This Agreement (“Terms of Service”), together with the Order, the service level agreement agreed between NodeShift and Customer in respect of particular Cloud Services (“Service Level Agreement”), Privacy Policy, and Data Protection Addendum (collectively, the “Agreement”), set out the legal terms on which DWS Inc. d/b/a NodeShift (“NodeShift”) contracts with the individual or entity named on the Order (“Customer” and also, “you”) and apply to the executable code version of NodeShift software (the “Software”), and includes all related products, software, services, and websites, including nodeshift.com (the “Website”) (together with Set-up Services, Cloud Services, Support Services, and Additional Services, collectively, the “Services”) and constitute a legally binding agreement between NodeShift and you.
By Clicking the “Accept” button, or by installing or using the Services, you are consenting to be bound by this Agreement.
If you are entering into and accepting this Agreement on behalf of a business entity, you represent that you have the right, authority, and capacity to enter into and accept this Agreement on behalf of the relevant business entity. The terms “you” or “your” as used in this Agreement refer to the business entity and any individual, such as an employee or consultant of the business entity, that the business entity has authorized to use the Services (each an “Individual User”); provided, however, that each such individual user shall remain liable for any breaches of this Agreement and shall be required to comply with this Agreement regardless of the fact that the account is held in the name of the business user.
If you do not agree to this Agreement, do not click the “Accept” button and do not install or use any part of the Services.
SECTION 13 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN NODESHIFT AND YOU ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT IN THAT SECTION WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION, UNLESS YOU OPT OUT. IN ADDITION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT IN ANY CLASS OR REPRESENTATIVE 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. PLEASE SEE SECTION 13(IV) FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
- 1. NodeShift Services
- 1.1 The Customer may request Services at any point by entering into an electronic or physical order for the Services (each, an “Order”). Orders shall only be legally binding if and to the extent accepted by NodeShift. Each Order entered into by the Customer and NodeShift shall form part of the Agreement, and not a separate contract.
- 1.2 Subject to the provisions of the Agreement, NodeShift shall, in accordance with the relevant Order (including the timeframes and specifications specified therein):
- 1.2.1 perform the set-up services and deliverables specified in a relevant Order (“Set Up Services”);
- 1.2.2 facilitate access to, and use of, the computing infrastructure owned by the third-party provider of the Cloud Services (the “Third-Party Provider”) and as are more particularly specified in the Order (the “Cloud Services”);
- 1.2.3 provide the support services more fully described on NodeShift's website (the “Support Services”) and in accordance with the Service Level Agreement; and
- 1.2.4 perform Additional Services.
- 1.3 In accordance with clause 1.2, NodeShift hereby grants to Customer a non-exclusive, non-transferable, limited license to use the software-as-a-service platform known as 'NodeShift' (“NodeShift Platform”) to access the Cloud Services solely for Customer's internal business purposes.
- 1.4 NodeShift may provide NodeShift Services (or any part of them) through any of its affiliates.
- 1.5 For the performance of NodeShift Services, time shall not be of the essence.
- 2. Payment
- 2.1 Customer shall pay NodeShift the fees set out in the Order. Where the Order comprises NodeShift Services which are charged:
- 2.1.1 on a per-hourly basis (e.g. 'instant server' deployment), Customer must deposit sufficient funds with NodeShift in advance, if the funds expire then the customer will automatically be charged for 14 days upfront to reserve funds to continue maintaining the machine on an hourly basis. Access to such NodeShift Services will cease if Customer's account has insufficient funds and is unable to commit new funds to NodeShift either through auto-charge or manually refilling the balance.
- 2.1.2 on a subscription basis (e.g. 'dedicated server' orders), Customer authorizes NodeShift to charge to Customer's credit card (or other payment mechanism selected by it and approved by NodeShift), or invoice Customer for, all amounts due and owing for any Order, including taxes and any other fee or charge associated with Customer's use of NodeShift Services.
