THE FOLLOWING TERMS OF SERVICE CONSTITUTE A LEGAL AGREEMENT - PLEASE READ THEM CAREFULLY.
The following terms of service (these "Terms of Service" or this "Agreement") shall govern the provision by. NPCreate, Inc., a United States corporation incorporated in the State of New York (together with its subsidiaries and affiliates, "NPCreate"), to you ("User"), of the services described and offered on our website www.YourBizWall.com, including, but not limited to the use of our online portal site www.YourBizWall.com ("YourBizWall"), the use of our web-based software solution service that provides a means for the creation of individual customizable Internet websites (the "Software"), the creation, operation and usage of individual User websites ("User Site" or "User Sites"), website hosting and serving services provided to Users by NPCreate, all available services, tools and functionality related to either YourBizWall and/or such User Sites, including but not limited to blogs, forums, chat rooms, (the "Communication Services"), personal email accounts connected to User Sites (the "E-mail Services"), and all products and services offered by NPCreate through YourBizWall, as the same may be altered or modified from time-to-time by NPCreate in its sole discretion (collectively referred to hereinafter as the "Services").
Changes to this Agreement will be posted on http://www.YourBizWall.com/NPCchanges.html our website at www.YourBizWall.com. User hereby acknowledges and agrees that User's continued use of the Services after revisions to this Agreement are posted shall evidence User's acceptance of the changes to this Agreement.
1. Personal Use of Services. User acknowledges and agrees that the access and utilization of the Services are for User's personal use. User shall not create derivative works of, or make commercial use of the Services or the Software. User shall not, or attempt to (or otherwise authorize, encourage or support others" attempts to), circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Services, the Software or any password owned or controlled by NPCreate or any other user of the Services or the Software.
2. Registration and Use of Services.
(b) Domain Name Registration: In the event User requires a domain name to be used in conjunction with a User Site, NPCreate shall select independent third party domain name vendors ("Domain Name Vendor"), which are ICANN accredited registrars, to provide domain name registration services. User hereby authorizes NPCreate, to transfer in or acquire User's selected domain name from a Domain Name Vendor ("Domain Name(s)"), as requested by User. By using the Domain Name, User acknowledges acceptance of the Domain Name Vendor's terms of service, which the Domain Name Vendor may change at any time in their sole discretion. User understands that User is creating a separate contractual relationship between User and the Domain Name Vendor, and that User, and not NPCreate, is responsible for all liability, and obligations in connection with that relationship. If, after registering one or more Domain Names through NPCreate, User decides to delete a previously registered Domain Name and subsequently register one or more additional different Domain Names, User will be charged for any resulting Domain Name registration fees. In the event User provides NPCreate with a Domain Name to be used in conjunction with a User Site, User hereby represents, warrants and affirms that it is the sole owner of any such Domain Name to be utilized.
[User] will be listed as the registrant and administrative contact in connection with User's Domain Name, provided that NPCreate may temporarily list itself as the registrant and administrative contact in the event that NPCreate, in its sole discretion, changes to a different Domain Name Vendor. Until the Domain Name Vendor change is completed. User authorizes NPCreate to list itself as the billing contact, technical contact, and name servers in connection with User's Domain Name and to take any actions NPCreate deems appropriate in those capacities. NPCreate shall have the right in its sole discretion to work with any Domain Name Vendor of its choosing at any time.
Upon the termination of the Services (as provided in this Agreement), NPCreate will immediately cease acting in any capacity on User's behalf with respect to Domain Names, including switching registrars. After termination, NPCreate will not be responsible to forward any notices, emails or other correspondence to User or to take any other actions in connection with User's Domain Name. In the event that NPCreate suspends User's account for lack of payment or any other reason, NPCreate shall not renew any Domain Names that may become due for renewal during the suspension of the account. User will be solely responsible for all ongoing fees, as well as removing NPCreate as the billing, technical contact and name servers in connection with User's Domain Name.
