and all fees, penalties, costs, expenses and other amounts due in connection with your account with the Bank, and will indemnify, defend and hold NorthOne harmless from any and all such fees, penalties, costs, expenses and amounts. In the event you have any dispute regarding such amounts, please contact the Bank at:[email protected].
4. USER CONDUCT. In connection with your use of NorthOne Properties, you shall not:
4.1 Display, transmit, distribute, post or otherwise make available (collectively, “Make Available”) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through NorthOne Properties (“Content”) that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
- 4.2 Harm minors in any way;
- 4.3 Impersonate any person or entity, including, but not limited to, NorthOne
personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4.4 Make available any Content that 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);
4.5 Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
4.6 Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
4.7 Register for more than one Account or register for an Account on behalf of an individual other than yourself;
- 4.8 Stalk or otherwise harass any other user of our NorthOne Properties; or
- 4.9 Advocate, encourage or assist any third party in doing any of the foregoing
activities in this section.
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Please note that your use of the Services may be subject to additional restrictions as set forth in Radius Bank’s applicable terms and conditions, agreements and policies available at https://radiusbank.com/legal. You are solely responsible for reading and understanding such restrictions.
5.1 Violations. If NorthOne becomes aware of any possible violations by you of the Terms, NorthOne reserves the right to investigate such violations. If, as a result of the investigation, NorthOne believes that criminal activity has occurred, NorthOne reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. NorthOne is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in NorthOne Properties in NorthOne’s possession in connection with your use of NorthOne Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of NorthOne, its users or the public, and all enforcement or other government officials, as NorthOne in its sole discretion believes to be necessary or appropriate.
5.2 Breach. In the event that NorthOne determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for NorthOne Properties, NorthOne reserves the right to:
a. Warn you via e-mail (to any e-mail address you have provided to NorthOne) that you have violated the Terms;
b. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
c. Pursue any other action which NorthOne deems to be appropriate. 6. TERM AND TERMINATION
- Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use NorthOne Properties, unless terminated earlier in accordance with the Terms.
- Prior Use. Notwithstanding the foregoing, if you used NorthOne Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used NorthOne Properties (whichever is earlier) and will remain in full force and effect while you use NorthOne Properties, unless earlier terminated in accordance with the Terms.
- Termination of Services by NorthOne. NorthOne may terminate these Terms at any time and for any reason, with or without notice, including if you have materially breached any provision of the Terms, if NorthOne is required to do so by law (e.g., where the provision of the the App, or the Services is, or becomes, unlawful), or if NorthOne otherwise determines such termination or suspension is appropriate (in NorthOne’s sole discretion) NorthOne has the right to, immediately and without notice,
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suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in NorthOne’s sole discretion and that NorthOne shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by NorthOne, you may do so by (a) notifying NorthOne at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to NorthOne's address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Content associated therewith from our live databases. NorthOne will not have any liability whatsoever to you for any suspension or termination, including for deletion of such Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with or ability to access NorthOne Properties, then you agree that you shall not attempt to re-register with or access the NorthOne Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, NorthOne reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- NorthOne Properties. Except with respect to any Content you Make Available (“Your Content”), you agree that NorthOne and its suppliers own all rights, title, and interest in NorthOne Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the NorthOne Properties.
- Your Content. NorthOne does not claim ownership of Your Content. However, when you post or publish Your Content on or in NorthOne 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.
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3. License to Your Content. Subject to any applicable account settings that you select, you grant NorthOne a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing NorthOne Properties. 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 NorthOne, are responsible for all of Your Content that you Make Available on or in NorthOne Properties.
4. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to NorthOne through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that NorthOne 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 NorthOne 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 NorthOne Properties
8. INDEMNIFICATION. You hereby agree to indemnify and hold harmless NorthOne, the Bank and each of our affiliates, officers, members, managers, directors, employees, equity holders, information providers, suppliers, licensors and licensees, and their respective successors and assigns (“Covered Persons”) from and against any and all losses, damages, liabilities, deficiencies, judgments, interest, awards, fines, costs or expenses of whatever kind, including, without limitation, amounts paid in settlement and reasonable attorneys’ fees incurred by any Covered Person in connection with any claim, action, arbitration, litigation, subpoena or investigation of any nature (whether at law or in equity) arising out or caused by (a) your access and/or use of the NorthOne Application or Services, (b) any claim that Your Content misappropriates, infringes or otherwise violates any third party's rights, including privacy or intellectual property right of any third party, and/or (c) any breach, or alleged breach, of any of these Terms by you.