- 2.1.3 Unless stated to the contrary, the fees are exclusive of applicable taxes or other charges imposed by law from time-to-time, and Customer shall in addition pay such applicable taxes and other charges at the rate and in the manner prescribed by law from time-to-time.
- 2.2 NodeShift may change prices at any time, including changing from a free service to a paid service and charging for NodeShift Services that were previously offered free of charge; provided, however, that NodeShift will provide Customer with prior notice and an opportunity to close Customer's account if NodeShift changes the price of a Cloud Service or NodeShift Service to which Customer is subscribed and will not charge Customer for a previously free NodeShift Service unless Customer has been notified of the applicable fees and agreed to pay such fees. Any price changes or changes to Customer's subscription plan(s) will apply no earlier than at least thirty (30) days following notice to Customer.
- 2.3 Customer agrees that in the event NodeShift is unable to collect the fees owed to NodeShift, NodeShift may:
- 2.3.1 without prior notice suspend Customer's access to or use of NodeShift Services and Cloud Services. NodeShift shall be entitled to maintain the suspension until NodeShift is in receipt of the fees owed to NodeShift; and/or
- 2.3.2 take any other steps it deems necessary to collect such fees from Customer and that Customer will indemnify NodeShift for all costs and expenses incurred by NodeShift in connection with such collection activity, including collection fees, court costs and legal fees. Customer further agrees that NodeShift may collect interest at the lower of the highest rate which may be charged under applicable law and 10% per annum on any amounts not paid when due.
- 2.4 Customer is solely responsible for the accuracy and completeness of the payment method information provided to NodeShift when placing an Order.
- 2.5 NodeShift shall accept no liability for delays in supply of Cloud Services or loss suffered by Customer as a result of incorrect payment method information provided by Customer or delays in processing by the Customer's payment method provider or processor.
- 3. Renewals
- 3.1 Unless stated otherwise in an Order, or Customer cancels its subscription before renewal, subscriptions for NodeShift Services will renew automatically. Customer authorizes NodeShift to charge the fees for the next renewal term to Customer's previous payment method. NodeShift reserves the right in its sole discretion to prevent automatic renewal of any NodeShift Services.
- 3.2 Customer may cancel its auto-renewing Order at any time by going to app.nodeshift.com and following the instructions for cancellation or by emailing it@nodeshift.com. If Customer cancels:
- 3.2.1 NodeShift Services will continue until the end of the then current subscription term; and
- 3.2.2 Customer will not receive a refund for any NodeShift Services already paid for.
- 4. Customer obligations
- 4.1 Customer shall:
- 4.1.1 provide NodeShift with all information and assistance reasonably required by NodeShift to provide the Services;
- 4.1.2 comply with the latest version of the acceptable use policy available on NodeShift's website “Acceptable Use Policy”) and the latest version of the non-circumvention policy on the Website (“Non-Circumvention Policy”) (each of which may be amended, modified, restated, or otherwise supplemented at any time);
- 4.1.3 be responsible for any acts of unauthorized access to the Services where such access is gained by unauthorized use of a Customer's account, regardless of whether the activities are undertaken by Customer, its employees, any third party (including Customer’s contractors or agents), Customer’s end users, licensees, or customers;
- 4.1.4 inform NodeShift immediately on becoming aware of any unauthorized access to NodeShift Services via Customer's account and shall aid in any investigation or legal action that is taken by authorities and/or NodeShift to investigate and resolve the security incident or breach to the extent caused by the Customer's account and/or use of the Services;
- 4.1.5 shall comply with any law applicable to it in its access to, receipt of or use of the Services;
- 4.1.6 take full responsibility and accept all liability under all applicable laws in respect of the use it makes of the Cloud Services and the results it achieves from them, including complying with all applicable artificial intelligence regulations.
