Last Updated Date: August 16, 2021
1. OUR SERVICES. Our Platform, and the related Services, are designed to allow End Users to connect their Healthcare Accounts to enable Nayya to access and view healthcare resources (“Account Information”) to provide End Users with relevant information related to End User’s healthcare policies (the “Nayya Outputs”).
1.1 No Medical Records or PHI. You understand that the Services are not— and are not intended to be used as— a medical records or personal health information (“PHI”) repository. End Users are solely responsible for complying with the applicable medical records and/or PHI retention requirements.
1.2 Not Intended as Medical Advice. NAYYA MERELY ACTS AS A VENUE TO CONNECT END USERS WITH HEALTHCARE RESOURCES INFORMATION PROVIDED BY PROVIDERS. NAYYA DOES NOT PROVIDE MEDICAL ADVICE OF ANY KIND OR MAKE CLINICAL, MEDICAL, OR OTHER PROFESSIONAL DECISIONS, INCLUDING ANY DIAGNOSIS OR TREATMENT ITSELF. NO INFORMATION FROM NAYYA SHOULD BE RELIED ON AS
PROFESSIONAL MEDICAL ADVICE. NOTHING PROVIDED BY NAYYA ON THE PLATFORM SHALL BE CONSTRUED AS THE PRACTICE OF MEDICINE OR PROVIDING MEDICAL SERVICES.
2. USE OF THE SERVICES AND NAYYA PROPERTIES. The Platform, the Services, Nayya Outputs, and the information and content available on the Platform and the Services (as these terms are defined herein (collectively, the “Nayya Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Nayya grants you a limited license to reproduce portions of Nayya Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Nayya in a separate license, your right to use any and all Nayya Properties is subject to the Terms.
2.1. Updates. You understand that Nayya Properties are evolving. You acknowledge and agree that Nayya may update Nayya Properties with or without notifying you. You may need to update third-party software from time to time in order to use Nayya Properties.
2.2. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Nayya Properties (including images, text, page layout or form) of Nayya; (b) you shall not use any metatags or other “hidden text” using Nayya’s name or trademarks; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (d) you shall not access Nayya Properties in order to build a similar or competitive website, Platform or service; and (e) except as expressly stated herein, no part of Nayya Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Nayya Properties shall be subject to the Terms. Nayya, its suppliers and service providers reserve all rights not granted in the Terms.
3. POWER OF ATTORNEY.
3.1. Authorization. By using the Service, you authorize Nayya to access your Healthcare Accounts, using account login credentials you provide us, in order to gather Account Information to provide the Nayya Outputs. You acknowledge that this may involve passing information from your Provider’s systems to Nayya. You grant a limited power of attorney to Nayya to do the foregoing on your behalf in connection with the Service. YOU ACKNOWLEDGE AND AGREE THAT WHEN NAYYA IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM PROVIDERS, NAYYA IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE PROVIDER THAT OPERATES THE THIRD PARTY SITE. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services.
3.2. Scope of Power. This limited power of attorney includes the right for Nayya to act as your true and lawful attorney-in-fact and agent, with full power to act for you and in your name, place, and stead, in any and all capacities, to use your Healthcare Account access credentials, to access websites, servers, and accounts, and to access, retrieve, modify, use, and share documents and data, all as necessary or useful to provide the Services or as otherwise contemplated in these Terms, including to offer savings as well as other benefits, and perform periodic reverifications of your credentials or any of the foregoing, with the full power and authority to do anything in connection with such activities that you could lawfully do by an agent.
3.3. Third-Party Beneficiary. You agree that the Providers of your Healthcare Account may rely on the foregoing limited power of attorney, and are authorized to provide Nayya with the access and information Nayya requests in connection with the Service, and are intended third- party beneficiaries of this provision. In the event that Provider attempts to block our access to
your Account Information on your behalf, you hereby authorize us to notify the Provider that you have expressly charged us with the responsibility as your agent to obtain this Account Information on the Provider’s website on your behalf.
3.4. Term of Power of Attorney. This limited power of attorney will remain in effect as long as reasonably necessary for Nayya to provide the Service, unless earlier revoked by you in writing by notice to Nayya (in which case you acknowledge that Nayya will not be responsible for completing the Service, and you will indemnify Nayya for any liability for its resulting failure to do so).
4.1. When registering an account for the Services (“Account”), if necessary, you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Nayya Properties under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Nayya immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Nayya Properties. You further agree that you will not maintain more than one Account for the same Nayya service at any given time. Nayya reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Nayya.