(c) Fees: NPCreate shall charge User specified fees in accordance with the Services package selected by User upon registration. Any and all one-time fees, including without limitation, setup fees, registration fees and/or domain name fees, shall be paid by User to NPCreate prior to NPCreate providing any such services ("One-Time Fees"). Any and all monthly fees including without limitation, monthly hosting and maintenance fees shall be paid by User to NPCreate in advance on a monthly basis ("Monthly Fees"). NPCreate reserves the right in its sole discretion to change any payment increments/intervals or require User to prepay any and all fees, including without limitation, all One-Time Fees and Monthly Fees which are due during the course of a 12 month period of membership up front and in one lump sum prior to usage. In such an event, NPCreate reserves the right, but shall in no way be obligated, to offer discount pricing for any lump sum payments. All One-Time Fees and Monthly Fees paid by User to NPCreate shall be non-refundable, except as otherwise expressly agreed to by NPCreate in these Terms of Service. By accepting these Terms of Service User grants NPCreate the right to automatically renew the Services each month or annually (whichever is applicable) until either Party terminates this Agreement. User also authorizes NPCreate to charge all of the One-Time Fees and Monthly Fees for the Services to the credit card that User has provided NPCreate in accordance with the then applicable fee and payment schedule at http://www.YourBizWall.com.
User agrees to provide NPCreate with prompt notice of any change in User's contact information, including company name, address, telephone number, e-mail address, or the credit card utilized for the payment of Services. Failure to keep User's credit card information up-to-date may cause an interruption in User's Service. NPCreate accepts no liability for cancelled service and any resulting damages incurred as the result of bad, expired, or inaccurate credit card information. User shall notify NPCreate of any billing issues within fifteen days (15) days of User's receipt of any credit card statement reflecting a potentially erroneous charge.
NPCreate will provide fifteen (15) days notice of any changes in One-Time Fees and/or Monthly Fees on the YourBizWall website and will make every reasonable effort to notify User by e-mail. All One-Time Fees and/or Monthly Fees are subject to change at NPCreate's sole discretion at any time. User shall be liable for any applicable federal, state, and local taxes related to User's use of the Services. .
(d) Service Availability: NPCreate does not guarantee to support any particular browsing platform, but NPCreate expect to support Firefox 3.0, Safari 3.0, IE 6.0+. NPCreate shall make reasonable efforts to ensure that the Services shall be accessible to User via Internet on a twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of the Services due to causes beyond NPCreate's reasonable control, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. NPCreate may, at its own discretion, temporarily suspend all Services for the purpose of repair, maintenance or improvement of any of NPCreate's systems. NPCreate shall provide prior notice of loss or interruption of Service where reasonably practicable under the circumstances (but shall bear no liability to User for its failure to so) and shall restore service as soon as is reasonably practical. User shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage.
The parties expressly acknowledge that Internet servers and links are susceptible to crashes and downtime. NPCreate shall use reasonable efforts to maintain a consistent link with the Internet and provide User with access to the Services, but NPCreate cannot and does not warrant that it shall maintain a continuous and uninterrupted link. User hereby agrees that User shall be responsible for maintaining backup copies of all the contents of its User Site. NPCreate shall bear no liability whatsoever to User or User's clients or site visitors in the event there is any down time or loss of data related to the Services or in the event NPCreate's systems fail.
(e) User Registration: User shall: (i) provide true, accurate and complete information about User as prompted by the registration form ("Registration Data") and (ii) maintain and promptly update all Registration Data to keep it true, accurate, current and complete. If NPCreate has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, NPCreate has the right to suspend or terminate User's account and refuse any and all current or future use of the Services (or any portion thereof). User acknowledges and agrees that NPCreate may rely on the Registration Data to send User important information and notices regarding its account and the Services. NPCreate shall have no liability associated with or arising from User's failure to maintain accurate Registration Data, including, but not limited to, User's failure to receive critical information about the Services or its account. User further agrees that NPCreate (ourselves or through third party service providers) is authorized to verify such Registration Data.
(f) Passwords and Accounts: User hereby acknowledges that User is solely responsible for all content, goods, and services offered on a User Site, all materials used or displayed on a User Site and all acts or omissions that occur through a User Site or in connection with a User's account or password. If User is required to establish an account and obtain a password User shall be solely responsible for maintaining the confidentiality of its password and must immediately notify NPCreate of any unauthorized use of its account and/or password. User acknowledges and agrees that it is responsible for any unauthorized activities, charges and/or liabilities made through the use of its password. In no event will NPCreate be liable for the unauthorized use or misuse of User's password. Violation of this provision will be cause for immediate termination of User's Services.