- 4.2 If Customer fails at any time to comply with clause 4.1 in any respect, NodeShift may without prior notice suspend Customer's access to or use of the Services and Cloud Services either completely or to the extent NodeShift in its sole discretion deems necessary to ensure a safe and secure manner of providing services to its customers in general. NodeShift shall be entitled to maintain the suspension until Customer is able to remedy its non-compliance with clause 4.1 and to demonstrate its future ability to comply with clause 4.1 to NodeShift's reasonable satisfaction.
- 4.3 Where Customer is a natural person, Customer confirms they:
- 4.3.1 Are 18 years of age or older; and
- 4.3.2 have the necessary and sufficient legal consent, permission and capacity to use the Services in applicable jurisdiction(s), as determined by Customer.
- 4.4 Customer is responsible for notifying its employees, agents, and others related to Customer’s usage of the provisions of the Agreement, including where the terms of the Agreement are binding on them.
- 4.5 Customer represents and warrants that it is not:
- 4.5.1 located in any country that is subject to the Office of Foreign Assets Control's trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine; or
- 4.5.2 an individual or entity included on any U.S. lists of prohibited parties including the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”).
- 4.6 Additionally, Customer agrees not to – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any Service received from NodeShift in contradiction with all applicable laws and regulations.
- 4.7 Customer must utilize proper security protocols, including, but not limited to, setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information.
- 4.8 Customer is solely responsible and liable for all activities that are affiliated or associated with its use of NodeShift Services, including without limitation:
- 4.8.1 any data processed by Customer arising from or related to the Services; and/or
- 4.8.2 any data displayed, disclosed, generated, and/or published arising from or related to Customer's use of the Services.
- 4.9 Customer shall ensure that the Cloud Services are properly configured for its purposes and shall take reasonable steps for securing and protecting all data, software, information (including Confidential Information) which, by Customer's actions, are hosted or processed on the Cloud Services (“Customer Data”). Customer shall ensure that its configuration of the Cloud Services contain appropriate and industry standard physical, administrative, and technical safeguards (including the use of firewalls, encryption and other tools) to protect against breach, disclosure or unauthorized access of Customer Data that is processed by Customer in connection with NodeShift Services, including without limitation any safeguards required by applicable data security and/or data privacy laws. Customer shall be responsible and liable for the activities of any individual or entity who gains access to Customer Data or NodeShift Services as a result of its failure to comply with the obligations of this clause.
- 4.10 Customer shall be responsible for ensuring that all third-party tools, content and otherwise components added by Customer to the Cloud Services ('Customer Content') shall conform with the terms of the Agreement. It is Customer's sole responsibility to ensure that Customer Content used by Customer is fit for Customer's purposes. Customer acknowledges and agrees that NodeShift is not responsible for any Customer Content processed by Customer, and that the use of Customer Content by Customer is at its sole and absolute risk. NodeShift may, at its sole discretion, prohibit the use of any Customer Content at any time. Customer acknowledges and agrees that with respect to third party content, NodeShift is not party to any transactions between Customer and the applicable third-party provider, and that in the event of a dispute between Customer and an applicable third-party provider, Customer irrevocably releases NodeShift from any and all direct, indirect, incidental, special, punitive, exemplary, regulatory, or consequential damages arising from or relates to such third-party content.
- 4.11 Customer shall indemnify NodeShift against all claims, losses, costs or incurred by NodeShift in consequence of any non-compliance by Customer with the provisions in this clause 4.
- 5. Warranties
- 5.1 Each of the parties represents and warrants to the other that it has full power and authority to enter into and perform its obligations under the Agreement.
- 5.2 NodeShift warrants to Customer that:
- 5.2.1 it will provide NodeShift Services using reasonable care and skill; and
- 5.2.2 the access to, receipt of and use of NodeShift Services will not infringe the intellectual property rights of any third party.
- 5.3 Other than as set out in the Agreement all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
- 6. Data protection
- 6.1 NodeShift processes the personal data of individual users of NodeShift Platform in order to, amongst other things, establish and verify accounts, facilitate access to NodeShift Services, and provide Support Services.
- 6.2 All personal data shall be processed by NodeShift in accordance with the Privacy Notice.
