Terms of Service
Edited: February 24, 2022
The following terms and conditions apply to your use of the NIKSILOGISTICS.com website and all content, services, features, activities, and products available on or through the website, including, but not limited to, NIKSI COMPANY, mobile websites, and applications (collectively, the “Services”). NIKSI COMPANY, LLC (“NIKSI COMPANY”, “us”, or “we”) owns and operates the Services. Please read these Terms of Service carefully as they, along with NIKSI COMPANY’s Privacy Policy, which is incorporated by reference in its entirety herein, constitute a legally binding agreement between you and NIKSI COMPANY that governs your use of the Services (this “Agreement”). You agree to be bound by the terms and conditions of this Agreement by using or accessing the Services. You may not access or use the Services if you do not agree to all of the terms and conditions of this Agreement. Individuals must be at least 16 years old to use the Services.
1. The Services’ Content
1.1. Generally. Any opinions expressed by contributors, authors, and moderators who submit Content (as defined below) to NIKSI COMPANY are their own and do not reflect the views of NIKSI COMPANY, regardless of whether the authors are employees or contractors of NIKSI COMPANY. The Content (as defined below) is provided solely for informational and entertainment purposes and is not intended to constitute an endorsement or representation by NIKSI COMPANY or any other party.
1.2. Proprietorship. The Services and their Content are for your personal, non-commercial use only. It is expressly prohibited to use any of the Content or Services for commercial purposes. The Services and all materials published and/or distributed on or through the Services (including, but not limited to, news articles, photographs, images, illustrations, audio clips, and video clips) are protected by copyright under applicable United States and international laws and are owned or controlled by NIKSI COMPANY or the party credited as the provider of the Content. Except as provided in Sections 1.3 and 5.4 of this Agreement, you may not modify, publish, transmit, adapt, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, without the express written consent of NIKSI COMPANY or the copyright owner identified in the Content’s copyright notice. You agree to refrain from altering or deleting any proprietary notices contained in the Content. Without the express written permission of NIKSI COMPANY, you may not use any NIKSI COMPANY logo, proprietary graphic, or trademark. You agree to comply with all additional copyright notices, information, and restrictions contained in any Content accessed via the Services. Title, ownership, and intellectual property rights in the Content and Services, as well as any copies or portions thereof, shall remain with NIKSI COMPANY and/or its Content providers or licensors. NIKSI COMPANY retains the right to exercise any rights not expressly granted in this Agreement.
1.3. Restricted Licensing. Subject to your strict compliance with the terms and conditions of this Agreement, NIKSI COMPANY grants you a limited, revocable, non-transferable, non-assignable, and non-exclusive license to access, download (temporary storage only), display, view, use, play, and/or print the Content (excluding, for the purposes of this Section 1.3, Content accessed through NIKSI COMPANY Advanced Consulting and further excluding source and object code in raw form or in The foregoing limited license (A) does not convey to you ownership of, or any other intellectual property interest in, any Content, and (B) may be suspended or terminated immediately and without notice or liability, at NIKSI COMPANY’s sole discretion.
2. Content Created by Users
2.1. Actions That Are Prohibited. You are solely responsible for your communications with others on the Services and your use of them. You agree to refrain from the following: (A) post or transmit any libelous, defamatory, indecent, obscene, fraudulent, deceptive, abusive, or pornographic message, data, image, content, or program; (B) post or transmit any message, data, image, content, or program that would violate any third-party property rights; (C) use the Services to threaten, harass, or otherwise violate the legal rights of others (including their right of privacy and publicity); (D) upload or download files that NIKSI COMPANY is not responsible for the content you post on your websites or products. NIKSI COMPANY does not review, is unable to review, and is under no obligation to review material submitted in connection with the Services.