5. RESPONSIBILITY FOR CONTENT.
5.1. Types of Content. You acknowledge that all Content, including Nayya Properties, Nayya Outputs and Account Information, is the sole responsibility of the party from whom such Content originated. This means that you, and not Nayya, are entirely responsible for all Content, including Account Information, that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Nayya Properties (“Your Content”), and that you and other End Users of Nayya Properties, and not Nayya, are similarly responsible for all Content that you and they Make Available through Nayya Properties (“User Content”).
5.2. No Obligation to Pre-Screen Content. You acknowledge that Nayya has no obligation to pre-screen Content, although Nayya reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. In the event that Nayya pre-screens, refuses or removes any Content, you acknowledge that Nayya will do so for Nayya’s benefit, not yours. Without limiting the foregoing, Nayya shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
5.3 Storage. Unless expressly agreed to by Nayya in writing elsewhere or as required by applicable law, Nayya has no obligation to store any of Your Content.
6.1. Nayya Properties. Except with respect to Your Content, you agree that Nayya and its suppliers own all rights, title and interest in Nayya Properties.
6.2. License to Your Content. Subject to any applicable account settings that you select, you grant Nayya a fully paid, royalty-free, worldwide, non-exclusive and sub-licensable right and license to use, reproduce, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing our Services to you. You warrant that the holder of any worldwide intellectual property right, in Your Content. You agree that you, not Nayya, are responsible for all of Your Content that you Make Available on or in Nayya Properties.
6.3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nayya through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Nayya has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nayya a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Nayya Properties.
7. USER CONDUCT.
7.1. As a condition of your use of the Nayya Properties, you agree not to use Nayya Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Nayya Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Nayya’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Nayya; (vi) interferes with or attempt to interfere with the proper functioning of Nayya Properties or uses Nayya Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Nayya Properties, including but not limited to violating or attempting to violate any security features of Nayya Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Nayya Properties, introducing viruses, worms, or similar harmful code into Nayya Properties, or interfering or attempting to interfere with use of Nayya Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Nayya Properties.
8. INTERACTIONS WITH OTHER END USERS.
8.1. User Responsibility. You are solely responsible for your interactions with other End Users, Providers and any other parties with whom you interact; provided, however, that Nayya reserves the right, but has no obligation, to intercede in such disputes. You agree that Nayya will not be responsible for any liability incurred as the result of such interactions.
8.2. Content Provided by Providers. Nayya Properties may contain User Content provided by Providers. Nayya is not responsible for and does not control Content received from Providers (the “Provider Content”). Nayya has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Provider Content.
9. THIRD-PARTY SERVICES.
9.1. Third-Party Websites and Platforms. Nayya Properties may contain links to third-party websites (“Third-Party Websites”) and Platforms (“Third-Party Platforms”). When you click on a link to a Third-Party Website or Third-Party Platform, we will not warn you that you have left Nayya Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Platforms are not under the control of Nayya. Nayya is not responsible for any Third-Party Websites or Third-Party Platforms. Nayya provides these Third-Party Websites and Third-Party Platforms only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Platforms, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third- Party Platforms at your own risk. When you leave our Platform, the Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Platforms, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10.1. You agree to indemnify and hold Nayya and their respective parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Nayya Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Services, including your failure to obtain any necessary consents or rights in order to grant Nayya the rights purportedly granted by you herein. Nayya reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nayya in asserting any available defenses. This provision does not require you to indemnify any of the Nayya Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Nayya Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF NAYYA PROPERTIES IS AT YOUR SOLE RISK, AND NAYYA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NAYYA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PLATFORM.
11.1.a) NAYYA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) NAYYA PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF NAYYA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF NAYYA PROPERTIES WILL BE ACCURATE OR RELIABLE.
