NIMA Partners, LLC. Terms and Conditions of Use Last updated: 02 Sep 21
NIMA Partners, LLC. Terms and Conditions of Use
NIMA Partners, LLC (“NIMA“) welcomes you and wishes to inform you of our policies and practices regarding your use and access of our services via our website located at www.NIMApartners.com or through a platform such as iTunes or Google, or one of our partners, or via our products or services.
Specifically, these Terms and Conditions (“Terms”) apply to visitors and users of (i) NIMA products that monitor their wellness (“Products”), (ii) the NIMA website (the “Website“), (iii) our App for your app-enabled mobile device (“App“), and (iv) any other features, content, or services offered from time to time by NIMA in connection with the Products, Website or App (collectively, the “Services“).
As a result, this Terms and Conditions Agreement (“Agreement“) sets forth the legally binding terms for your use of our Services. By using NIMA's Services, you agree to be bound by this Agreement, whether you are a “Visitor” (which means that you simply browse the Website or App) or you are a “Member” (which means that you have registered with NIMA and set up an Account). The term “User” refers to a Visitor or a Member. When using NIMA's Services, you also agree to be bound by Google’s Terms of Service.
BY USING THE WEBSITE OR APP AND THE SERVICES OFFERED ON THE WEBSITE AND APP, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS AND THE NIMA PRIVACY POLICY AND WARRANTY WHICH ARE HEREBY INCORPORATED BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS AND THE PRIVACY POLICY AND WARRANTY, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR APP AND THE SERVICES OFFERED.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH NIMA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
You represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent.
-
Additional Terms. In order to participate in or receive certain Services, you may be required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate or that you choose to receive, those additional terms are hereby incorporated into this Agreement. To the extent there is a conflict between the terms in this Agreement and the terms and conditions posted for a specific area of the Website or App or in connection with a Service, the latter shall have precedence with respect to your use of that area of the Website, App or Service.
-
Amendments. NIMA may modify this Agreement from time to time and such modification shall be effective: (1) for Users who first use the Services after the posting, upon posting by NIMA on the Website, (2) for existing Users, thirty (30) days after posting by NIMA on the Website, or (3) for existing Members, if the modifications to the Agreement are material, thirty (30) days after NIMA sent an e-mail containing a notification of such modifications and the continued use of the Services by the Member thereafter, which shall constitute the Member’s acceptance of the amended Agreement. If you do not agree to the modification, you must cease your use of NIMA's Services.
-
Eligibility. By using our Services, you represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are thirteen (13) years of age or older; and (d) your use of the Services does not violate any applicable law or regulation. Your NIMA Account (the “Account“) may be deleted without warning if we believe that you are younger than thirteen (13).
-
Copyright / Trademark Information. The content, trademarks, logos and designs (“Marks“) displayed on this website or any device, app, or other site are the property of NIMA. You are not permitted to use these Marks without our prior written consent. We reserve all legal rights herein. Copyright © 2021, property of NIMA Partners, LLC.
-
Terms of Service. For Members (those who have registered accounts with us), these Terms of Use shall remain in full force and effect while you use our products and services as a Member. You may delete your Account and end your membership at any time, for any reason. NIMA MAY TERMINATE YOUR MEMBERSHIP AT ANY TIME AND FOR ANY REASON, EFFECTIVE UPON SENDING NOTICE TO YOU AT THE THEN-CURRENT E-MAIL ADDRESS IN YOUR ACCOUNT PROFILE. Even after any termination, Sections 4-5 and 9-15 of this Terms of Use will remain in effect. You understand that termination of this Terms of Use and your Account involves deletion of your NIMA profile information from our live databases as well as any content, personal information, and services details that you uploaded to the NIMA Website or App using such Account. NIMA will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
-
Password. When you sign up to become a Member, you will be asked to choose a username and a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account, username, or password of another Member at any time. You agree to notify NIMA immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.
-
Conditions of Sale.
-
a. Fees and Charges. You agree to pay all fees and charges incurred in connection with your orders and purchases (including any taxes imposed on your orders and purchases, including, but not limited to, sales, use or value-added taxes, unless you provide NIMA with sufficient evidence that the order and purchase is made solely for the resale or redistribution of the product to your customers) at the rates in effect when the charges were incurred. NIMA may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required.
-
b. Geographic Areas. Currently, NIMA does not support international shipments for its Products, or provide Services outside of the United States.
-
c. Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement, or such dispute will be deemed waived. Billing disputes should be notified to the following address: info@nimapartners.com. If NIMA does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by NIMA or its agents.
