This Terms of Service Agreement (these “Terms”) is made and entered into by and between you, as a User (as defined below), and Nth Round, Inc., a Delaware corporation doing business as Nth Round (“Nth Round”). These Terms contains the terms and conditions that govern the use of Nth Round’s all-in-one equity platform (the “Platform”). Nth Round directly, and through its website (https://nthround.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://nthround.com/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
These Terms are applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to these Terms, and User’s agreement to these Terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. BY CLICKING THE APPLICABLE BUTTON TO INDICATE USER’S ACCEPTANCE OF THESE TERMS, (2) ACKNOWLEDGING ACCEPTANCE OF THESE TERMS IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATING THE TERMS OF THESE TERMS, (3) ACCEPTING THESE TERMS IN ANY OTHER MANNER SPECIFIED BY NTH ROUND, OR (4) BY ACCESSING OR USING THE PLATFORM, USER AGREES, EFFECTIVE AS OF THE DATE OF SUCH ACTION, TO BE BOUND BY THESE TERMS.
YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS OF SERVICE LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS IN SECTIONS 20 AND 22 BELOW. PLEASE ALSO REVIEW SECTION 27 OF THESE TERMS CAREFULLY, AS IT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER WHICH REQUIRES USER TO RESOLVE DISPUTES WITH NTH ROUND THROUGH FINAL, BINDING ARBITRATION ON AN INDIVIDUAL BASIS.
By entering into these Terms, User is acknowledging that User has read and that User understands the terms of these Terms and that User agrees to be bound by the arbitration provision and class action waiver.
Nth Round’s provision of any Service is subject to the terms of these Terms and any supplemental terms referenced herein, made available to User within the Services, or which Nth Round may present User with for review and acceptance at the time User subscribes to such Service (each, a “Service Terms”), and any Service Terms shall be incorporated into and form a part of these Terms. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://nthround.com/pricing (as updated from time to time), and User authorizes Nth Round to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar years in which User is enrolled in any Services, and such fees are applied in full for a given calendar year, regardless of whether User is only enrolled in the Services for a portion of such year. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on an annual calendar basis, in arrears. Notwithstanding the foregoing, Nth Round may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Nth Round may deem acceptable in its sole discretion. All fees are non-cancelable (except as explicitly provided for in these Terms and/or any Service Terms) and non-refundable. User agrees to reimburse Nth Round for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Nth Round may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Nth Round reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to these Terms is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to these Terms takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Nth Round is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
Nth Round currently offers several Service Plans (each, a “Service Plan”) with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://nthround.com/pricing. User may request to change User’s Service Plan by contacting Nth Round’s Customer Success team at support@nthround.com.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar year in which User upgraded[, prorated for the remainder of the calendar year,] and for each calendar year thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the calendar year following the calendar year in which User elected to downgrade (the “Downgrade Election Year”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Year. After the Downgrade Election Year, User will lose access to the features and Services available with User’s Current Plan but not the New Downgrade Plan, and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Year, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar year following the Downgrade Election Year and for each calendar year thereafter for so long as User is subscribed to the New Downgrade Plan.
To use the Platform, User must have an account with Nth Round (an “Account”). User agrees that all registration information User gives Nth Round will be accurate and current. User will timely notify Nth Round of any changes to any of the foregoing information.
User hereby authorizes Nth Round to obtain and store User’s Account information as necessary to make the Platform available to User.
User may use the Services only if User is eighteen (18) years of age or older and is not barred from using the Services under applicable law and has not previously been barred from using the Services by Nth Round.
Please refer to Nth Round’s Privacy Policy (the “Privacy Policy”) for information on how Nth Round collects, uses, and discloses personal information from Users. User acknowledges and agrees that Nth Round may collect, use, and disclose User’s personal information pursuant to the Privacy Policy, as it may be updated from time to time. Nth Round is not responsible for any information that User share with others via User’s use of the Services.
Use of the Platform and the Services are each conditioned upon User’s full compliance with these Terms and all applicable laws, rules, and regulations.
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf, and/or disable User’s Account.
User is responsible for controlling access to any PCs, mobile devices, or other end points that User allows to store User’s Platform password, or on which User enables a "Remember Me" or similar functionality. User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Nth Round reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Nth Round to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Nth Round provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause all individuals with access to User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Nth Round at support@nthround.com. Nth Round reserves the right to prevent access to the Services if Nth Round has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Nth Round with the information required for Nth Round to perform the Services. User may furnish such information directly to Nth Round or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Nth Round that for any information that User shares with Nth Round, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Nth Round, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Nth Round, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Nth Round.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Nth Round (or otherwise made available to User by Nth Round) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Nth Round of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Nth Round.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Nth Round of any third-party notices that User may receive which could affect Nth Round’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Nth Round in connection with the Services, including without limitation notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services and from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Nth Round by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Add New User” or other buttons) or otherwise (e.g., verbally telling a Nth Round Customer Success representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
User gives Nth Round permission to collect and use information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services, as further set forth in the Privacy Policy. User consents to and authorizes Nth Round to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Nth Round may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Nth Round is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
In order to use the payment functionality of Nth Round's application, you must open a "Dwolla Account" provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at www.nthround.com, support@nthround.com and/or (215) 469-1848.