11.1.b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH NAYYA PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS NAYYA PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
11.1.c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NAYYA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
11.1.d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NAYYA OR THROUGH NAYYA PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
11.1.e) FROM TIME TO TIME, NAYYA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT NAYYA’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2. Medical Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NO RESPONSIBILITY IS ASSUMED FOR ANY INJURY AND/OR DAMAGE TO PERSONS, ANIMALS, OR PROPERTY AS A MATTER OF PRODUCTS LIABILITY, NEGLIGENCE OR OTHERWISE, OR FROM ANY USE OR OPERATION OF ANY IDEAS, INSTRUCTIONS, METHODS, PRODUCTS, OR PROCEDURES CONTAINED IN THE SERVICES. END USERS SHOULD EXERCISE THEIR OWN INDEPENDENT CLINICAL JUDGMENT. NO SUGGESTED TEST OR PROCEDURE SHOULD BE CARRIED OUT UNLESS, IN THE END USER’S JUDGMENT, ITS USE IS JUSTIFIED. BECAUSE OF RAPID ADVANCES IN THE MEDICAL SCIENCES, WE RECOMMEND THAT THE INDEPENDENT VERIFICATION OF DIAGNOSES, INDICATIONS, AND DRUG DOSAGES SHOULD BE MADE. DISCUSSIONS, VIEWS, AND RECOMMENDATIONS AS TO MEDICAL OR HEALTH CARE PROCEDURES, METHODS, PRODUCTS, CHOICE OF DRUGS, AND DRUG DOSAGES ARE THE RESPONSIBILITY OF THE PROVIDERS AND SHOULD BE CHECKED WITH CURRENT MEDICAL GUIDELINES, HOSPITAL PROCEDURES, AND PHARMACEUTICAL MANUFACTURERS. YOU ACKNOWLEDGE AND AGREE THAT ANY ADVICE PROVIDED TO A PATIENT AS A RESULT OF INFORMATION OBTAINED OR ACCESSED THROUGH THE SERVICES WILL BE BASED ON YOUR OWN MEDICAL JUDGMENT AND NAYYA PARTIES WILL NOT BE LIABLE FOR ANY REVIEW OR LIABILITY THAT RESULTS FROM YOUR ADVICE.
11.3. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NAYYA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NAYYA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.4. No Liability for Conduct of Other End Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER END USERS OF NAYYA PROPERTIES. YOU UNDERSTAND THAT NAYYA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF NAYYA PROPERTIES.
12. LIMITATION OF LIABILITY.
12.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NAYYA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH NAYYA PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NAYYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF NAYYA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE NAYYA PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH NAYYA PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON NAYYA PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO NAYYA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NAYYA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN NAYYA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN NAYYA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2. Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE NAYYA INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
12.3. Cap on Liability. UNDER NO CIRCUMSTANCES WILL NAYYA PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN NAYYA PARTY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY AN NAYYA PARTY’S NEGLIGENCE; OR FOR (2) ANY INJURY CAUSED BY AN NAYYA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4. User Content and Settings. THE NAYYA INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NAYYA AND YOU.
13.1 At its sole discretion, Nayya may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Nayya reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Nayya for Products purchased will remain due. Upon termination of these Terms, all provisions which by their nature are intended to survive termination will survive, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nayya and limits the manner in which you can seek relief from us.
14.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Platform, to any products sold or distributed through the Platform, or to any aspect of your relationship with Nayya, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Nayya may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
14.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to 57 E 11th Street, 4th Fl, NY NY 10003. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined- arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules- comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
14.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Nayya. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non- monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4. WaiverofJuryTrial. YOUANDNAYYAHEREBYWAIVEANYCONSTITUTIONALAND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nayya are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in New York, New York. All other claims shall be arbitrated.
14.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Nayya username (if any), the email address you used to set up your Nayya account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.7. Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
14.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nayya.
14.9. Modification. Notwithstanding any provision in the Terms to the contrary, we agree that if Nayya makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Nayya at the following address: 57 E 11th Street, 4th Fl, NY NY 10003.
15. General Provisions.
15.1. Electronic Communications. The communications between you and Nayya use electronic means, whether you visit Nayya Properties or send Nayya e-mails, or whether Nayya posts notices on Nayya Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Nayya in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nayya provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nayya’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Nayya may freely assign these Terms including its rights herein, in whole or in part, without your prior consent.
15.3. Force Majeure. Nayya shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Nayya Properties, please contact us at: [insert address]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.5. Exclusive Venue. To the extent the parties are permitted under the Terms to initiate litigation in a court, both you and Nayya agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in New York, New York.
15.6. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE PLATFORM OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
15.7. Notice. Where Nayya requires that you provide an e-mail address, you are responsible for providing Nayya with your most current e-mail address. In the event that the last e-mail address you provided to Nayya is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Nayya’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nayya at the following address: 57 E 11th Street, 4th Fl, NY NY 10003. Such notice shall be deemed given when received by Nayya by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.8. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.9. Severability. If any portion of these Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.10. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15.11. Entire Terms. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.