(g) Email Services: In the event NPCreate, in its sole discretion, offers e-mail services to User as part of the Services to be offered, the following terms shall apply. User shall be solely responsible for the content of transmissions through the email service offered by NPCreate in conjunction with the Services (the "E-mail Services"). Under User's existing NPCreate Registration Data, NPCreate shall provide User with a user name, a password, up to a maximum of 1of e-mail addresses, links through NPCreate's Internet server, and e-mail storage on NPCreate's servers. User will be limited to up to a total of 5 megabytes for e-mail storage on NPCreate's servers across all accounts. As agreed upon in these Terms and Conditions, User shall at all times adhere to NPCreate's then current policies concerning the security and proper usage of User accounts and passwords.
User hereby agrees to comply with all applicable local, state, federal/national and international laws and regulations regarding e-mail communications and usage in conjunction with the usage of the E-mail Services. User further agrees to comply with applicable U.S. laws regarding the transmission of technical data exported from the United States through the E-mail Services and not to use the E-mail Services for any illegal purposes or to interfere with or disrupt the E-mail Services. User hereby further agrees not to transmit through the E-mail Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind. Without limiting the foregoing, User hereby acknowledges and agrees that NPCreate may terminate any and all of User's e-mail or E-mail Services accounts, which NPCreate, in its sole discretion, believes is not in compliance with the foregoing or is transmitting or otherwise connected with spam or other unsolicited bulk e-mail. NPCreate automatically blocks e-mail transmissions and receptions if User's storage space on NPCreate's servers exceeds 20 megabytes for images only and 50 megabytes for videos and images. .
(h) Intellectual Property Infringement Policy: Through the utilization of the Services, NPCreate will provide User with the ability to upload/post materials, including without limitation, User Content (as defined above), User Site designs and/or layout plans, or any other forms of content or materials not otherwise supplied by NPCreate ("User Submitted Materials") on YourBizWall or the User Sites, and to further post any such materials in public areas of either YourBizWall or the User Sites via the Communication Services (as defined above). By uploading or posting any such User Submitted Materials, User automatically agrees to (A) permit NPCreate to monitor, intercept, store, use or reproduce any such information or data posted by User, and User hereby consents to the foregoing, and (B) indemnify NPCreate (including its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders, contractors, agents, employees, licensors and assigns) from and against any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees, resulting from User's breach of this Agreement.
By uploading and/or posting any User Submitted Materials, User automatically (i) grants to all other YourBizWall users, and any other person or entity affiliated with such YourBizWall users, a perpetual, royalty-free, irrevocable and unrestricted worldwide right and license to use, reproduce, and distribute the User Submitted Materials for the limited purposes of discussion and commentary, (ii) grants to NPCreate a perpetual, royalty-free, irrevocable and unrestricted worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from and distribute the User Submitted Materials and incorporate the User Submitted Materials into any form, medium, or technology now known or later developed and (iii) waives all "moral rights" with respect to the posted content. User further represents, warrants and affirms that User owns or has the necessary licenses, rights, consents, and permissions to use and authorize NPCreate to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submitted Materials and to enable inclusion and use of the User Submitted Materials in the manner contemplated by NPCreate, Whirteartwall.com and these Terms of Service.
NPCreate cannot review links that may be embedded in User Submitted Materials posted in YourBizWall, User Sites, and/or via the Communication Services. NPCreate is not responsible for the privacy practices or the content of any linked materials, whether or not they are affiliated with NPCreate. It is the sole responsibility of User to ensure that any and all User Submitted Materials User posts or uploads do not infringe or violate the intellectual property rights, publicity, privacy or other legal rights of third parties. User's postings will not be reviewed, screened or approved for such violations by NPCreate. NPCreate complies with the provisions of the Digital Millennium Copyright Act of 1998, 17 U.S.C. Sec. 512. Pursuant to that Act, NPCreate will promptly remove posted materials in the event a copyright owner provides proper notification to us alleging that the posted materials constitute infringement. If your postings are removed under this procedure, NPCreate will notify User and provide the opportunity for User to response as provided under the Act. The Digital Millennium Copyright Act is available at the Copyright Office's web site http://lcweb.loc.gov/copyright/.
