Terms of use

Last Updated: February 21, 2023

Welcome to Nophin. Please review these Terms of Use (“Terms of Use”) before using or accessing the website located at nophin.com and any subdomain thereof (the “Site”). To make these Terms of Use easier to read, the Site, and services and applications accessible via the Site, are collectively called the “Services”. If you are accessing the Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms of Use, and "User" (or “you” and “your” as the context may require) will refer to that entity. By accessing the Site or using Nophin’s Services, you agree to be bound by the Terms of Use and the Sections herein, including, but not limited to, Mandatory Arbitration and Class Action Waiver. If you do not agree to these Terms of Use, you should not use the Services.

The Services are operated by Nophin Inc., a Delaware corporation (the “Company", "Nophin", "we" or "us"). By accessing or using the Services, you, the User, signify that you have read, understand and agree to be bound by these Terms of Use. In addition to these Terms of Use, you may enter into other agreements with us that will govern your use of specific aspects of the Services offered by us, including factoring Services described below (collectively, “Other Agreements”). Your receipt and participation in such Services are subject to your execution of such Other Agreements, as requested by Nophin in its sole discretion. Terms and conditions of Other Agreements may vary from User to User. If there is any contradiction between these Terms of Use and any Other Agreement you enter into for specific Services, the Other Agreement shall take precedence in relation to the specific aspects of the Services to which it applies, unless otherwise stated therein.

IMPORTANT: PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND NOPHIN CAN BE BROUGHT, INCLUDING AN ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH NOPHIN ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION (AS DESCRIBED BELOW). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

CHANGES TO THESE TERMS OF USE

We may make changes to these Terms of Use from time to time. If we do this, we will post the changed Terms of Use at this URL or on the Site and will indicate at the top of this page the date the Terms of Use were last revised. You understand and agree that your continued use of the Services after we have made any such changes constitutes your acceptance of the new Terms of Use.

ELIGIBILITY, COMMUNICATIONS, AND LICENSE

Eligibility: General

The Services are intended for residential landlords based in the United States that are in good standing in each jurisdiction in which they are registered to conduct business and that are not otherwise barred from using the Services under applicable law. The Services are generally not available to consumers, people or entities that reside outside the United States, or individuals under the age of 18. If you violate any of these Terms of Use, or otherwise violate an agreement between you and us, the Company may terminate your access and use of Services, and delete your account and any content or information that you have posted on the Services or prohibit you from using or accessing the Services (or any portion, aspect or feature of the Services), at any time in its sole discretion, with or without notice.

Electronic Transactions and Disclosures

Because Nophin operates only on the Internet, you acknowledge that, should you use the Services, it is necessary to transact business with us online and electronically. As part of doing business with Nophin, you acknowledge and agree that it is necessary to give you certain disclosures electronically, either via our Site or the email address you provide to us. By agreeing to the Terms of Use, you agree to receive electronically all documents, communications, notices, contracts, and agreements arising from or relating to your use of the Services, Other Agreements, and your registration as a customer (each, a "Disclosure"). The decision to do business with us electronically is yours. This document informs you of your rights concerning Disclosures.

CUSTOMER COMMUNICATIONS: By accepting these Terms of Use, you acknowledge that it is necessary to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes in connection with the provision of the Services, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You certify, warrant and represent that the telephone numbers that you have provided to us are your numbers and do not relate to another individual or business. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number.

To unsubscribe from text messages at any time, reply STOP to any text message you receive from Nophin. You acknowledge that following such a request to unsubscribe, you may receive one final text message from Nophin confirming your request. For help, contact us at support@nophin.com.

CALL RECORDING AND MONITORING: You acknowledge that is necessary for us to record and monitor, for quality assurance, training, risk management and/or collection purposes, any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.

DISCLOSURES. Any Disclosures will be provided to you electronically through our Site or via electronic mail to the email address you provide upon registration. If you require paper copies of such Disclosures, please email us at support@nophin.com. Your receipt of Disclosures and ability to transact business electronically, and our agreement to do so, applies to any transactions to which such Disclosures relate. This will remain in effect for so long as you are a User and, if you are no longer a User, will continue until such a time as all Disclosures relevant to transactions that occurred while you were a User have been made. You can contact us via email at support@nophin.com. You must keep us informed of any change to your email address, telephone number, and primary address.