9. DISCLAIMER OF WARRANTIES. You expressly acknowledge and agree that your use of the Service is at your sole risk. The Service is provided on an "AS IS", "WITH ALL FAULTS", and "AS AVAILABLE" basis. NorthOne uses commercially reasonable industry standard measures designed to prevent any unauthorized access to and use of your data. However, no form of online security is 100% secure. As such, NorthOne makes no representation that the Service will be secure. In addition, NorthOne makes no representations or warranties relating to the Service including, without limitation, representations or warranties that (a) the Service shall meet your requirements, (b) the operation of the Service will be uninterrupted or error free, or (c) any defects in the Service will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND NORTHONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
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STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT NORTHONE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NORTHONE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY COVERED PERSON BE LIABLE FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM ANY USER’S USE OF OR PARTICIPATION IN THE SERVICES, OR (B) INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THESE TERMS OF SERVICE AND/OR THE SERVICE, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF SUCH COVERED PERSON IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE A REASONABLY FORESEEABLE CONSEQUENCE OF A BREACH OF THIS AGREEMENT OR A TORT THAT FALLS WITHIN THE SCOPE OF THIS AGREEMENT. IN NO EVENT SHALL ANY COVERED PERSON’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE OR THE SERVICE, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. MODIFICATIONS TO THE SERVICE. NorthOne may modify the use of all or any portion of the Services at any time for any reason (or for no reason) and without notice or liability. NorthOne suspend, discontinue and/or restrict the use of all or any portion of the Services at any time for any reason (or for no reason) without liability upon thirty (30) days’ notice by emailing registered users.
12. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with NorthOne and limits the manner in which you can seek relief from us.
1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Service, or to any aspect of your relationship with NorthOne, 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 NorthOne may seek equitable relief in court for infringement or other misuse of
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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 Terms of Service or any prior version of this Terms of Service.
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 us at NorthOne, Inc., 325 Front Street West, Suite 4, OneEleven (NorthOne), Toronto, Ontario, M5V 2Y1, Canada. 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, NorthOne will pay them for you. In addition, NorthOne 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.
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 NorthOne. 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 Terms of Service (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.
4. Waiver of Jury Trial. YOU AND NORTHONE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND
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HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and NorthOne are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Terms of Service 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.
- 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 ARBITRA TED OR CONSOLIDA TED 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, than then claim must be severed from the arbitration and brought into the courts located in Wilmington, Delaware. All other claims shall be arbitrated.
- 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 the following address: [email protected] within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your NorthOne username (if any), the email address you used to set up your NorthOne 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 Terms of Service 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.
- Severability. Except as provided in subsection 12.5, 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.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with NorthOne.
- Modification. Notwithstanding any provision in this Terms of Service to the contrary, we agree that if NorthOne 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 NorthOne at the following address: [email protected].
13. GENERAL PROVISIONS
1. Electronic Communications. The communications between you and NorthOne use
electronic means, whether you visit NorthOne Properties or send NorthOne e-mails, or
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whether NorthOne posts notices on NorthOne Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from NorthOne in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that NorthOne 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.
- Release. You hereby release Covered Persons 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 NorthOne Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of NorthOne Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “ . 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 Covered Person or for such person’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the any Services provided hereunder.
- Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without NorthOne’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. NorthOne 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.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to NorthOne Properties, please contact us at: [email protected]. 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.
- Limitation Period. YOU AND NORTHONE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, NORTHONE PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
A general release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her
settlement with the debtor or released party
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- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and NorthOne agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the courts located in Wilmington, Delaware.
- 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 THEAPPLICATIONOFTHELAWOFANOTHERJURISDICTION. THEUNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
- Notice. Where NorthOne requires that you provide an e-mail address, you are responsible for providing NorthOne with your most current e-mail address. In the event that the last e-mail address you provided to NorthOne is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, NorthOne’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to NorthOne at the following address: [email protected]. Such notice shall be deemed given when received by NorthOne by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11. 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.
12. App Store Terms. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and NorthOne and not with the App Store. NorthOne, not the App Store, is solely responsible for NorthOne Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with NorthOne Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using NorthOne Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
NORTHONE TERMS OF SERVICE
13. 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.
14. Entire Agreement. The Terms are 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.
14. HOW TO CONTACT US. If you have any questions or comments about these Terms of Service or this Site, please contact us at: [email protected]