Through the Platform, User will be able to elect to receive services from partners of Nth Round (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Nth Round is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Nth Round to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s bank account information and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Nth Round in connection with these Terms and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Nth Round and for Nth Round to provide it to Partners, and that Nth Round’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Nth Round to submit User’s Shared Information to a Partner, User has waived and released any and all Claims against Nth Round and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to or integrate with third-party websites or resources. Nth Round provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites, or for the privacy or security policies or practices of such third parties. Accordingly, Nth Round encourages User to review the privacy and security policies and terms of service of those third parties. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Nth Round provides to User via the Services shall constitute Nth Round Content (as defined below) hereunder. Nth Round does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Nth Round a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Nth Round the license rights in User Content under these Terms. User Content is subject to the provisions of Section 14, and Nth Round has the right to remove User Content from the Platform in accordance with Section 15.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Nth Round is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Nth Round’s Intellectual Property Rights
“Nth Round Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Nth Round, other than User Content. User Content and Nth Round Content shall be collectively referred to herein as “Content.” Nth Round and its licensors exclusively own all worldwide right, title, and interest in and to the Nth Round Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Nth Round IP”). User acknowledges that the Platform, Services, and Nth Round Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Nth Round Content. These Terms does not convey any proprietary interest in or to any Nth Round IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Nth Round Content (“Feedback”) is given entirely voluntarily and Nth Round will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Nth Round in response to any surveys Nth Round conducts, through any available technology, about User’s experience.
Subject to User’s compliance with these Terms, Nth Round grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Nth Round Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
In connection with User’s use of the Services, Nth Round may send User service announcements, administrative messages, and other information. By providing User’s mobile phone number to Nth Round, User agrees that Nth Round may send User autodialed Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages about activity in User’s Account and service updates, as well as SMS or MMS messages soliciting User’s feedback about the Services and User’s experience interacting with Nth Round’s Customer Success team. Standard message and data rates may apply. Note that Nth Round will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving non-marketing SMS and MMS messages, User should contact support@nthround.com. User may opt out of our marketing emails by clicking on the “unsubscribe” link in marketing e-mails or texting “Stop” or “Do Not Send” in response to text messages. Please be aware that there may be a brief period before Nth Round is able to process User’s opt-out.
User agrees not to take any of the following actions:
Although Nth Round is not obligated to monitor access to or use of User Content or to review or edit any User Content, Nth Round has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with these Terms, and complying with applicable law or other legal requirements. Nth Round reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Nth Round, at Nth Round’s sole discretion, considers any User Content to be objectionable or in violation of these Terms.
Nth Round has the right, but not the obligation, to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Nth Round believes could affect the Platform, Services, or Content, including violations of these Terms. Nth Round may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
Nth Round provides an electronic signature service (the “E-Sign Service”) which allows User to to sign documents provided by third-parties electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Nth Round has no responsibility or liability with respect to such matter.
Nth Round has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Nth Round makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
Nth Round makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, the Platform may be inaccessible and unavailable, including but not limited to for scheduled system maintenance or emergency maintenance, which may occur with or without notice to User.
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT NTH ROUND IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
Nth Round is not licensed as a money transmitter or registered as a Money Service Business (“MSB”) under the Bank Secrecy Act. As part of the Services, Nth Round will not receive money from Customers for purposes of transmission to a third party or transmit money to Customers on behalf of a third party nor will Nth Round engage in any other activity that would require licensure as a money transmitter and/or registration as a MSB. Any such money transmission services conducted through the Platform will be provided by third-party services providers that Nth Round has partnered with who are responsible for ensuring that such activity is conducted in compliance with applicable law, including the NACHA Rules.
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Nth Round is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Nth Round via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. NTH ROUND, ITS OFFICERS, MEMBERS, EMPLOYEES, AND AGENTS SHALL HAVE NO RESPONSIBILITY WHATSOEVER FOR ANY ERROR OR INACCURACY IN ANY INFORMATION MADE AVAILABLE BY THE SERVICES OR FOR ANY DECISIONS USER MAKES AS A RESULT OF USING THE SERVICES OR THE INFORMATION PROVIDED THEREIN.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND NTH ROUND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY NTH ROUND OR ITS LICENSORS, SUPPLIERS, ADVERTISERS, OR DISTRIBUTORS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NTH ROUND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, NTH ROUND MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR NTH ROUND CONTENT IN OR LINKED TO THE SERVICES. NTH ROUND CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. NTH ROUND DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR NTH ROUND CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, NTH ROUND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, NTH ROUND DISCLAIMS ALL WARRANTIES.
