Last Updated July 20, 2022
PLEASE CAREFULLY READ THESE TERMS BEFORE USING THIS WEBSITE OR USING OUR SERVICES. BY ACCESSING THIS WEBSITE OR USING THE NEARSIDE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT ACCESS THIS WEBSITE OR USE THE NEARSIDE SERVICES.
1. WHAT IS THIS AGREEMENT?
1.1. This Agreement is a Contract.
These terms of service (the “Terms”) describe a contractual relationship (this "Agreement") between you ("you" or "your") and Nearside Business Corp., Inc. (including its subsidiaries, affiliates, agents, and assigns) ("Nearside," "we," "us," or "our"), regarding your use of this website (the "Website"), any Nearside mobile applications (the “Mobile App”), your use of any services or products offered through the Website and Mobile App, and your access and use of any Nearside accounts (collectively, the "Nearside Service(s)" or "Service(s)"). This Website and the Services are being provided to you expressly subject to this Agreement. By accessing, browsing and/or using this Website or any Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations.
These Terms also govern your use of the Services to access, manage or conduct transactions on the Nearside non-interest-bearing deposit account and the related debit Mastercard® (“Nearside Bank Account”), both of which are made available by Piermont Bank in partnership with Nearside. The Nearside Bank Account is governed by the bank account terms and conditions and any other documents provided to you by or on behalf of Piermont Bank, National Association (Piermont) (collectively, “Bank Account Terms”), and by using the Nearside Services to access the banking services offered by Piermont Bank, you are agreeing to be bound by the Bank Account Terms.
1.2. Changes to this Agreement.
We reserve the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on the Website. All changes shall be effective upon posting, provided, however, such changes will not impose additional obligations on you for actions you took before the change became effective. Your continued use of the Website or Services after any change to this Agreement constitutes your agreement to be bound by the updated Agreement for any actions taken after such posting. We may terminate, suspend, change, or restrict access to all or any part of this Website or Services without notice or liability.
1.3. Use of Services and Termination of Your Account.
Use of the Services is void where prohibited. By using the Services, you represent, warrant and covenant that (a) all information you submit through this Website or Mobile App is truthful and accurate; (b) you will maintain the accuracy of such information and either update or notify us of any changes; (c) you are 18 years of age or older; (d) your use of the Services does not violate any applicable law or regulation to which you are subject; (e) you will conduct yourself in a reasonable manner when dealing with us and provide information as requested; and (f) you do not and will not engage in any deceitful or fraudulent behavior in connection with the use of our Services. Your profile may be deleted and your account may be terminated at any time, if we believe, in our sole discretion, that you have violated any of the Terms.
2. WHAT SERVICES DOES NEARSIDE PROVIDE?
2.1. Tools We May Offer.
We may from time to time offer you the ability to access certain software and other tools. Examples of such tools may include financial calculators, customized financial analysis, payment reminders, dashboards with information about you and your business, and other similar services. Unless we indicate otherwise, these tools will be provided free of charge and are provided exclusively for your personal use.
2.2. Limitations on and use of Tools.
You agree that we may modify the tools or cease making them available to you at any time without notice or liability to you. We have no obligation to continue to make any particular tool available to you or to do so without charge. There may be times when a tool we offer is unavailable or not properly functioning, and you agree that we have no liability to you if this occurs or in connection with the use or performance of the tools generally. You understand that some tools or some tool functionality may only be available to people who have relationships with certain service providers or financial institutions or who have certain financial products. You agree that we may use information we gather through the tools to market other products and/or services to you, including those of third parties, unless we are restricted by you, law or regulation from doing so.
2.3. Third Party Providers.
We may rely on third party providers to assist us in making a tool or other Service available to you. By linking your bank or other account to a tool or Service, you authorize us and our third party providers to access your account information on your behalf, and to gather information about you. You give us and our third party providers a limited power of attorney, and appoint us and our third party providers as your true and lawful attorney-in-fact and agent to act on your behalf and access, transmit, and use your information as necessary to provide the tools and other Services. You agree to the transfer, storage, and processing of your information by these third party providers in accordance with their respective privacy policies. We have no liability to you for any damages you may suffer as a result of any such third party's actions or inactions or from the use of any inaccurate account information.
You agree that the terms and conditions of this Agreement, inure to the benefit of such third party providers and such third party providers are deemed to be third party beneficiaries of this Agreement. You also agree that all references to us within this Agreement are also deemed to include, where applicable, our agents, such as any third party providers.
2.4. Tools are Provided for Informational Purposes Only.
Any information provided through the tools is provided for informational purposes only and not a substitute for individualized professional advice. We do not provide “credit services” or “credit repair” services as defined under federal or state law. We do not advise or assist you with “rebuilding” or “improving” your credit. The tools are not intended to provide financial, legal or tax advice, and we are not a financial planner, broker or tax advisor.