- 6.3 Customer acknowledges that NodeShift has no control over, or access to any Customer Data hosted on the Cloud Services. Customer Data hosted on the Cloud Services shall be processed in accordance with the Data Protection Addendum.
- 7. Intellectual property rights
- 7.1 NodeShift or its licensors shall retain ownership of all intellectual property rights in NodeShift Services and in any works and materials created by NodeShift (or anyone acting on its behalf) in the course of providing NodeShift Services.
- 7.2 Customer shall retain ownership of all intellectual property rights in Customer Data.
- 7.3 NodeShift may use any feedback and suggestions for improvement relating to NodeShift Services provided by Customer without charge or limitation.
- 7.4 Customer agrees that NodeShift may refer to Customer being a customer of NodeShift for marketing purposes, including by displaying Customer's company (or trading) name, logo and/or any other non-confidential company information ('Customer Details') on NodeShift's website or in any other promotional material that NodeShift may create from time to time, including but not limited to adverts and case studies ('Promotional Purposes'). Customer grants to NodeShift a perpetual non-exclusive license to use Customer Details for Promotional Purposes.
- 7.5 Customer shall indemnify, keep indemnified and hold harmless NodeShift and/or Third-Party Provider from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by NodeShift or by Third-Party Provider as a result of or in connection with any action, demand or claim that the transmission, receipt, copying, installation, use, possession or other utilization of Customer Data or Customer Details infringes the intellectual property rights of any third party.
- 8. Confidentiality
- 8.1 Each party agrees that it may use the other party's confidential information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other's business, finance or technology, know-how, intellectual property rights, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organization associated with that party (“Confidential Information”) only in the exercise of its rights and performance of its obligations under the Agreement and that it shall not disclose the other party's Confidential Information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 8.
- 8.2 Each party may disclose the other party's Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party's Confidential Information in order to exercise the disclosing party's rights or perform its obligations under the Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 8 as if it were a party.
- 8.3 Each party may disclose any Confidential Information relating to the other party required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
- 8.4 Customer shall indemnify NodeShift against any losses, damages, liability, costs (including legal fees) and expenses which NodeShift may incur or suffer as a result of or arising from any breach of Customer's obligations under this clause 8.
- 9. Exclusions
- 9.1 NodeShift does not itself own the Cloud Services or the underlying computing infrastructure and, to the fullest extent permitted by law, does not accept (subject to the provisions of the Service Level Agreement) any responsibility or liability for the Cloud Services. NodeShift shall also not be responsible or liable for any of the following matters (which are the sole responsibility of Customer):
- 9.1.1 the inputting and maintenance of Customer Data and, except as otherwise expressly agreed by the parties, its security;
- 9.1.2 the accuracy, quality, integrity and legality of Customer Data and that its use (including use in connection with the Cloud Services) complies with all applicable laws and does not infringe Third-Party Provider's or any third party's intellectual property rights;
- 9.1.3 delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities, including power cuts, power surges, or other interruptions in power supply, or malfunction of equipment;
- 9.1.4 uses of the Cloud Service in a manner which infringe a third party's legal rights or breaches any applicable law;
- 9.1.5 back-ups of Customer Data or any other data; and
- 9.1.6 extracting, transferring or recovering any data (including any Customer Data) or providing any assistance with any such activities.
- 9.2 Customer accepts full responsibility for ensuring the Cloud Services selected by the Customer in the Order will meet the Customer's requirements.
- 9.3 NodeShift cannot guarantee that NodeShift Services or the Cloud Services will meet Customer's specific requirements or that the Cloud Services are or will be interoperable with or capable of working in conjunction with any other software or hardware, for which Customer takes full responsibility.
- 9.4 Customer shall be solely responsible for compliance with all laws applicable in its access to, receipt of and use made of NodeShift Services and the Cloud Services.