If any error results, whether directly or indirectly, from Nth Round’s reliance on User Content or other information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Nth Round reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Nth Round will take commercially reasonable steps to attempt to correct the Resulting Error, but Nth Round makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Nth Round does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Nth Round will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Nth Round works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
User will indemnify and hold harmless Nth Round and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of these Terms; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Nth Round’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with these Terms; (ix) actions or activities that Nth Round or any other Indemnified Party undertakes in connection with the Services or these Terms at the direct request or instruction of anyone that Nth Round or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Nth Round’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Nth Round’s instructions with respect to the Services.
NTH ROUND IS NOT RESPONSIBLE OR LIABLE FOR, AND USER, USER’S ACCOUNT ADMINISTRATORS, AUTHORIZED REPRESENTATIVES, HEIRS, SUCCESSORS, AND ASSIGNS HEREBY IRREVOCABLY RELEASE, RELEASE, DISCHARGE, AND HOLD HARMLESS NTH ROUND, NTH ROUND’S AFFILIATES, AND NTH ROUND’S AND THEIR SUCCESSORS AND ASSIGNS, AND NTH ROUND’S AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT USER MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH (I) USER CONTENT OR ANYONE’S RELIANCE ON USER CONTENT; (II) RESULTING ERRORS OR ANY CONSEQUENCES OR CLAIMS DIRECTLY OR INDIRECTLY ARISING FROM RESULTING ERRORS; (III) ANY CONSEQUENCES OR CLAIMS DIRECTLY OR INDIRECTLY RESULTING FROM USER’S DELAY IN PROVIDING, OR USER’S FAILURE TO PROVIDE, NTH ROUND WITH INFORMATION NECESSARY FOR ITS PROVISION OF SERVICES; (IV) USER’S VIOLATION OF THE NACHA RULES; (V) UNAUTHORIZED THIRD-PARTY ACTIONS TAKEN IN USER’S ACCOUNT AND ANY TRANSACTIONS, CONSEQUENCES, OR CLAIMS ARISING THEREFROM; (VI) USER’S NEGLIGENCE OR ANY NEGLIGENCE OF USER’S ACCOUNT ADMINISTRATOR OR AUTHORIZED REPRESENTATIVE; (VII) ANY CLAIMS, OR PORTIONS OF ANY CLAIMS, THAT COULD HAVE REASONABLY BEEN AVOIDED OR MITIGATED BY USER THROUGH REASONABLE EFFORTS; (VIII) ANY CIRCUMSTANCES OR CLAIMS ARISING OUT OF OR RELATED TO A PARTNER’S USE OF USER’S SHARED INFORMATION; (IX) ANY REQUESTED ACTIONS, OR ANY CONSEQUENCES OR CLAIMS DIRECTLY OR INDIRECTLY RESULTING THEREFROM; (X) USER’S FAILURE, OR THE FAILURE OF ANY ACCOUNT ADMINISTRATORS OR AUTHORIZED REPRESENTATIVES, TO PROPERLY FOLLOW NTH ROUND’S INSTRUCTIONS WITH RESPECT TO THE SERVICES; or (xi) USER OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE SERVICES. USER UNDERSTANDS AND ACKNOWLEDGES THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO USER, AND USER WAIVES USER’S RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. USER UNDERSTANDS THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” BY AGREEING TO THESE TERMS AND THIS WAIVER, USER ASSUMES ALL RISK ARISING FROM YET UNKNOWN CLAIMS.
TO THE EXTENT NOT PROHIBITED BY LAW, NEITHER NTH ROUND (AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS) NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR NTH ROUND CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NTH ROUND HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL NTH ROUND’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO NTH ROUND FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NTH ROUND AND USER.
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Nth Round or User in connection with these Terms, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
The Services and these Terms will continue until they are terminated by either party. User may terminate the Services and these Terms through User’s Account. Nth Round may terminate the Services and these Terms by giving User at least thirty (30) days’ prior written notice. In addition to Nth Round’s foregoing termination right, Nth Round may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and these Terms, in each case with or without notice to User, in the event that: (i) Nth Round has any reason to suspect or believe that User may be in violation of these Terms; (ii) Nth Round determines, in its sole discretion, that User’s actions are likely to cause legal liability for or material negative impact to Nth Round; (iii) Nth Round believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Nth Round has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Nth Round providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Nth Round strives to support a multitude of business and organization types, in certain unique situations, if Nth Round cannot support the filings for User’s business or organization type, Nth Round may immediately terminate the Services and these Terms upon written notice to User.