2.5. Accuracy, Reliability and Timeliness of Information
YOUR USE OF THE TOOLS IS AT YOUR SOLE RISK. INFORMATION PROVIDED THROUGH THE TOOLS IS ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR INFORMATIONAL PURPOSES ONLY. WE MAKE NO WARRANTY OR REPRESENTATION THAT THE TOOLS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE OR RELIABLE.
3. HOW DOES NEARSIDE PROVIDE ITS SERVICES?
3.1. Collecting Information About You.
3.2. Credit Report Authorization and Reporting.
You expressly authorize Nearside or its partner bank to obtain consumer reports from consumer reporting agencies about you (1) when you apply for a credit product, (2) periodically throughout the term of your loan (including in the month following the month when you pay off or otherwise satisfy the loan) and (3) periodically in connection with any other services you may obtain from us. You expressly authorize us to use the information that we obtain from such reports to, among other things, market refinancings and Nearside's current and future products and services to you (both during and after the term of your loan and the term of any other services you may obtain from us), provide you with other services that you may request, make decisions related to the servicing and collection of your account, measure how the loan you obtained from us impacts your credit, perform other statistical analysis, and share information with you about your credit profile.
If you have obtained a credit product through us, you understand that Nearside may report information about your credit product (such as on-time, late, and missed payments; any defaults; and the fact you paid off your loan) to credit reporting agencies.
You agree to allow Nearside to send you payment reminders from time-to-time. Notwithstanding whether you have consented or withdrawn your consent to the Nearside E-Sign Consent, you agree that payment reminders may take the form of any available communication. You also agree that if you fail to pay an amount owed to Nearside pursuant to this Agreement, Nearside may engage in collection efforts to recover such amounts from you. These collection efforts may involve contacting you directly, submitting your information to a collections agency, or taking legal action.
3.4. Communication & Notification.
You agree that Nearside may provide you communications about your account and the Nearside Service electronically or through phone calls or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. Nearside reserves the right to close or limit access to your account and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications or if you revoke access to any third party site on which the Nearside Service relies. Any electronic communications will be considered to be received by you at the time we email it to you or otherwise send it to your attention (such as via SMS or other online or mobile notification).
If we need to contact you about your account or to collect amounts you owe to us, you give direct consent to us, as well as servicers, agents, contractors and collectors of your account, to communicate with you in any way, such as calling, texting, or email via:
- a mobile phone or landline you provide to us, use to contact us, or at which we believe we can reach you (even if it is not yours),
- any email address you provide to us or one of our merchants,
- automated dialer systems and automatic telephone dialing systems, and
- pre-recorded or artificial voice messages and other forms of communications.
You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges.
You understand and agree that Nearside may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Nearside or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with Nearside may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by Nearside, and Nearside does not guarantee that recordings of any particular telephone calls will be retained or retrievable. Notwithstanding this provision, Nearside's delivery of any disclosures governed by the Nearside E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such disclosures in electronic form.
3.5. Cancelling Transactions.
Nearside may choose not to provide service to you at any time or for any reason. Nearside may cancel transactions at any time before a merchant delivers any goods or services if you violate any term of this Agreement.
3.6. Working with Third Parties.
If you grant express permission to a third party to take specific actions on your behalf, or access particular information about your account, either through your use of the third party's product or service or through our Services, you acknowledge that Nearside may disclose the information about your account that is authorized by you to this third party. You also acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under this Agreement. Further, you acknowledge and agree that you will not hold Nearside responsible for any liability arising from the actions or inactions of this third party in connection with the permissions you grant.
3.7. Links to Other Websites.
Links to non-Nearside websites are provided solely as pointers to information on topics that may be useful to users of the Services, and Nearside has no control over the content on such non-Nearside websites. Nearside makes no warranties concerning the content of such websites, including the accuracy, completeness, reliability of said websites or the information provided therein. You agree that you will not hold Nearside responsible for any liability or losses arising from any use of non-Nearside websites. If you choose to follow a link to a website not controlled by Nearside, you do so at your own risk. Links to non-Nearside websites do not imply any endorsement of or responsibility for the opinions, ideas, products, information or services offered at such sites, or any representation regarding the content at such websites.
4. WHAT ARE YOUR OBLIGATIONS.
4.1. Agreement to Provide Accurate Information.
When you provide information to Nearside or in connection with the Nearside Services, you agree to provide only true, accurate, current and complete information and you agree not to misrepresent your identity or your account information. You further agree to keep your account information up to date and accurate. You acknowledge that Nearside will be relying on any information that you provide.