2.2 The Exclusive Right of NIKSI COMPANY to Manage User Submissions You acknowledge that any materials and other information (including, without limitation, ideas contained therein for new or improved products or Services) that you post, upload, or submit to the Services, including but not limited to comments, forum messages, reviews, text, video, audio, photographs, computer code, and applications (collectively, “User Submissions”), may be edited, removed, deleted, modified, published, transmitted, and displayed by NIKSI COMPANY in its sole discretion. You expressly agree that we may remove, disable, or otherwise restrict access to or availability of any User Submissions from the Services at any time, for any reason, or for no reason. NIKSI COMPANY reserves the right to treat User Submissions as Content stored at the direction of users over which NIKSI COMPANY has no control, except to block or remove Content that NIKSI COMPANY deems to be offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, libelous, defamatory, fraudulent, deceptive, misleading, or otherwise objectionable to NI However, NIKSI COMPANY is not responsible for policing or editing any Content, and NIKSI COMPANY is under no contractual obligation to remove objectionable or unlawful Content. We will not be liable for removing, disabling, or restricting access to or availability of Content under any circumstances.
2.3. License of Your User Submissions to NIKSI COMPANY. You hereby grant to NIKSI COMPANY, and you agree to grant to NIKSI COMPANY, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide, and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works from, broadcast, publicly perform, display, To supplement the rights and license you grant to NIKSI COMPANY with respect to your User Submissions, you hereby grant to NIKSI COMPANY, and agree to grant, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, image, photograph, and likeness that you provide in connection with any User Submission, without any obligation or remuneration to you. Except where prohibited by law, you hereby waive and agree to waive any moral rights (including attribution and integrity) in any User Submissions, even if your User Submissions are altered or changed in an unfavorable manner. You agree that NIKSI COMPANY shall have no liability to you for any alleged or actual infringement or misappropriation of any proprietary right in your User Submissions. Additionally, you acknowledge and agree that you will not be compensated for the use of your User Submissions or any of the rights granted in this Section 2.3.
2.4 Representations and Warranties in Connection with Your User Submissions Each time you submit a User Submission, you represent and warrant that (A) you are the sole author and owner of the intellectual property and other rights in the User Submission, or (B) you have the legal right to submit the User Submission and grant NIKSI COMPANY the rights granted in this Agreement, all without requiring NIKSI COMPANY to obtain the consent of any third party or creating any obligation or liability on NIKSI COMPANY.
2.5. Users’ Responsibilities You are solely responsible for the content of your User Submissions and any harm that may result from them. NIKSI COMPANY disclaims all responsibility and liability for User Submissions posted on the Services or any website linked to the Services, and makes no express or implied warranty or guarantee regarding the accuracy, copyright compliance, legality, or any other aspect of the User Submissions.
2.6. Your User Submissions Are Not Confidential. The Services are open to the public, and your User Submissions, as well as any information about your identity that you provide to NIKSI COMPANY (including your name, image, employer, and location), may be made public. Do not submit to the Services any information that you consider confidential. Additionally, you agree that NIKSI COMPANY may disclose your identity and any information we have about you to any law enforcement agent or official in the event of legal action or a legal request arising from any User Submission submitted by you.
Unsolicited Email, Spamming, and Phishing You are not permitted to use the Services to send unsolicited email. You are not permitted to send unsolicited email to users of the Services or to anyone whose email address contains a domain name associated with the Services. You may not use any domain name associated with our Services as a pseudonymous return email address for communications transmitted from another location or via another service. When using the Services, you may not pretend to be someone else – or spoof their identity.
3. Hypertext Transfer Protocol (HTTP) Links to Third-Party Websites
The Services may include links to third-party websites (“Third-Party Websites”). Access to Third-Party Websites is at your own risk, and NIKSI COMPANY makes no representations or warranties regarding the accuracy, availability, or reliability of any information, goods, data, opinions, advice, or statements made available on Third-Party Websites. Additionally, these links may direct you to Third-Party Websites that contain information that some individuals may find offensive or inappropriate. The presence of hyperlinks to Third-Party Websites on NIKSI COMPANY does not constitute an endorsement or recommendation by NIKSI COMPANY. NIKSI COMPANY is not responsible for any transmissions received through any link, nor is NIKSI COMPANY responsible if any of these links are inoperable. Third-Party Websites are not under the control of NIKSI COMPANY, and NIKSI COMPANY makes no representations or warranties about them. NIKSI COMPANY shall not be liable for any loss or damage caused or alleged to be caused by or in connection with the use of or reliance on any Third-Party Website. You are responsible for reviewing and complying with any privacy statements and terms of service posted on Third-Party Websites, which are not governed by this Agreement.