The termination of any of the Services or these Terms will not affect User’s or Nth Round’s rights with respect to transactions which occurred before termination. Nth Round will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Nth Round’s termination of these Terms. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of these Terms), 4, 5, 6, 12, 14, 15, and 17 through 30 of these Terms, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if These Terms are terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of these Terms, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Nth Round may, in its sole discretion, continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). If/while User has Limited Access Rights, User must secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Nth Round may deny the Limited Access Rights to User, or Nth Round may revoke the Limited Access Rights at any time for any reason, in its sole discretion.
Nth Round may modify these Terms at any time, in Nth Round’s sole discretion. If Nth Round does so, Nth Round shall let User know either by posting the modified Terms on the Platform or Site or through other communications. It is important that User reviews the Terms and the “Last Updated” date at the beginning regularly If User continues to use the Platform or Services after Nth Round has notified User of the modification and the modified Terms have been posted on the Platform or Site, User is indicating to Nth Round that User agrees to be bound by the modified Terms. If User does not agree to be bound by the modified Terms, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Nth Round may change or discontinue all or any part of the Platform, Services, or Nth Round Content at any time and without notice, at Nth Round’s sole discretion.
These Terms shall be interpreted and construed in accordance with the laws of the State of Pennsylvania, without regard to the conflicts of laws principles thereof.
Without limiting User’s waiver and release in Sections 20 and 22, User agrees to the following:
a. Purpose. Any and all Disputes (as defined below) involving User and Nth Round will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 27 (the "Arbitration Provision") shall be broadly interpreted. Notwithstanding anything to the contrary in these Terms, this Section 27 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
b. Definitions. The term "Dispute" means any claim or controversy related to the Services or the Platform, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before these Terms or any prior agreement; (3) claims that arise after the expiration or termination of these Terms; and (4) claims that are currently the subject of purported class action litigation in which User is not a member of a certified class. As used in this Arbitration Provision, "Nth Round" means Nth Round and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “User” means User and any users or beneficiaries of User’s access to the Services or the Platform.
c. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). User may deliver any required or desired notice to Nth Round by mail to 230 S Broad Street, FL 20, Philadelphia PA 19102.
d. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either User or Nth Round may bring an individual action in a small claims court in the area where User accesses the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
e. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when User notifies Nth Round about User’s Dispute. User can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these Terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless User and Nth Round agree otherwise, any arbitration hearing will take place in Philadelphia, PA. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
f. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
g. Arbitration Fees and Costs. If User’s claim seeks more than $75,000 in the aggregate, the payment of the JAMS fees and costs will be governed by the JAMS Rules. If User’s claims seek less than $75,000 in the aggregate, the payment of the JAMS fees and costs will be Nth Round’s responsibility. However, if the arbitrator finds that User’s Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’s fees and costs shall be governed by the JAMS Rules and User shall reimburse Nth Round for all fees and costs that were User’s obligation to pay under the JAMS Rules. User may hire an attorney to represent User in arbitration. User is responsible for User’s attorneys’ fees and additional costs and may only recover User’s attorneys’ fees and costs in the arbitration to the extent that User could in court if the arbitration is decided in User’s favor. Notwithstanding anything in this Arbitration Provision to the contrary, Nth Round will pay all fees and costs that it is required by law to pay.
h. Severability and Waiver of Jury Trial. If any part of subsection (f) of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, USER AND NTH ROUND AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
i. Continuation. This Arbitration Provision will survive the termination or expiration of these Terms.
Nth Round (and its officers, directors, employees, and agents) and its licensors, suppliers, advertisers, and distributors, will not be responsible or liable for any delays or failures in performance from any cause beyond Nth Round’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 20, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Nth Round cannot guarantee that any User Content hosted on a third-party server will remain secure.
These Terms, including all applicable Service Terms, constitutes the entire agreement between Nth Round and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. These Terms may be modified only by a written amendment signed by the parties or as otherwise provided in Section 25. If any part of These Terms are deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of these Terms. The remaining terms will be valid and enforceable. User may not assign these Terms, by operation of law or otherwise, without Nth Round’s prior written consent. Any attempt by User to assign or transfer these Terms, without such consent, will be null. Nth Round may freely assign or transfer these Terms without restriction. The provisions of these Terms shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Nth Round under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Nth Round’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Nth Round. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
These Terms, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of these Terms or (ii) the fact that any signature or acceptance of these Terms was transmitted or communicated through electronic means; and each party forever waives any related defense.
If User has any questions about these Terms, the Platform, or the Services, User may contact Nth Round at support@nthround.com or (215) 469-1848. Nth Round, the provider of the Services, is located at 230 S Broad Street, FL 20, Philadelphia PA 19102. If User is a Pennsylvania resident, User may report complaints regarding the Services by contacting the Pennsylvania Bureau of Consumer Protection at:
Bureau of Consumer Protection
15th Floor, Strawberry Square
Harrisburg, PA 17120
Phone Number: (800) 441-2555
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