THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST EIGHTEEN (18) YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH NEXTMARK FOUNDATION INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
Thank you for visiting the NextMark Foundation Inc. (“NEXTMARK”) website. Our goal is to make your experience with NEXTMARK enjoyable and effortless. To assist us in that goal, we have created this Terms of Use Agreement, which explains our policies and what you can expect when visiting our website. Should you have any questions concerning any of our policies, we encourage you to contact us.
1. This Terms of Use Agreement (“Agreement”) is a legal contract between you and NEXTMARK that governs the terms under which you will be permitted to access the NextMark Foundation Inc. website (the “Site”) and/or use of the services provided on the Site. WHEN YOU ACCESS THE SITE, SUCH AS WHEN YOU READ ITS PAGES, DOWNLOAD ITS CONTENT, CREATE A USER ACCOUNT, PLACE AN ORDER FOR NEXTMARK PRODUCTS OR INTERACT WITH NEXTMARK REPRESENTATIVES, ETC., YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE INCORPORATED PRIVACY POLICY, AND ANY UPDATED VERSIONS AS MAY BE CREATED FROM TIME TO TIME. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE CEASE ALL ACCESS TO AND/OR USE OF THE NEXTMARK WEBSITE.
2. CONSENT TO USE OF DATA; PRIVACY. At NEXTMARK, we understand your concerns about your private information. For that reason, we have created the NextMark Foundation Inc. Privacy Policy, (“Privacy Policy”), which is wholly incorporated into this Agreement. You can read the full terms of the Privacy Policy, as may be amended from time to time, which follows this Terms of Use. You agree that NEXTMARK (or its agents) may collect and use the technical and personal data that it gathers solely to improve its products and your experience with the Site, its services and products. NEXTMARK will not disclose this information in a form that personally identifies you, except as otherwise provided in this Agreement or the incorporated Privacy Policy.
3. SITE CONTENT. All content included on the Site, such as text, graphics, logos, button icons, images, digital downloads, data compilations, scripts, service names and software, as well as the compilation of the content, is the property of NEXTMARK or of third parties from whom NEXTMARK has obtained a license for the content use, and is protected by United States and international intellectual property laws, including those involving copyright, trademark, and trade dress. You may not copy or use the content of the Site, in whole or in part, including but not limited to its copyright, trademark, trade dress and other intellectual property, without the express, written consent of NEXTMARK.
4. LICENSE AND SITE ACCESS. NEXTMARK grants to you a non-exclusive limited license to access and make personal non-commercial use of the Site. This license does not entitle you to any resale or commercial use of the Site or its contents; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of any person other than you; or any use of data mining, robots or similar data gathering and extraction tools, which are expressly forbidden for any purpose whatsoever. You may not reproduce, duplicate, copy, sell or otherwise exploit for any commercial purpose the Site or any portion of its contents or the NEXTMARK trademarks, including but not limited to, NEXTMARK FOUNDATION®, NEWMARK™, NEWMARK EDUCATION™, its trade dress, logo or other proprietary information without NEXTMARK’s express written consent. This prohibition includes the use of “framing,” “metatags,” or any application which make hidden use of the NEXTMARK website or its proprietary content.
You are, however, permitted to download, print or email any pages from the NEXTMARK website for your personal and non-commercial use.
If you are under the age of eighteen (18), you must have the permission of your parent or guardian to access the Site or make use of its content. Your parent or guardian must also agree to this Agreement on your behalf.
NEXTMARK reserves the right to refuse service, terminate accounts, or remove or edit content, including but not limited to, content that you provide to the site such as a product review or testimonial, in its sole discretion.
5. PRODUCT/SERVICES INFORMATION. We are very proud of the products and services that we offer through the NEXTMARK Site. However, because of the technology used to represent those products on the Site, as well as the settings of your computer and monitor, there may be occasions when the colors, texture or detail that you see on the screen may differ from the actual product and/or service. NEXTMARK therefore cannot guarantee that your monitor’s display of any color, texture or detail of the products will be accurate.
6. CHANGED TERMS. NEXTMARK is constantly striving to update and improve its products and services, including the Site. Accordingly NEXTMARK reserves the right to amend, update or revise this Agreement or the incorporated Privacy Policy that follows. In that case, the revised Agreement or Privacy Policy will be posted on the Site and will automatically come into effect upon posting. We encourage you to check back regularly to determine whether any revisions have been made, as your continued access and use of the Site will constitute your agreement to be bound by those terms.