4. Notification of Copyright or Intellectual Property Infringement
If you believe in good faith that material or Content on NIKSI COMPANY violates a copyright or other intellectual property right that you own or are a beneficial owner or exclusive licensee, you are encouraged to notify NIKSI COMPANY in accordance with NIKSI COMPANY’s Copyright or Intellectual Property Infringement Notification Policy, which is currently available at https://NIKSI COMPANY.com/copyright/. It is our policy to terminate the access rights of repeat infringers in appropriate circumstances.
5. Additional Terms That Apply to NIKSI COMPANY Advanced Consulting Users
5.1. Generally. NIKSI COMPANY provides the option to subscribe to NIKSI COMPANY Advanced Consulting in order to obtain enhanced Content and features. By using or accessing any products, Content, features, Services, or events offered by NIKSI COMPANY Advanced Consulting, you agree to be bound by the terms and conditions of this Section 5, which are applicable only to the use of NIKSI COMPANY Advanced Consulting and shall not apply to the use of any other Services.
5.2. NIKSI COMPANY ACCOUNT FOR ADVANCED CONSULTING. You will be required to create an online account (the “Premium Account”) in order to access certain features of NIKSI COMPANY Advanced Consulting. You agree to: (A) take reasonable steps to protect the security of your user identification, password, and other information associated with your Premium Account; (B) refrain from sharing your Premium Account password or allowing unauthorized access to your Premium Account; and (C) be solely responsible for the security, confidentiality, legality, and integrity of all messages and Content that you receive, transmit, or store via NIKSI COMPANY Advanced Consulting.
5.3. Fees; Payment Terms; Cancellation of Account.
1. For the use of NIKSI COMPANY Advanced Consulting, NIKSI COMPANY charges a subscription fee (“Fees”). By creating a Premium Account, you agree to pay NIKSI COMPANY the Fees associated with the selected account level. Unless otherwise specified, all fees are stated in United States Dollars. NIKSI COMPANY expressly reserves the right to modify the Fees at any time by providing you with 30-days written notice at the email address associated with your account. The Fees do not include the cost of telecommunications and computer hardware, software, telecommunications access charges, lines or connections, or any other equipment or services necessary to access and use NIKSI COMPANY Advanced Consulting, which shall be your sole responsibility. All Fees will be charged to your credit card at the current exchange rate for international currencies. You are responsible for and shall pay to NIKSI COMPANY any currency conversion charges, sales, use, value-added, personal property, or other tax, duty, or levy of any kind, including interest and penalties (collectively, “Taxes”) associated with your use of NIKSI COMPANY Advanced Consulting, regardless of whether such taxes are imposed now or in the future by any governmental entity. If you choose to upgrade or downgrade your plan level, your credit card will be charged at the new rate on your next billing cycle.
2. Unless otherwise specified in a contract between NIKSI COMPANY and the customer, all Fees are paid in advance and are refundable within 30 days of the initial purchase. There will be no refunds or credits after the 30-day period for partial months of service, upgrades/downgrades, or months during which you did not use NIKSI COMPANY Advanced Consulting. If you do not pay applicable fees, we reserve the right to terminate your access to NIKSI COMPANY Advanced Consulting. You must provide billing information that is current, complete, and accurate. You must promptly update all billing information to keep your account current, complete, and accurate (for example, by providing a new billing address, credit card number, or expiration date), and you must promptly notify NIKSI COMPANY if your credit card is canceled (including if you lose or steal your card) or if you become aware of a potential security breach (such as an unauthorized disclosure or use of your name or password). You authorize us to obtain updated or replacement credit card expiration dates if the credit card you provided us with expires. We reserve the right to charge any replacement renewal card issued to you. You agree to reimburse NIKSI COMPANY promptly in the event that your credit card issuer refuses to pay any amount to NIKSI COMPANY for any reason. You agree to bear all collection costs associated with any outstanding balance, including attorney’s fees and costs. If you default on any payment, NIKSI COMPANY reserves the right to immediately suspend or terminate this Agreement and your access to NIKSI COMPANY Advanced Consulting.