Furthermore, User hereby acknowledges that the information and opinions expressed in User Submitted Materials posted by other users via Communication Services (as defined above), are not necessarily those of NPCreate and NPCreate makes no representations or warranties regarding such posted materials. User further acknowledges that User shall have the ability to make certain materials publicly available through the utilization of such Communication Services and that any such communications are public, and not private communications. If User voluntarily discloses personal information via Communication Services, that information can be collected and used by others and may result in unsolicited messages from other people. User shall not submit, upload, store, transmit or post to YourBizWall or User Sites, via Communication Services, or otherwise, any content which in the sole opinion of NPCreate:
(1) libels, defames, invades privacy, or is obscene, pornographic, abusive, or threatening;
(2) infringes any intellectual property or other right of any person or entity, including but not limited to, violating anyone's copyrights or trademarks;
(3) falsifies or deletes author attributions, legal notices or other proprietary designations;
(4) violates any law;
(5) advocates illegal activity;
(6) knowingly contains viruses, corrupted files, or other materials that may cause damage to another's computer, or
(7) advertises or otherwise solicits funds or sales of goods or services except as authorized by NPCreate.
(i) Service Changes: NPCreate reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Services, or portions thereof, with or without notice to User.
(j) Third Party Providers: NPCreate may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. USER ACKNOWLEDGES AND AGREES THAT NPCREATE SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES.
3. Prohibited Content & Conduct User shall not allow the posting, transmission, or storage of data or content on or through YourBizWall, the User Sites, the Services, NPCreate network or its physical infrastructure which in NPCreate's sole determination, constitutes a violation of any federal, state, local or international law, regulation, ordinance, court order or other legal process applicable to NPCreate ("Applicable Law"). User shall be responsible for determining which Applicable Laws are applicable to their use of YourBizWall, the User Sites, the Services or any portions thereof. Prohibited content includes, without limitation, (a) content or code that facilitates any violation of, or describe ways to violate, these Terms of Service, or (b) "harvested" addresses or information, (c) "phishing" messages, or (d) "spamvertising" messages.
A User shall not knowingly use YourBizWall, the User Sites, the Services or any portions thereof or transmit over NPCreate's network, any material that may constitute child pornography. In addition to any other actions it may take under this Agreement, NPCreate reserves the right to cooperate fully with any criminal investigation of content transmitted using YourBizWall, the User Sites, the Services, or any portion thereof or located on a server owned or controlled by NPCreate that constitutes alleged child pornography or an alleged violation of Applicable Law.
4. Software License. NPCreate hereby grants to User, and User hereby accepts, a personal, limited, non-exclusive, non-transferable, revocable right and license to use the Services solely for User's own personal non-commercial use. User further acknowledges and agrees that it may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available any content or the Services, except as expressly provided in this Agreement. No license is granted to User by this Agreement in the human readable code, known as the source code, of any content or the Services, and no rights are granted to User by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of such content or the Services. NPCreate may terminate this Agreement immediately for its convenience upon notifying User, which notice may be delivered to User by NPCreate using the Services. This Agreement will terminate immediately, without notice, if User fails to comply with any term or condition of this Agreement or breaches any term or condition of this Agreement. Upon a termination of this Agreement, User shall immediately remove all content and will cease accessing or using the Services.
5. Privacy. User acknowledges that NPCreate may collect and process "personal information" (i.e. information that could be used to contact you, such as full name, postal address, phone number or e-mail address), "financial information" (i.e. credit card numbers, bank account information or passwords) or "demographic and usage information" (i.e. information that you submit, or that we collect, that is neither personal information nor financial information but necessary for the proper functioning and billing of our Services, such as the date regarding the start and end and the extent of your usage of the service), in connection with the Services. NPCreate may disclose your personal information, financial information and or demographic and usage information to secure collection of fees and such information collected by NPCreate may be stored and processed in the United States or any other country in which NPCreate or its agents maintain facilities. By using the Services, User consents to any such disclosure or transfer of information outside of your country. User's personal information, financial information and demographic information will be deleted no later than 1 month after termination of this Agreement. NPCreate may store your information beyond this date if that is required by law or contract and may make your information available to others when compelled by court order.
6. Indemnification. User agrees to release, indemnify, defend and hold harmless NPCreate, its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of or in connection with (a) User's use of the Services, or (b) the breach by User of User's representations and warranties set forth herein.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES.