7. DISCLAIMER OF WARRANTIES. You agree that access to the Site and the use of the services provided there are solely at your own risk. All Services are provided by NEXTMARK on an “as is” and “as available” basis. EXCEPT AS MAY BE OTHERWISE NOTED IN THIS AGREEMENT, NEXTMARK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. NEXTMARK DOES NOT MAKE ANY WARRANTY THAT ACCESS TO THE SITE OR THE SERVICES LICENSED HEREIN WILL MEET YOUR REQUIREMENTS OR THAT ACCESS OR SERVICES WILL BE AVAILABLE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NEXTMARK MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USING THE WEBSITE, SERVICES OR THE PRODUCTS SOLD THEREON. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEXTMARK SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT THAT CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY. IT IS AGREED THAT THE EXCLUSIONS SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEXTMARK BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PROSPECTIVE BUSINESS ADVANTAGE, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF, MISUSE OF OR INABILITY TO USE THE SITE, SERVICES OR PRODUCTS PROVIDED IN CONNECTION WITH THE SITE, OR OTHERWISE ARISING OUT OF THE USE, MISUSE OR UNAVAILABILITY OF THE SITE OR SERVICES OR PRODUCTS PROVIDED IN CONNECTION WITH THE SITE OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT, INCLUDING NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF NEXTMARK, AND EVEN IF NEXTMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL NEXTMARK BE LIABLE FOR YOUR USE OR MISUSE OF THE SITE, SERVICES OR CONTENT PROVIDED IN CONNECTION HEREWITH. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF NEXTMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SITE OR ANY SERVICES OR PRODUCTS PROVIDED IN CONNECTION THEREWITH, INCLUDING DAMAGES THAT MIGHT BE INCURRED BY THIRD PARTIES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND THE FULLEST EXTENT PERMITTED BY LAW.
10. EXCLUSIVE REMEDY. You agree that NEXTMARK’s sole liability and your exclusive remedy, in law, in equity or otherwise, with respect to the Products, Services or for any breach of this Agreement or the incorporated Privacy Policy is solely limited to the return of the amount paid by you to NEXTMARK.
11. DISPUTE RESOLUTION AND BINDING ARBITRATION.
(a) YOU AND NEXTMARK ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (”AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 16. (The AAA Rules are available at https://www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(c) You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy and shall be initiated in the State of New Jersey.
12. CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, excluding its conflict of laws rules.
13. THIRD-PARTY BENEFICIARIES. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
14. YOUR CONDUCT. From time to time, there may be opportunities for you to communicate with others through the Site, including chat rooms, postings, emails, etc. You agree that you shall use the Site for lawful purposes only. You shall not post or transmit through the Site any material that violates or infringes in any way upon the rights of others. You also agree that you will not use lewd language, threaten physical or personal harm or otherwise engage in objectionable conduct while communicating with others through the Site, including NEXTMARK representatives. NEXTMARK reserves the right to remove any material posted by you to the Site that NEXTMARK, in its sole discretion, believes is lewd, threatening, inappropriate, objectionable, unlawful, in violation of the rights of others or otherwise in breach of this Agreement. You shall indemnify NEXTMARK and its affiliates (including, but not limited to, its owners, employees, officers and agents) for all third-party claims, including reasonable attorney’s fees, resulting from your use of the Site.
You also agree to defend, indemnify and hold NEXTMARK and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by NEXTMARK, directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; and/or (iv) your violation of any third party right, including without limitation any copyright, property, or privacy right.
15. WEBSITE ACCESSIBILITY. This website and its content are dynamic, and technology is constantly evolving. NEXTMARK strives to ensure that its website is useful, aesthetically pleasing and reasonably accessible to the widest audience possible. While we strive to make our website reasonably accessible to the widest audience possible, it is impossible to insure that unforeseen issues will not arise in the future. If you are having any specific difficulty using the NEXTMARK website, please contact NEXTMARK at info@nextmarkfoundation.org or pursuant to paragraph 16, below. NEXTMARK welcomes any feedback on how to improve the website’s accessibility for users.
16. NOTICES.
(a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to info@nextmarkfoundation.org; or (ii) by personal delivery, overnight courier or registered or certified mail to:
NextMark Foundation, Inc.
1000 Cellar Avenue
Scotch Plains, New Jersey 07076
We may update the address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Otherwise, notices will be effective three business days after they are sent.
17. FORCE MAJEURE. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18. MISCELLANEOUS PROVISIONS.
(a) If for any reason a court of competent jurisdiction finds any provision or portion thereof to be unenforceable, the remainder of the terms of the Agreement shall continue in full force and effect.
(b) This Agreement, the Privacy Policy and any expressly incorporated document represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or Agreements, written or oral.
(c) Any waiver of any provision of this Agreement will be effective only if in writing and signed by NEXTMARK. The failure by NEXTMARK to enforce any provision of this Agreement or portion thereof does not act as a waiver or estop NEXTMARK from enforcement of the remaining terms.
(d) The section headings appearing in this Agreement are inserted for convenience only and in no way define, limit, construe or describe the scope or extent of any section or, in any way, affect such section.
19. COPYRIGHT POLICY. Reporting Claims of Copyright Infringement.
(a) NEXTMARK takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this site (the “Website”) infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
NextMark Foundation, Inc.
Attn.: Cynthia Allman
1000 Cellar Avenue
Scotch Plains, New Jersey 07076
info@nextmarkfoundation.org
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
(b) Counter-Notification Procedures
If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent designated [above/below]. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- Your physical or electronic signature.
- An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
- A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
Our designated agent to receive Counter-Notices is:
NextMark Foundation, Inc.
Attn.: Cynthia Allman
1000 Cellar Avenue
Scotch Plains, New Jersey 07076
info@nextmarkfoundation.org
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
(c) Repeat Infringers
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
NextMark Foundation Inc. Terms of Use © Effective November 8, 2018