3. Your subscription will renew automatically unless we or you notify us in writing or electronically via one of the following methods:
Contact us via email at info@niksilogistics.com.
Mail:
COMPANY NIKSI, LLC
Liepaja, LV-3401 Ludviga iela 10
5.4. Limited License for Advanced Consulting Users of NIKSI COMPANY NIKSI COMPANY grants you a limited, revocable, non-transferable, non-assignable, and non-exclusive license to use the Content available on NIKSI COMPANY Advanced Consulting (the “NIKSI COMPANY Advanced Consulting Content”) as described below. You are welcome to:
• While accessing NIKSI COMPANY Advanced Consulting, view the NIKSI COMPANY Advanced Consulting Content.
• For personal use, download or print one copy of any NIKSI COMPANY Advanced Consulting Content.
• Incorporate a small excerpt of the NIKSI COMPANY Advanced Consulting Content (e.g., a few lines of text, a paragraph, a specific graphic, chart, or graph) into a report or presentation distributed to an internal audience of the company for which you work (“your company”), as long as NIKSI COMPANY Advanced Consulting is acknowledged as the source.
• Summarize NIKSI COMPANY Advanced Consulting Content in your own words, on an ad hoc and non-routine basis, and distribute the summary to an audience within your company in connection with a specific project, as long as you attribute NIKSI COMPANY Advanced Consulting as the source.
• Distribute NIKSI COMPANY Advanced Consulting Content that you have purchased reprint rights to audiences within and outside your company, in digital or hard copy.
• If you obtained your Premium Account through an enterprise license granted by your company, you must distribute NIKSI COMPANY Advanced Consulting Content in accordance with the terms of that license.
Except as expressly provided in this Section 5.4, you are not permitted to post or otherwise distribute NIKSI COMPANY Advanced Consulting Content (e.g., via hard copy, email, and/or posting on an intranet, company bulletin board, or other information storage and retrieval system). The preceding limited license (A) does not convey to you ownership of, or any other intellectual property interest in, any NIKSI COMPANY Advanced Consulting Content, and (B) may be immediately suspended or terminated for any reason, without prior notice or liability, at NIKSI COMPANY’s sole discretion.
6. Services Operation
NIKSI COMPANY retains complete and sole discretion over the Services’ operation. NIKSI COMPANY may, among other things: (A) make information about the Services and their users available to third parties in accordance with the Privacy Policy; and (B) remove, suspend, or discontinue any functionality or feature of the Services. You acknowledge and agree that the Services may be unavailable or inoperable from time to time for a variety of reasons, including but not limited to: I equipment malfunctions; (ii) periodic maintenance procedures or repairs performed by NIKSI COMPANY from time to time; or (iii) causes beyond NIKSI COMPANY’s control or that are not reasonably foreseeable by NIKSI COMPANY.
7. WARRANTY DISCLAIMER
NIKSI COMPANY PROVIDES THE SERVICES “AS IS.” NIKSI COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICES, INCLUDING THE ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF TIME) OF ANY CONTENT ON THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NIKSI COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS WARRANTIES THAT ACCESS TO OR USE OF THE SERVICES WILL BE NIKSI COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, OR LOSSES (INCLUDING LOSS OF DATA), OR THAT THE FILES AVAILABLE FOR DOWNLOAD FROM THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT THIS WARRANTY DISCLAIMER IS AN ESSENTIAL PART OF THIS AGREEMENT. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SERVICES AND, IF APPLICABLE, TO CANCEL YOUR PREMIUM ACCOUNT. TO THE EXTENT THAT YOU MAY BELIEVE OTHERWISE THAT ANY WARRANTIES, GUARANTEES, OR REPRESENTATIONS HAVE BEEN MADE TO YOU, YOU AGREE THAT SUCH STATEMENTS, WHETHER MADE ORALLY OR IN WRITING, ARE TO BE CONSTRUED AS NON-BINDING EXPRESSIONS OF POLICY, RATHER THAN AS AFFIRMATIVE REPRESENTATIONS, OBLIG IN THE EVENT OF A CONFLICT BETWEEN THIS SECTION 8 AND ANY OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION 8 SHALL PREVAIL.