USER UNDERSTANDS AND AGREES THAT ITS USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO THE SOFTWARE, USER SITES, AND ANY CONTENT DOWNLOADED, IS SOLEY AT USER'S OWN RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT MAY RESULT FROM ITS USE OR DOWNLOAD. USER AGREES THAT THE SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE EXPRESSLY NOTED IN THIS AGREEMENT. NPCREATE EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE DATA AND CONTENT TRANSMITTED THROUGH OR INTERMEDIATELY, TEMPORARILY OR PERMANENTLY STORED ON NPCREATE'S NETWORK, YourBizWall, USER SITES, OR ANY SERVER OWNED OR CONTROLED BY NPCREATE, AND FOR THE ACTIONS OR OMISSION OF USERS. USER ACKNOWLEDGES AND AGREES THAT NPCREATE SHALL HAVE NO LIABILITY TO USER, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SERVICES OR SOFTWARE, OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION, ANY SERVICE DOWNTIMES OR DISRUPTIONS. NPCREATE EXPRESSLY DISCLAIMS ALL REPRESETATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NPCREATE MAKES NO WARRANTIES THAT THE SERVICES OR SOFTWARE WILL MEET USER'S REQUIREMENTS, OR THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM NPCREATE OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. USER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, USER AGREES THAT NPCREATE'S ENTIRE LIABILITY TO USER OR ANY THIRD PERSON, AND USER'S OR ANY THIRD PERSON'S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND SOFTWARE PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO RECOVERY OF AN AMOUNT NOT TO EXCEED THE LESSER OF THE AMOUNT WHICH NPCREATE COLLECTED AS A FEE FOR SERVICES PROVIDED DURING THE PAST THIRTY (30) DAYS PRIOR TO ANY SUCH LIABILITY BEING CONCLUSIVELY ESTABLISHED AGAINST NPCREATE OR ONE-HUNDRED ($100.00) DOLLARS (US). EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, NPCREATE, ITS SUBSIDIARIES, AFFILATES, LICENSORS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS AND EMPLOYEES (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICES OR SOFTWARE) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF NPCREATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE OR COUNTRY DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN NPCREATE'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES OR COUNTRIES.
8. Intellectual Property Rights. Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services ("Company Intellectual Property Rights") are owned by NPCreate or its licensors, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights. User acknowledges that no title to the Company Intellectual Property Rights is transferred to User, and that User does not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this Agreement.
9. Termination and Cancellation of Services. To cancel your registration to use the Services, login into YourBizWall, and go to "my account" page and select "cancel the subscription". The termination shall become effective within 5 business days. User agrees that NPCreate, at its sole discretion, may at any time immediately terminate this Agreement and User's use of the Services and Software, without notice to User or obligation to refund any amounts paid by User, with or without cause or reason. Notwithstanding the foregoing, in the event User opts to prepay all One Time Fees and Monthly Fees due over a 12 month membership period upfront, and User seeks to cancel his/her membership a minimum of five months after registration, NPCreate will charge user a one-time $30.00 dollar cancellation fee, and will charge User for the remainder of the month during which the cancellation is effective and will refund to User the balance of any unused Monthly Fees for the remainder of the term. User agrees that upon termination of its access to the Services and Software under any provision of this Agreement, NPCreate may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files, the Services or the Software. Further, User agrees that NPCreate shall not be liable to you or any third party for any termination of your access to the Services or Software. If User cancels its account or Service for any reason, NPCreate will not be obligated to refund any of the fees paid by User
10. Miscellaneous Provisions
(a) Notices and Announcements. Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
117 Grattan Street #104
Brooklyn, New York 11237
United States of America
NPCreate shall serve notices related to this Agreement by sending them to User at the postal address or e-mail address given to NPCreate upon registration associated with its account. Notices sent by mail shall be deemed received seven days after they were sent. Notices sent by e-mail or as a text message shall be deemed received on the weekday following the day when they were posted or sent.
(b) Severability. User agrees that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
(d) Assignment and Resale. Except as otherwise set forth herein, User's rights under this Agreement are not assignable or transferable. User agrees not to resell the Services or any portion thereof.
(e) Governing Law. This Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of New York, United States of America, excluding its conflict of laws rules. User and NPCreate each hereby submit to the exclusive subject matter jurisdiction, exclusive personal jurisdiction and exclusive venue of the United States District Courts in the Eastern District of the State of New York, specifically located in Brooklyn, New York, for any disputes between User and NPCreate under or arising out of this Agreement. If there is no jurisdiction in the United States District Court for the Eastern District of New York, in [Brooklyn], New York, for any disputes between User and NPCreate under or arising out of this Agreement then User and NPCreate hereby agree that jurisdiction shall be in the state courts of Kings County, New York. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(f) Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of NPCreate. The remedies of NPCreate under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
(g) Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
(h) Survival. In the event this Agreement terminates for any reason whatsoever as provided herein, Sections 2(h), 5, 6, 7, 8, 9 and 10 of this Agreement shall survive such expiration or termination.