-
d. Returns. All sales of other products are subject to NIMA's then-current return policies, as posted on the Website.
-
e. Eligibility; Credit Card Terms. To order any products, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction. You will be required to give us a valid credit card number (VISA, MasterCard, American Express or any other issuer then accepted by us) and associated payment information at the time you order, including all of the following: (i) your name as it appears on the card, (ii) the credit card type, (iii) the date of expiration of your credit card, (iv) billing address, and (v) any activation numbers or codes needed to charge your card. NIMA currently does not accept cash, checks or any other payment form, although in the future we may change this policy. You agree that no additional notice or consent is required before NIMA invoices the credit card for all amounts due and payable. By providing NIMA with your credit card number and associated payment information, you agree that NIMA is authorized to immediately invoice your account for all fees and charges due and payable to NIMA as a result of your purchase. You agree to immediately notify NIMA of any change in your billing address or the credit card used for payment hereunder. NIMA reserves the right, at any time, to change its prices and billing methods for products sold, either immediately upon posting on the Website or in the App, or by e-mail delivery to you.
-
f. Order acceptance policy. Your receipt of an electronic or other form of order confirmation does not signify NIMA's acceptance of your order, nor does it constitute confirmation of our offer to sell. NIMA reserves the right at any time after receipt of your order to accept or decline your order for any reason. NIMA further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by NIMA upon our delivery of the products that you have ordered. We may require additional verifications or information before accepting any order.
-
g. Title and Risk of Loss. Title and risk of loss to each shipment of the products sold on the Website shall pass to you upon transfer to the shipping agent.
-
Release. You hereby release NIMA, its officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with other Users. If you are a California resident, you hereby waive California Civil Code Section 1542, which states:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
-
Indemnity. You agree to defend, indemnify, and hold NIMA, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of these Terms of Use and/or arising from your breach of any provision of these Terms of Use.
-
Electronic communications. The communications between you and NIMA use electronic means, whether you visit the Website or App or otherwise use the Services or send NIMA e-mails, or whether NIMA posts notices on the Website or App or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from NIMA in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that NIMA 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.
-
U.S. Export Controls. Content and software available in connection with the Services (the “Software“) is further subject to United States export controls. No Content or Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. By downloading or using the content and Software, you represent and warrant that such download or use is not in violation of any such law. 13. Governing Law and Arbitration.
-
Governing Law. These Terms of Use shall be governed by the laws of the State of Washington without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and NIMA agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in Seattle, Washington (USA) and the federal courts located in the State of Washington (USA) in such legal action or proceeding.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please Read This Provision Carefully. It Affects Your Legal Rights.
Notwithstanding the foregoing, this Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and NIMA. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as NIMA's licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against NIMA in the same proceeding.
This Provision provides that all disputes between You and NIMA shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give NIMA an opportunity to resolve the Dispute which is first done by emailing to NIMA at info@nimapartners.com the following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If NIMA does not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, You or NIMA may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing NIMA at info@NIMApartners.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with NIMA. However, NIMA does have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or NIMA may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or NIMA may initiate arbitration in either California or the federal judicial district that includes Your billing address. In the event that You select the latter, NIMA may transfer the arbitration to California so long as NIMA agrees to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, NIMA will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with NIMA as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and NIMA specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and NIMA are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and NIMA might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
-
Relationship of Parties. You and we are independent contractors, and nothing in These Terms of Use will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You have no authority to make or accept any offers or representations on our behalf.
-
Notices. NIMA may give any notice required by these Terms of Use by means of a general notice on the Website, electronic mail to your e-mail address on record with NIMA, or by written communication sent by first class mail or pre-paid post to your address on record with NIMA. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to NIMA, addressed (such notice shall be deemed given when received by NIMA) at any time at the following:
Attn: Privacy & Terms Team
-
Force Majeure. NIMA will not be liable for non-performance or delay in performance (other than of obligations regarding payment of money) caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any “act of God.”
-
Other. These Terms of Use is accepted upon your use of the Website or App or any of the Services or when you register to become a Member. These Terms of Use, including the Warranty and Privacy Policy which are incorporated by reference, constitutes the final, complete and exclusive agreement between you and NIMA regarding the subject matter hereof and supersedes and merges all prior discussions between the parties. If any provision of These Terms of Use is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of NIMA to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. The parties of these Terms of Use have expressly required that the present Agreement be drawn up in the English language. Please contact us with any questions regarding these Terms of Use.