8. LIABILITY LIMITATION
NIKSI COMPANY, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS SHALL NOT BE LIABLE UNDER ANY THEORY OF LAW FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION NIKSI COMPANY, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS’ ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATED TO THIS AGREEMENT THAT ARE MADE AGAINST THEM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERW
NIKSI COMPANY controls and provides the Services from its facilities in the United States of America. NIKSI COMPANY makes no representations about the suitability or availability of the Services in other locations. Those who access or use the Services from other jurisdictions do so voluntarily and are responsible for compliance with applicable local law.
9. COMPENSATION
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS NIKSI COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES, AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT
10. RELEASE AND WAIVER
YOU AGREE THAT NEITHER NIKSI COMPANY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS SHALL BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY ARISING OUT OF YOUR USE OF THE NIKSI COMPANY SERVICES. YOU SPECIFICALLY AGREE THAT NIKSI COMPANY SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE AS A RESULT OF THE FOREGOING IS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST NIKSI COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON NIKSI COMPANY’S NEGLIGENCE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGEN
11. Amendments / Termination
11.1. Generally speaking. No one on our staff is authorized to amend the terms of this Agreement. This Agreement may be modified only (A) with our written consent in a notarized agreement signed by an NIKSI COMPANY officer; or (B) as provided in Section 12.2.
11.2. Revisions on a Regular Basis. You acknowledge that we reserve the right to modify the terms of this Agreement at any time, and that your continued access to the Services is contingent upon your compliance with the then-current version of this Agreement. Any changes will take effect on the date they are published on the website. We will notify you of material revisions or modifications to this Agreement by: (1) posting a notice on the NIKSILOGISTICS.com website for thirty (30) days following any revisions or modifications to this Agreement and/or by posting a notice on NIKSILOGISTICS.com the first time you visit NIKSILOGISTICS.com following such revisions or modifications; or (2) communicating with you directly via email, if you have provided us with an email address. You will be deemed to have accepted the revised terms and conditions if you continue to access the Services after being notified via email of such revisions or modifications or, if you are not notified via email, after thirty (30) days from the date the revised terms and conditions are first posted on NIKSILOGISTICS.com (whichever is sooner). If you do not provide us with a valid email address for the purpose of notifying you of Agreement revisions or modifications, you agree that you will not receive notice via email. If you change email addresses, you are responsible for notifying us of the new valid email address in order to continue receiving email notices. We accept no liability for your failure to receive notice. It is your responsibility to monitor this page for potential changes. If you object to the revisions, you may choose to stop using the Services.
12 – Arbitration
12.1 Individual Arbitration as the Exclusive Dispute Resolution Mechanism
1. Any dispute, claim, or controversy arising out of or relating to this Agreement or its breach, termination, enforcement, interpretation, or validity, including the scope or applicability of this agreement to arbitrate, shall be resolved by final and binding individual arbitration in San Diego, California before a single arbitrator. The arbitral proceedings will be conducted in English. The arbitration will be conducted by the Office of Judicial Arbitration and Mediation Service (“JAMS”) in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures or JAMS’ Streamlined Arbitration Rules and Procedures. JAMS’s arbitration rules are available on the company’s website, which is currently located at www.jamsadr.com. Any court with jurisdiction may enter judgment on the Award. This clause does not preclude parties from seeking provisional remedies from a court of competent jurisdiction in aid of arbitration.