Proprietary Rights in Services Content; Limited License

All content provided through the Services, including but not limited to designs, text, graphics, data, analyses, information, pictures, functionalities, menus, navigation, video, information, software, music, sound and other source files, and their selection, look-and-feel, arrangement, and corresponding source code (the "Services Content"), are the property of the Company or its licensors with all rights reserved. No Services Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, licensed, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except as provided in the following sentence and except that the foregoing does not apply to your own User Content (as defined below). Provided that you are eligible for use of the Services, you are granted a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services Content via the functionalities provided, solely for your personal use in connection with your use of the Services. Except for your own User Content (as defined below), you may not republish Services Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Services Content is strictly prohibited. Any use of the Services or the Services Content other than as specifically authorized herein, without the prior written permission of the Company, is strictly prohibited and, without prejudice to any other rights available to Nophin, will terminate the license granted herein. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable by us at any time without notice and with or without cause.

REGISTRATION FOR THE SERVICES

For certain features of the Services, you’ll need an account. To create an account you will need to provide a valid email address, SSN, phone number, mailing address, and bank data. We may ask for additional information for your account when you request certain Services.

Registration Data; Account Security

In consideration of your use of the Services, you agree to (a) provide accurate, current and complete information about you and your business, in each case as may be prompted by any registration forms on the Site or otherwise requested by the Company ("Registration Data"), including the individual or entity's full legal name; (b) provide such materials as the Company may request to establish or verify your authority to enter into binding agreements, your legal existence, your good standing in any jurisdiction, and your eligibility to use the Services; (c) maintain the security of your account; (d) maintain and promptly update the Registration Data, and any other information you provide to the Company, to keep it accurate, current, and complete; (e) promptly notify the Company regarding any material changes to information or circumstances that could affect your eligibility to continue to use the Services or the terms on which you use the Services; and (f) be fully responsible for all use of your account and for any actions that take place using your account. In the event that a third party gains access to your account, you should notify us immediately by emailing support@nophin.com. We are not liable for any loss resulting from your failure to protect the confidentiality of your account.

Furthermore, you agree that you will not represent or portray your business or entity as being affiliated with the Company in any capacity, other than being a User of the Services, without the Company's prior written consent.

Factoring & Information Reporting

As part of its Services, Nophin offers landlords the opportunity to sell future rent receivables to Nophin in exchange for an upfront payment, sometimes called “factoring.” We require you to provide information in connection with these Services to verify your identity and eligibility. For example, we may ask for your legal name, phone number, mailing address, date of birth, last four digits of your SSN/EIN, images of a government-issued ID, and copies of underlying lease agreement(s) with your tenant(s). Additionally, you will grant (or procure the grant of) such access as Nophin may require to connect to appropriate data sources to verify your information and eligibility, including (without limitation) third-party payroll services, banks, “know-your-customer” (KYC) services, software, and property database providers (collectively, the “KYC Partners”). You will provide, and shall cause any such KYC Partner to provide, Nophin with all necessary cooperation in connection with the same. The supply of the Services by Nophin may be conditional upon such access and cooperation, and Nophin reserves the right to deny you Services at any time for any lawful purpose. You acknowledge and agree that the information you provide to us or our KYC Partners is accurate and complete. You further represent and warrant that you have all requisite right and authority to disclose such information to Nophin.

You expressly authorize Nophin and KYC Partners to obtain (for itself or on behalf of Nophin) or share business financial reports from financial reporting agencies about you (1) when you request to use Services, (2) periodically throughout the term of your use of our Services, or (3) from time to time in connection with any other services that we offer or that you may obtain from us, including, without limitation, your Nophin account.

In each case you expressly authorize us and each KYC Partner to use such business financial reports about you, and information derived therefrom, in connection with:

factoring Services we might offer you, including determining your eligibility, servicing or maintaining your account, verifying your identity, verifying information you provide to Nophin, and for collecting any amount you owe us or any of our respective successors or assigns; and
our internal use, including to develop, improve, analyze, study, and maintain products and services we offer or may offer through the Nophin Services.

You further authorize us and each KYC Partner to disclose information you provide to Nophin’s service providers that fund or underwrite any Other Agreements you execute with Nophin.

You understand that Nophin or its KYC Partners may report information about your factoring activity (such as on-time, late, and missed payments and any defaults) to debt service providers, and that such information may be reflected in your business financial history.

