Effective Date: June 24, 2018
These Terms of Service (“Terms”) govern the access or use by you of Nexar’s smart dashcam mobile application or any other software by Nexar (the “App”) and other products and/or services (collectively with the App, the “Services”) provided by Nexar, Inc., its subsidiaries (including Nexar Ltd.) and any of its affiliates (collectively “Nexar”, “we,” “us” or “our”). Please read these Terms carefully before using our Services. By downloading and using our Services, you are agreeing to these Terms, which establishes a contractual relationship between you and Nexar. If you do not agree with these Terms, do not access or use the Services. These Terms constitute the entire agreement between you and Nexar and supersede any prior agreements.
Nexar may revise these Terms from time to time. We will identify the date the Terms were last updated at the beginning of the Terms. All changes are effective immediately when we post them (or such later effective date as may be indicated at the top of the revised Terms) and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of the revised Terms means you accept and agree to the changes. It is your sole responsibility to check for updates to these Terms on an ongoing basis. If we make any material changes to these Terms (e.g. regarding our data collection, processing and purpose or usage), we will notify you and require your explicit consent before you will be able to continue to use the Services.
You must be an individual, at least 18 years old to download the APP and use our Services. By using our Services, you warrant that you are 18 years or older and understand your obligations under these Terms. You agree to comply with all applicable laws and regulations when using the Services, and you may only use the Services for lawful purposes.
Software may be downloaded onto your smartphone to access our Services. We reserve all other rights to the App and to any such software. The App or any other software by Nexar may update automatically on your device once a new version or feature is available. Some Services may let you adjust your automatic update settings.
Any software provided to you is licensed, not sold. You have the right to use the App to access the Services, subject to the conditions and limitations set out in these Terms. The license only authorizes use of one copy of the App on your device. You have no right to sublicense, copy, transfer, modify or make derivative works of the software. Unless we notify you otherwise, the software license ends when your use of the Services ends. You must then promptly uninstall the software, and we may disable it. You must not work around any technical limitations in the software.
As between Nexar and you, Nexar or its licensors own and reserve all rights, title and interests in and to the Services and all hardware, software and other items used to provide the Services, other than the rights explicitly granted to you to use the Services in accordance with these Terms. No title to or ownership of any proprietary rights related to the Services is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Nexar. In the event that you provide comments, suggestions or recommendations to Nexar related to the Services (including, without limitation, regarding modifications, enhancements, improvements or other changes to the App) (collectively, “Feedback”), you hereby grant to Nexar a world-wide, royalty-free, irrevocable, perpetual license to use and otherwise incorporate any Feedback provided.
You may not (i) remove any copyright, trademark or other proprietary notices from any portion of the App; (ii) reproduce, modify, distribute, sell or lease any part of the Services; or (iii) reverse engineer or attempt to extract the source code of any software we provide, unless applicable laws prohibit these restrictions or you have our written permission to do so.
You represent and warrant that neither the User Content nor your submission, uploading or otherwise making available of such User Content or Nexar's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive, as determined by Nexar in its sole discretion, whether or not such material may be protected by any applicable law. Although we are not required to do so, we may access, review and delete User Content at any time, including to assess whether it violates these Terms.
We reserve the right to retain incidents and time-lapse photography indefinitely in de-identified form (i.e. any link to the user or to the information specific to the user that recorded them, including GPS, will be deleted).
You are responsible for any mobile charges that you may incur for using our Services. If you are unsure what those charges may be, you should consult your service provider before using the Services.
By using the Services, you agree that Nexar may send you informational text (SMS) messages as part of the normal business operation of your use of the Services.
Nexar reserves the right, in its sole discretion, to make any necessary unscheduled changes, updates or enhancements to the Services at any time. We may add or remove functionalities or features, and we also reserve the right to suspend or terminate your access to any or all of the Services at any time in our sole discretion, with or without cause or notice, and without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Services due to: (a) an actual or suspected violation of these Terms; (b) use of the Services in a manner that may cause Nexar to incur legal liability or disrupt others' use of the App; (c) the suspicion or detection of any malicious code, virus or other compromise of the security of the Services by you; (d) scheduled or recurring downtime; or (e) unplanned technical problems and outages.
If, in our determination, the suspension might be indefinite or we have elected to terminate your access to any or all of the Services you may no longer have access to the data that are stored through our services. Nevertheless, where reasonably possible, we will give you reasonable advance notice and a chance to extract your data stored through our Service.