2. If you are not a resident of the United States, any dispute, controversy, or claim arising out of or relating to this Agreement, including its formation, interpretation, breach, or termination, including the arbitrability of the claims asserted, will be referred to and finally resolved by final and binding individual arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will be chaired by a single arbitrator. The arbitration will take place in San Diego, California. The arbitral proceedings will be conducted in English. Any court with jurisdiction may enter judgment on the arbitrator’s award.
12.2 Pre-Arbitration Negotiations
1. The parties will make a good faith effort to resolve any dispute arising out of or relating to this Agreement expeditiously through negotiation between persons with the authority to resolve the controversy and who are at a higher level of management than the persons directly responsible for this Agreement’s administration. Any party may notify the other party in writing of any dispute that cannot be resolved in the normal course of business. The receiving party shall provide the other party with a written response within 15 days of receipt of the notice. The notice and response shall include (a) a statement of each party’s position and a summary of the arguments in support of that position, and (b) the name and title of the executive who will represent that party and any other person who will accompany the executive. Within 30 days of the notice’s delivery, the executives of both parties shall meet at a mutually convenient time and location.
2. Unless the negotiating parties agree otherwise in writing, the above-described negotiation shall conclude at the conclusion of the first meeting of the individuals described above (“First Meeting”). This conclusion does not preclude further or subsequent negotiations, if desired. All offers, promises, conduct, and statements made during the negotiation by any of the parties, their agents, employees, experts, and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable is not rendered inadmissible or undiscoverable as a result of its use in the negotiation.
3. Neither party may initiate arbitration or litigation in connection with this Agreement prior to the First Meeting, except to pursue a provisional remedy authorized by law, the JAMS Rules, or by agreement of the parties. This limitation, however, does not apply to a party if the other party fails to comply with the requirements set forth in Paragraph 1 above.
12.3 Modification or Revocation Requirements This agreement to arbitrate shall survive the termination of the relationship between you and NIKSI COMPANY. It may be revoked or modified only through a written agreement signed by NIKSI COMPANY and you that expressly states an intention to revoke or modify this agreement to arbitrate.
12.4 Arbitration Clause Coverage. NIKSI COMPANY and you agree to resolve all claims or controversies (collectively, the “Claims”) that NIKSI COMPANY may have against you or that you may have against NIKSI COMPANY or any of its predecessors, successors, assigns, affiliates, parent and subsidiary companies, and joint ventures, as well as their respective past, present, or future officers, directors, employees, stockholders, and representatives, through final and binding arbitration. The Claims include, but are not limited to, claims for penalties, fines, and breach of contract (express or implied); tort claims (including, but not limited to, those involving reputation); claims for violation of trade secret, proprietary, or confidential information laws; claims for unfair business practices; and claims for violation of any public policy, federal, state, international, or other governmental law, statute, regulation, or ordinance.
12.5 Notice of Claims and Statute of Limitations Requirements NIKSI COMPANY may commence arbitration proceedings against you by serving or mailing you a written notice at your last known address. You may commence arbitration proceedings against NIKSI COMPANY by serving or mailing a written notice to NIKSI COMPANY. The written notice must specify the claims asserted against the other party with reasonable particularity. Notice of any claim to be arbitrated must be served within the applicable federal or state statute of limitations. After serving written notice of the demand for arbitration, the party seeking arbitration shall file the demand with the Office of Judicial Arbitration and Mediation Service (“JAMS”) in San Diego, California.
12.6 Arbitrator Selection. Within 30 days of the commencement of the arbitration, NIKSI COMPANY shall appoint an arbitrator from the JAMS panel. The arbitrator shall act in a neutral, impartial, and independent capacity.
Confidentiality. 12.7 Confidentiality. The parties shall preserve the confidentiality of the arbitration proceeding and award, if any, including the hearing, except as necessary to prepare for or conduct the arbitration hearing on the merits, or as necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or as otherwise required by law or judicial decision.