RESTRICTIONS ON USE

You agree not to use the Services to:

use the Services in any fraudulent or otherwise unlawful manner or in any other manner that could damage, disable, overburden or impair the Services;
upload, post, transmit, share, store or otherwise make available any content that we deem (in our sole discretion) to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
except where authorized by the Company, register for more than one User account, or operate a User account on behalf of or for the benefit of any person or entity who is not eligible to register for or operate a User account in their own name;
operate or otherwise utilize an account for any purpose prohibited by law or regulation, any activity which you are not duly authorized to conduct, or for any purpose prohibited by any other agreement between you and the Company;
impersonate any person or entity, or falsely state or otherwise misrepresent yourself, or your affiliation with or authority to act on behalf of any person or entity;
upload, post, transmit, share or otherwise make available any material that contains software viruses or any other malicious or tracking computer code, files or programs designed to track, interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
use or attempt to use another's account, service or system without authorization from that person and the Company, or create a false identity on the Services;
decompile, disassemble, circumvent the security of, or derive the source code of the Services, or remove any proprietary notices contained in the Services’ code; or
upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose the Company or its users to any harm or liability of any type;
use any automated means to access this Site or collect any information from the Services (including, without limitation, robots, spiders, scripts or other automatic devices or programs);
frame the Site, utilize framing techniques to enclose any Services Content or other proprietary information, place pop-up windows over this Site's pages, or otherwise affect the display of this Site's pages;
engage in the practices of "screen scraping," "database scraping" or any other activity with the purpose of obtaining content or other information;
use the Services to collect or derive any contact information of Users or upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of commercial or non-commercial solicitation or bulk communications of any kind to any Nophin member or third party;
use data provided by Nophin, provided in any manner whatsoever, for any competing uses or purposes; or
use the Services in any manner that violates applicable law or that could damage, disable, overburden, or impair these Services or interfere with any other party's use and enjoyment of these Services.

Except where otherwise provided in Other Agreements, we may terminate, disable or throttle your access to, or use of, the Services at any time without notice for any reason, with or without cause at Nophin’s sole discretion.

The following provisions of these Terms of Use shall survive termination of your use or access to the Services: the sections concerning “User Content”, “Disclaimers”, “Indemnity”, “Limitation on Liability”, “Governing Law and Jurisdiction”, “Mandatory Arbitration”, Class Action Waiver”, “Other Terms”, “Notices”, and any other provision that by its terms survives termination of your use or access to the Services.

USER CONTENT

You are solely responsible for the personal or business information, photos, profiles, messages, notes, text, information, music, video, contact information for you or others, advertisements or other content that you upload, publish, provide or display (hereinafter, "post") on or through the Services (collectively the "User Content"). You understand and agree that the Company may, but is not obligated to, review and delete or remove (without notice) any User Content in its sole discretion, including without limitation, User Content that in the sole judgment of the Company violates these Terms of Use, might be offensive or illegal, or might violate the rights of, harm, or threaten the safety of, other users or others.

By posting User Content on or through the Services, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, royalty-free, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, modify, create derivative works, reformat, translate, excerpt (in whole or in part) and distribute such User Content in connection with operating and providing the Services, including in connection with underwriting, risk management, and marketing activities. You may remove your User Content from the Services at any time. If you choose to remove your User Content, the license granted above will not expire.

You represent and warrant that User Content and any materials of any kind submitted through your account or otherwise posted or shared by you through the Services will not violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory, fraudulent or otherwise unlawful material.

INFORMATION WE MAY PROVIDE TO YOU; SERVICES WE DO NOT PROVIDE

As part of our Services, we may provide you with analysis or estimates. Any such information is illustrative and for informational purposes only. We base our analysis and estimates on certain assumptions and data that might be available to us. Our analysis and estimates are uniquely ours and are not endorsed by any third-party partner. Furthermore, any analysis or estimate is determined by our own proprietary methodology. As such, we may change, alter, or modify any methodology at any time and elect to emphasize, ignore, or alter certain factors in our sole and absolute discretion.

You acknowledge and agree that Nophin is not a property manager or financial advisor. Nophin cannot and will not make decisions for you or on your behalf in connection with your use of our Services. You are solely responsible for the management and upkeep of your properties.