- 9.5 NodeShift:
- 9.5.1 does not promise that NodeShift Services shall be uninterrupted or error free;
- 9.5.2 does not, unless otherwise agreed, promise that NodeShift Services are compatible with third party software or equipment; and
- 9.5.3 shall not be liable, nor be required to fix, any problem, defect or error caused by any equipment or third party software used in connection with NodeShift Services.
- 9.6 To the maximum extent permitted by applicable law, Customer accepts that NodeShift Services and Cloud Services are (subject to the provisions of the Service Level Agreement) provided on an 'as is' basis, without warranty of any kind, either express or implied.
- 9.7 NodeShift shall use reasonable endeavors to notify Customer in advance of scheduled maintenance but Customer acknowledges that:
- 9.7.1 NodeShift may itself receive little or no notice of such maintenance; and
- 9.7.2 it may receive no advance notification for downtime caused by an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under any agreement between Customer and NodeShift (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet (“Force Majeure”) or for other emergency maintenance.
- 10. Liabilities
- 10.1 Notwithstanding any provision in the Agreement, neither party excludes or limits any liability for:
- 10.1.1 personal injury or death to the extent that results from the negligence of a party or any person for whom it is responsible at law;
- 10.1.2 fraud or fraudulent misrepresentation; or
- 10.1.3 any other liability to the extent the same cannot be excluded or limited by law.
- 10.2 Subject to clause 10.1, NodeShift shall not be liable to Customer in respect of:
- 10.2.2 the matters described in clause 9; or
- 10.2.2 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), of whatever nature and whether based on contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Agreement or any activities related to the Agreement.
- 10.3 Subject to clauses 10.1 and 10.2, NodeShift's maximum aggregate liability to Customer for all and any claims of whatever nature and whether based on contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Agreement or any activities related to the Agreement shall be limited to a sum equal to the fees paid by Customer to NodeShift under or in connection with the Agreement.
- 11. Termination
- 11.1 NodeShift may terminate the Agreement immediately and deactivate Customer's account if Customer commits a material or persistent breach of the Agreement, or where the provision of NodeShift Services become unlawful. NodeShift will use reasonable endeavors to provide Customer with notice in advance; however, Customer acknowledges that this may not be possible in all circumstances.
- 11.2 Customer may terminate the Agreement immediately if NodeShift commits a material breach.
- 11.3 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if a receiver or similar officer is appointed for the other party or its property; the other party makes a general assignment for the benefit of its creditors; the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law; the other party becomes insolvent or is liquidating, dissolving or ceasing business operations (or any equivalent or similar action is taken in another jurisdiction).
- 11.4 Upon termination:
- 11.4.1 all rights granted to Customer under the Agreement shall immediately terminate (including, for the avoidance of doubt, any rights granted to Customers to access the Cloud Services); and
- 11.4.1 Customer must cease all activities authorized by the Agreement.
- 12. Other Important Terms
- 12.1 Customer can review the Agreement at any time on NodeShift's website. NodeShift reserves the right to change the Agreement at any time by posting updates to its website. If NodeShift makes any changes, or if it is required to do so by law, NodeShift will notify Customer of such change in advance to the email address associated with Customer's account, provided Customer has been active in the month prior to NodeShift making such change, and such changes shall take effect seven (7) days after notification. If Customer does not agree with the changes, it may terminate the Agreement by providing NodeShift with notice within such seven (7) day period, otherwise Customer will be deemed to have accepted the changes.
- 12.2 Customer can contact NodeShift at any time by emailing contact@nodeshift.com.
- 12.3 Customer may not assign, transfer, sublicense or deal in any other manner with any or all of their rights or obligations under the Agreement, without NodeShift's prior written consent. NodeShift reserve the right to transfer, assign, sub-contract or deal in any other manner with any or all of NodeShift's rights or obligations under the Agreement, without notifying Customer or receiving their consent.
- 12.4 Except in relation to any indemnity given in favor of the Third-Party Provider, the Agreement does not give rise to any rights for a third party to enforce any term of the Agreement.
- 12.5 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under the Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
- 12.6 The Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA.