NEXAR PROVIDES THE SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEXAR MAKES NO – AND SPECIFICALLY DISCLAIMS ALL – REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE DATA YOU PROVIDE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT WHEN USING NEXAR SERVICES, YOU MAY FIND THAT ACTUAL CONDITIONS DIFFER FROM THE INFORMATION PROVIDED REGARDING FORWARD COLLISION WARNINGS, HARD BRAKES AND SHARP TURNS, SO EXERCISE YOUR INDEPENDENT JUDGEMENT. THE INFORMATION PROVIDED UNDER THE SERVICES IS NOT INTENDED TO REPLACE INFORMATION PROVIDED ON THE ROAD LIKE TRAVEL DIRECTION, TIME BASED RESTRICTIONS, LANE RESTRICTIONS, ROAD BLOCKADES, TRAFFIC SIGNS, TRAFFIC LIGHTS OR POLICE INSTRUCTIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEXAR, ITS OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST DATA, PROFITS OR REVENUE), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF NEXAR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF NEXAR, ITS OFFICERS, EMPLOYEES, AGENTS OR SUPPLIERS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF USD 100 OR THE AMOUNT YOU PAID NEXAR, IF ANY, IN THE LAST 12 MONTHS. THE LIMITATIONS AND EXCLUSIONS APPLY REGARDLESS OF WHETHER THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
To the extent permitted by law, you will defend, indemnify and hold Nexar, its officers, employees, agents or suppliers harmless from any and all claims, demands, losses, liabilities and expenses (including costs and attorneys' fees) made by any third party due to or arising out of (i) your use of the Services, (ii) your violation of these Terms, or (iii) your violation of any applicable law or the rights of any third party. Nexar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Nexar, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Nexar's prior written consent. Nexar will use reasonable efforts to notify you of any such claim or demand that is subject to your indemnification obligation.
These Terms shall be governed and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict or choice of law provisions.
By agreeing to these Terms, and to the extent applicable by local law, you also agree to arbitrate any and all claims against Nexar pursuant to the Federal Arbitration Act and subject to the terms below. You and Nexar agree that we intend that this Section 12 satisfies the “writing” requirement of the Federal Arbitration Act, and further agree, that notwithstanding any other provision of the Terms, the Federal Arbitration Act shall govern the interpretation and enforcement of this Section.
If a dispute arises between you and Nexar regarding a claim, you and we agree to binding alternative dispute resolution pursuant to the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and its Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”).
TO THE EXTENT POSSIBLE BY LOCAL LAW, ARBITRATION OF YOUR CLAIM IS MANDATORY AND BINDING. NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO A JURY TRIAL OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE AAA RULES.
NO CLASS ACTION, OR OTHER REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON OR CLASS OF CLAIMANTS SHALL BE PERMITTED.
All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. The arbitration proceeding will be held in New York, New York (borough of Manhattan), unless you elect to proceed with a telephonic hearing or unless you and Nexar agree to an alternative location. Nexar will pay the initial filing fee for any arbitration, but the parties each shall otherwise bear their respective fees and expenses except as may be provided in the AAA Rules.
For a copy of the AAA Rules, to file a claim or for other information about the AAA, contact AAA at www.adr.org.
All determinations as to the scope, interpretation, enforceability and validity of these Terms shall be made final exclusively by the arbitrator, which award shall be binding and final. Judgment on the arbitration award may be entered in any court having jurisdiction.
This arbitration provision shall survive the termination of the Services or of these Terms. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall remain in force.
Subject to the provisions of Section 12 (Arbitration and Class Action Waiver) and to any applicable law, you and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for New York, New York (borough of Manhattan), USA, for all disputes arising out of or relating to these Terms. Notwithstanding anything to the contrary in Section 12, either party may bring an action in such court for temporary injunctive relief to preserve the status quo or to enjoin a violation of these Terms until an arbitrator can be empaneled and determine whether such relief should continue.
Any failure by Nexar to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid, illegal or unenforceable for any reason by an arbitrator, court or other tribunal of competent jurisdiction, the provision shall be modified to the extent necessary to make it enforceable while, to the maximum extent possible, reflecting the intent of the parties, and, in any event, the remaining provisions of these Terms will remain in full force and effect.
We may assign, transfer or otherwise dispose of our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Services without our written permission.
If you have any questions about these Terms, please contact us at https://www.getnexar.com/contact-us.