Our Services are intended to be used within the United States. We make no representations or warranties that the information, products, or services provided through our Services, or Services Content, are appropriate for other jurisdictions. If necessary, we reserve the right to limit the availability of our Services to any person, geographic area, or jurisdiction, at any time and in our sole discretion.

FEES AND PAYMENTS; CANCELLATION

Fees and Payments

You agree to pay for the Services you use on the Site in accordance with the pricing and payment terms presented to you for our Services. Fees paid by you are non-refundable. For subscriptions, you will be billed in advance on a recurring monthly cycle. We reserve the right to modify our fees at any time, upon written notice to you or updating the pricing stated on our Site.

Cancellation Policy

If you have signed up for a subscription service, your subscription will automatically renew for the same duration at the end of each period unless you cancel at least 30 days before your next renewal date. If you decide to cancel, no refund will be provided for fees paid or past bills, and your service will remain active through the end of the subscription period. At the end of the subscription period, you will no longer be charged for cancelled services.

INTELLECTUAL PROPERTY MATTERS

Trademarks

The name NophinTM and other Company graphics, logos, slogans, trade names, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of the Company in the U.S. and/or other countries. The Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

Copyright Complaints

If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to support@nophin.com.

Submissions

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services ("Submissions"), provided by you to the Company are non-confidential and shall become the sole property of the Company. The Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

MISCELLANEOUS TERMS

‍Links to Other Web Sites and Content

The Site contains (or you may be sent through the Services) links to other websites ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, software and other content belonging to or originating from third parties (the "Third Party Content"). Such Third-Party Sites and Third-Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Sites or Third Party Content accessed through the Services, including without limitation the content, accuracy, offensiveness, opinions, reliability or policies of or contained in the Third-Party Sites or the Third-Party Content. Inclusion of or linking to any Third-Party Site or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Sites, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.

Privacy

Nophin processes personal data in accordance with our Privacy Policy. By using our Services, you consent to the practices stated in our Privacy Policy.

Disclaimers

Company and its affiliates, subsidiaries, providers or their respective officers, directors, employees, agents, independent contractors or licensors (collectively the "Nophin Parties") do not guarantee the accuracy, adequacy, timeliness, reliability, completeness, or usefulness of any of the Services Content and the Nophin Parties disclaim liability for errors or omissions in the Services Content.

THE SERVICES AND ALL OF THE SERVICES CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OF YOUR USE OF THE SERVICES CONTENT. THE NOPHIN PARTIES DO NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Although we provide rules for User conduct and postings, we do not control and are not responsible for any User Content. The Company is not responsible for the conduct, whether online or offline, of any user of the Services. The Company cannot guarantee and does not promise any specific results from use of the Services to obtain an advance.

The Services may be temporarily unavailable from time to time for maintenance or other reasons. The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or on the Services or combination thereof, including injury or damage to Users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will the Company be responsible for any loss or damage to any User Content.

The Company reserves the right to change any and all content contained on the Services at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by the Company.

Limitation on Liability

IN NO EVENT WILL THE COMPANY OR ANY NOPHIN PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES OR ANY OF THE SERVICES CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE COMPANY'S LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES OR ANY OF THE SERVICES CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SERVICES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO, AS APPLICABLE (A) IF YOU HAVE HAD PAYMENT OBLIGATIONS TO THE COMPANY, THE HIGHER OF (X) THE TOTAL AMOUNTS PAID BY YOU TO THE COMPANY FOR THE SERVICES, OR (Y) ONE THOUSAND DOLLARS ($1,000), OR (B) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO COMPANY, ONE HUNDRED DOLLARS ($100).

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

Governing Law and Jurisdiction

These Terms of Use are governed by the laws of the State of New York, without regard to its conflict of laws provisions. The exclusive jurisdiction for disputes, claims or controversies arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation or validity thereof will be the state and federal courts located in New York City, New York, and you and Company each waive any objection to jurisdiction and venue in such courts.

Mandatory Arbitration

THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS OF SERVICE BY USING THE NOPHIN SERVICES OR THE SITE.

To the extent permitted by all applicable law, all disputes arising from or in connection with this Terms of Use or Other Agreements shall be settled or resolved by binding arbitration under the Commercial Arbitration Rules (the “Commercial Rules”) of the American Arbitration Association (“AAA”), rather than in court. Except as otherwise explicitly provided in this Section, this broadly includes: any claims based in contract, statute, tort, fraud, misrepresentation, equity or any other legal theory; initial claims, counterclaims, cross-claims, and third-party claims; federal, state, and local claims; and claims which arose before the date of this Agreement.