- 12.7 In the event of any conflict in respect of the provisions of the Agreement, the following order of priority shall prevail (in descending order of priority): (i) these Terms of Service; (ii) the Order; (ii) the Data Protection Addendum; and (iii) the latest version of the acceptable use and privacy policy available on the Website.
- 12.9 Any obligation of NodeShift under the Agreement to comply or ensure compliance with any law shall be limited to compliance only with laws where NodeShift is established.
- 12.10 If a Customer Affiliate enters into an Order:
- 12.10.1 all references to the "Customer" in this Agreement or in the Order shall refer to the Customer affiliates;
- 12.10.2 the Customer affiliate shall be deemed to have entered into a separate agreement with NodeShift under the same terms as this Agreement, which shall apply mutatis mutandis; and
- 12.10.3 the contract between NodeShift and the Customer affiliate shall be enforceable by NodeShift and the Customer affiliate only, and NodeShift will have no liability towards the Customer in respect of such Order.
- 13. Arbitration
- 13.1 NodeShift and Customer agree that any dispute that has arisen or may arise between us relating in any way to the Customer’s use of or access to the Services, any validity, interpretation, breach, enforcement, or termination of this Agreement, or otherwise relating to NodeShift in any way (collectively, “Covered Dispute Matters”) will be resolved in accordance with the provisions set forth in this Section 13.1.
- 13.1.1 You and NodeShift agree that United States federal law including the Federal Arbitration Act, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of Delaware, without regard to conflict of laws principles, will govern all disputes.
- 13.1.2 You and NodeShift agree that this Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act applies in all cases and governs the interpretation and enforcement of the arbitration rules and arbitration proceedings. Any dispute must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). You and NodeShift agree that the arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. You and NodeShift agree that the arbitrator, and not any federal, international, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable or a particular claim is subject to arbitration. You and NodeShift agree that judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- 13.2 You and NodeShift agree that for matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. You and NodeShift agree that the arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- 13.3 Except as provided below, the arbitrator shall determine all issues of liability on the merits of any claim asserted by you or NodeShift and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or NodeShift have sought public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration after the party seeking public injunctive relief has first prevailed in arbitration. The parties agree that the litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- 13.4 There are only two exceptions to this agreement to arbitrate: (i) if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief in any court of competent jurisdiction and (ii) each party will retain the right to seek relief in a small claims court for disputes or claims within the scope of the jurisdiction of such courts.
- 13.5 You and NodeShift agree that payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this agreement to arbitrate.
- 13.6 Unless you and NodeShift agree otherwise and except as described above, in the event that the agreement to arbitrate above is found not to apply to You or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order, or because you are an international user to which this agreement to arbitrate does not apply, you agree (except as otherwise provided by law) that any claim or dispute that has arisen or may arise between you and NodeShift must be resolved exclusively by a state or federal court located in the Dover County, Delaware. You and NodeShift agree to submit to the exclusive personal jurisdiction of the courts located within the Dover County, Delaware for the purpose of litigating all such claims or disputes.
- 13.7 OPT-OUT OF ARBITRATION. IF YOU ARE A NEW PPL CUSTOMER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO contact@nodeshift.com (“OPT-OUT NOTICE”) OR REGULAR MAIL TO: DWS INC. 8 The Grn, ste R, Dover, DE, USA, 19901. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THE TERMS OF THIS AGREEMENT FOR THE FIRST TIME. IF YOU ARE NOT A NEW PPL CUSTOMER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THIS AGREEMENT TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
- 13.8 If you opt out of the agreement to arbitrate, all other parts of this Agreement and this Arbitration will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with NodeShift.
- 13.9 WAIVER OF CERTAIN RIGHTS. BY AGREEING TO THIS AGREEMENT, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE (i) TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE), (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES, EVEN IF ARBITRATION IS NOT REQUIRED UNDER THIS AGREEMENT, AND (iii) TO A TRIAL BY JURY.
- 13.10 STATUTE OF LIMITATIONS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.