4.2. Requirements for using the Services.
By using the Nearside Services, you agree that:
- You will not engage in any activities related to or involving your use of the Services that violate any applicable law, statute, regulation, or ordinance or breach this Agreement or any other agreement you have with Nearside;
- You will not use the Services to purchase or sell:
- Illegal items or conduct any illegal activities or transactions;
- Narcotics, cannabis or consumable hemp, steroids, controlled substances, quasi-pharmaceuticals, or drug paraphernalia;
- Cash or currency in any form, including virtual and digital currency;
- Stolen goods, including but not limited to, digital or virtual goods;
- any good or service that is reasonably likely to cause harm to Nearside; or
- any good or service deemed unacceptable by Nearside or its bank partner, in their sole discretion;
- You will not use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Services or to surreptitiously intercept or expropriate any system, data or personal information from the Services;
- You will not commit unauthorized use of Nearside's Website and systems including but not limited to unauthorized entry into Nearside's systems, misuse of passwords, or misuse of any information posted to a site; and
- You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique.
4.3. Access to Your Account.
You are responsible for maintaining the secrecy of the login credentials to your Nearside account. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information.
4.4. Website Content.
The information on the Nearside website is for information purposes only. It is believed to be reliable, but Nearside does not make any promises as to its completeness, timeliness or accuracy. The information and materials contained in the Website, and in this Agreement, are subject to change without notice.
Access to the Services may from time to time be unavailable, delayed, limited or slowed due to, among other things:
- servers, networks, hardware failure (including your own computer), telecommunication lines and connections, and other electronic and mechanical equipment;
- software failure, including among other things, bugs, errors, viruses, configuration problems, incompatibility of systems, utilities or applications, the operation of firewalls or screening programs, unreadable codes, or irregularities within particular documents or other content;
- overload of system capacities;
- damage caused by severe weather, earthquakes, wars, insurrection, riots, civil commotion, act of God, accident, fire, water damage, explosion, mechanical breakdown or natural disasters;
- interruption of power supplies or other utility of service; strike or other stoppage of labor;
- governmental or regulatory restrictions, exchange rulings, court or tribunal orders or other human intervention; or
- any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond the control of Nearside.
If access to this Website is unavailable, delayed, or limited, or if this Website does not operate quickly and efficiently, you may be unable to complete your application or transmit your instructions for transactions and other matters, or such application or instructions may not be promptly executed or you may be unable to retrieve information on a timely basis. If your operations are dependent on such communications with us, and such communications are disrupted or delayed, you may suffer losses. You agree that we will not be liable for any such losses.
4.5. Closing Your Account.
Nearside may close your account and restrict your ability to use our Services for any violation of the terms set forth in this Agreement. Nearside may also close your account if you have an excessive amount of chargeback activity compared to industry norms or if you do not log in to your account or use the Nearside Services for more than a year.
4.6. Feedback That You Provide.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.
5. THE SERVICES.
5.1. Paid Services.
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before charging a fee for the Services. If you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
- Paid Services. Certain of our Services incur fees (the “Paid Services”) that will be disclosed to you. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
- Billing. We bill you through your Nearside Bank Account for use of the Paid Services. By choosing to use Paid Services, you agree to pay us, through the payment processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us to charge your Nearside Bank Account. You agree to make payment using that selected payment method. We reserve the right to correct any errors or mistakes made even if a payment has already been requested or received.
- Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time or no charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY CHARGE YOUR NEARSIDE BANK ACCOUNT FOR PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION FOR US TO CHANGE YOUR NEARSIDE BANK ACCOUNT, GO TO YOUR ACCOUNT SETTINGS .
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR NEARSIDE BANK ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR NEARSIDE BANK ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CARD NUMBER, OR CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US IF YOUR NEARSIDE BANK ACCOUNT OR CARD IS COMPROMISED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR ACCOUNT. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR NEARSIDE BANK ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Nearside Bank Account varies from the amount you preauthorized, you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction.
- Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or cancel your Paid Services at any time, go to account settings. If you terminate a Paid Service, you may use your membership until the end of your then-current period, and your subscription will not be renewed after your then-current period expires. However, you will not be eligible for a prorated refund of any portion of the fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring monthly basis, you must cancel the applicable Paid Service through your account settings or terminate your Nearside Bank Account before the end of the recurring period. Paid Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Nearside will not be obligated to refund any fees that you have already paid.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Nearside Bank Account for that Paid Service. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
5.2. Mobile Apps.
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
5.3. Apple Store Terms.
These terms apply to your use of all the Services, including our iOS applications (the “iOS App”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the iOS App:
- Both you and Nearside acknowledge that these terms are between you and Nearside only, and not with Apple, and that Apple is not responsible for the iOS App or the content;
- The iOS App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these terms as they are applicable to the Services;
- You will only use the iOS App in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App;
- In the event of any failure of the iOS App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS App;
- You acknowledge and agree that Nearside, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS App;
- You acknowledge and agree that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringes that third party’s intellectual property rights, Nearside, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Nearside acknowledge and agree that, in your use of the iOS App, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Nearside acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these terms, and that upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these terms against you as the third-party beneficiary hereof.