The arbitration shall take place in New York, New York before a single neutral arbitrator appointed in accordance with the Commercial Rules. The Commercial Rules are available at the AAA website: www.adr.org. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to this Agreement. If AAA cannot serve, a court with jurisdiction shall select the arbitrator, who will apply the Commercial Rules and procedures specified in this Section.

Either you or we can initiate arbitration through AAA, an alternative dispute resolution provider, or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. There is not a judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Disputes or controversies about the validity, enforceability, coverage or scope of this Section or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about the Agreement as a whole are for an arbitrator and not a court to decide. The arbitrator shall render a final decision pursuant to the Commercial Rules within thirty (30) days after filing of the claim. The final decision of the arbitrator shall be furnished to the parties in writing and shall constitute the conclusive determination of the issue in question binding upon the parties, and shall not be contested by any of them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrator’s decision. The prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief that such party may be entitled. For purposes of this Agreement, the prevailing party shall be that party in whose favor final judgment is rendered or who substantially prevails, if both parties are awarded judgment.

If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Even if all parties have opted to litigate a claim in court, a party may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Section. You and Nophin each agree that any disputes seeking to enforce or protect, or concerning the validity of intellectual property rights will not be subject to binding arbitration under this Section. In addition, pursuant to the Commercial Rules, any party may proceed with their individual claims in small claims court if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court’s jurisdictional limits; but if that action is transferred, removed, or appealed to a different court, arbitration can be elected. If any portion of this Section is inconsistent with the Commercial Rules or other provisions of this Agreement, this Section shall govern. This Section shall survive termination of this Agreement and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. No portion of this Section may be amended absent a written agreement signed by all parties. If any portion of this Section is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section, except that: (A) If the Class Action Waiver set out below is limited, voided or found unenforceable, then this Section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (B) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Section prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have a preclusive effect in an arbitration between the parties to this Section.

Right to Opt Out

If you do not want mandatory arbitration to apply to you, you must send Nophin a signed notice within 30 calendar days after you agree to be bound by these Terms of Use as described above. You must send the notice in writing (and not electronically) to Nophin Inc. Attn. "Terms of Service Mandatory Arbitration Opt Out", Nophin Inc., 228 Park Ave S, PMB 46744, New York, New York 10003-1502. You must provide your name, address, and phone number and state that you "opt out" of the Mandatory Arbitration Section within the Nophin Terms of Service. Opting out of this Mandatory Arbitration provision will not affect the other provisions of this Agreement. If you properly and timely opt out of Mandatory Arbitration as described herein, your opt out request will apply only to this Agreement and not any other agreement between us.

Class Action Waiver

You and Nophin each agree that any arbitration will be conducted only on an individual basis and not as a class, consolidated or representative action. To the fullest extent permitted by law, (a) no arbitration will be joined or consolidated with any other; (b) there is no right or authority for any dispute to be arbitrated on a class-action or private attorney general basis or to utilize class action procedures; and (c) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Nophin and/or you individually.

Indemnity

You agree to indemnify, defend, and hold the Company and the Nophin Parties harmless from and against any loss, liability, claim, demand, damage, cost and expense, including reasonable attorney's fees, arising out of or in connection with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of these Terms of Use, Other Agreements, any applicable law, or the rights of any third party.

Other Terms

These Terms of Use (together with all applicable Other Agreements) constitute the entire and exclusive understanding and agreement between Company and you regarding the Services, and these Terms of Use (together with all applicable Other Agreements) supersede and replace all prior oral or written understandings or agreements between Company and you regarding the Services. The failure of the Company to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms of Use is held invalid, the remainder of these Terms of Use shall continue in full force and effect. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. You may not assign or transfer these Terms of Use, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null. The Company may freely assign or transfer these Terms of Use without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns. Other than the Nophin Parties, there are no third-party beneficiaries to this Agreement.

Notices

Any notices or other communications provided by Company under these Terms of Use will be given: (i) via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

Contact Information

If you have any questions about these Terms of Use or the Services, please contact the Company at support@nophin.com.