6. HOW ARE DISPUTES RESOLVED.
6.1. Disputes involving Nearside.
If a dispute arises between you and Nearside, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact Nearside at email@example.com or at the following number 1-888-516-2369 to try resolving your problem directly with us.
6.2. Mandatory Arbitration.
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS BY USING THE NEARSIDE SERVICE OR THE WEBSITE. Except as explicitly provided in this Agreement, any dispute or claim relating in any way to your visit to the Website, your use of the Nearside Services, a product offered or provided by or through the Website or Service, or otherwise arising out of or relating to this Agreement or the Services that cannot be resolved directly between you and Nearside shall be resolved by non-appearance based binding arbitration, rather than in court. Except as otherwise provided in this Agreement, this includes any claims based in contract, statute, tort, fraud, misrepresentation or any other legal theory. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Either you or we can initiate arbitration through the alternative dispute resolution provider the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules. If such costs are determined by the arbitrator to be excessive, Nearside will pay all arbitration fees and expenses. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(855) 891-2885 or visit the AAA’s web site at: www.adr.org.
The arbitration shall be conducted by telephone or electronic means and/or shall be solely based on written submissions, the specific manner of which shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You and Nearside each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial and agree to proceed only on an individual basis and not in a class, consolidated, or representative action. The parties hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in these terms.
We also both agree that you or we may bring suit in court to obtain interim or preliminary injunctive relief necessary to protect the rights or property of you or Nearside and all of its partners. Except as explicitly provided elsewhere in this Agreement, all claims you bring against Nearside must be resolved in accordance with this Section. Any claim filed or brought contrary to this Section shall be considered improperly filed.
You may opt out of this Arbitration Provision by sending an arbitration opt out notice to Nearside Business Corp., Inc., PO Box 7775, PMB 68032, San Francisco, CA 94120-7775, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you.
You and Nearside agree that any arbitration shall be limited to the dispute between Nearside and you individually. To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
6.4. Exceptions to Informal Negotiations and Arbitration.
You and Nearside agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Nearside's intellectual property rights; and (2) any claim for injunctive relief.
7. OTHER MATTERS
Nearside operates and controls the Services from its offices in the United States. Nearside makes no representation that the Services are appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Nearside to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Software from the Services may be subject to United States export controls. The privileges granted to you under these Terms will terminate immediately and automatically without notice from Nearside if, in our sole discretion, you fail to comply with any term or provision of these Terms. Neither the course of conduct between the parties nor trade practice will act to modify these Terms.
You may not assign these Terms without Nearside's prior written consent, but Nearside may assign these Terms and its rights and obligations hereunder to any party at any time without any notice to you. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon Nearside's request, you will furnish Nearside any documentation, substantiation or releases necessary to verify your compliance with these Terms. You agree that these Terms will not be construed against Nearside by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
7.2. Enforceability and Governing Law.
The failure of Nearside to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. These Terms supersedes any previous terms that may have existed between you and cannot be changed or modified by you. If you do not agree to these Terms, please do not use the Services. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. The laws of the State of California govern your access to, and use of, the Services and the Terms.
7.3. Intellectual Property.
All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by Nearside. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
"Nearside" is the marketing name for certain financial services activities of Nearside Business Corp., Inc. as operator of the Services. Other featured words or symbols may be the trademarks of their respective owners.
You agree to indemnify and hold harmless Nearside from and against any and all claims, losses, expenses, demands or liabilities, including attorneys’ fees and costs, incurred by Nearside in connection with any claim by a third party (including any intellectual property claim) arising out of (i) materials and content you submit to, post to, or transmit through the Website, or (ii) your use of the Website and Services in violation of this Agreement or in violation of any applicable law. You further agree that you will cooperate fully in the defense of any such claims. Nearside reserves the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such claim or matter without the written consent of Nearside.
7.6. DISCLAIMER OF WARRANTY.
NEARSIDE AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT (i) THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES OR (ii) THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE WEBSITE, APP OR SERVICES. NEARSIDE AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEARSIDE AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.
7.7. LIMITATION OF LIABILITY.
NEARSIDE AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR THE USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, NEARSIDE AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE NEARSIDE AND ITS AFFILIATES LIABLE FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER NEARSIDE NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
7.8. Statute of Limitations.