12.8 Dispute Resolution. In any arbitration arising out of or relating to this Agreement, the following shall apply:
1. Any party wishing to file a dispositive motion shall first submit a brief letter (no more than five pages in length) explaining why the motion is meritorious and how it would expedite and cost-effectively resolve the proceeding. The opposing party will have a limited time period in which to respond.
2. The arbitrator will decide whether to proceed with more comprehensive briefing and argument on the proposed motion based on the letters.
3. If the arbitrator grants the motion, he or she will impose page limits on the briefs and establish an expedited schedule for disposition.
4. In most cases, the pending status of such a motion will not result in the suspension of any aspect of the arbitration or the adjournment of any pending deadlines.
12.9 Requests for Documents. Requests for documents in any arbitration arising out of or relating to this Agreement:
1. SHALL BE LIMITED TO DOCUMENTS THAT ARE DIRECTLY RELATED TO IMPORTANT ISSUES IN THE CASE OR TO THE OUTCOME OF THE CASE;
2. Shall be limited in scope in terms of time, subject matter, and individuals or entities to whom requests pertain; and
3. Shall not contain sweeping generalizations such as “all documents that are directly or indirectly related to.”
12.10 Electronic discovery. In any arbitration arising out of or relating to this Agreement, the following shall apply:
1. Electronic documents shall be produced solely from sources used in the ordinary course of business. No such documents are required to be produced from backup servers, tapes, or other media unless a compelling need is demonstrated.
2. Unless there is a compelling reason, electronic documents shall be produced using generally available technology in a searchable format that is usable by the party receiving the e-documents and convenient and economical for the party producing the e-documents. Unless there is a compelling reason, the parties are not required to produce metadata, with the exception of email header fields.
3. The description of custodians from whom electronic documents may be collected shall be limited to those individuals whose electronic documents are reasonably expected to contain evidence relevant to the dispute.
4. Where the costs and burdens of e-discovery are disproportionate to the nature of the dispute, the amount in controversy, or the relevance of the materials sought, the arbitrator may either deny such requests or order disclosure on the condition that the requesting party advance the other side the reasonable cost of production, subject to the final award’s allocation of costs.
12.11 Subpoenas and Requests for Admission. There shall be no interrogatories or requests for admission in any arbitration arising out of or relating to this Agreement.
Depositions. 12.12 Each party may take three (3) discovery depositions in any arbitration arising out of or relating to this Agreement. Each party’s depositions are limited to fifteen (15) hours in total. The total duration of the deposition process shall not exceed six (6) weeks.
12.13 Governing Law and Authority of the Arbitrator
1. Except as expressly provided in this Agreement, this Agreement and the Parties’ rights thereunder shall be governed and construed in accordance with the laws of the state of California, without regard for conflict or choice of law rules.
2. The Parties acknowledge that this Agreement documents an interstate or international commerce transaction. Regardless of the preceding paragraph’s provision regarding applicable substantive law, any arbitration conducted in accordance with the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. 1-16). The arbitrator shall apply the substantive laws (and, if applicable, the law of remedies) of the state of California, federal law, or applicable international law to the asserted claim(s).
3. The arbitrator shall have exclusive authority to resolve any dispute arising out of or relating to this Agreement’s interpretation, applicability, enforceability, or formation, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, and issues of arbitrability relating to any matter herein.
4. Except where permitted by statute, the arbitrator is not authorized to award punitive or exemplary damages, and the parties waive any right to recover such damages.
12.14 Arbitration Award The arbitrator’s decision is final and conclusive and is not appealable. The arbitrator shall issue a written arbitration decision setting forth the critical findings and conclusions that underpin the decision and/or award. The arbitrator’s decision or award shall be enforceable in a court of competent jurisdiction. The parties irrevocably stipulate that the arbitral award and proceedings are confidential, and further stipulate that the award and any proceedings papers shall be filed with a court of competent jurisdiction under seal and only for the purpose of enforcing an arbitral award or decision.
12.15 Emergency Injunctive and/or Other Equitable Relief Application. JAMS Comprehensive Rules shall govern the appointment of an Emergency Arbitrator to hear and decide an emergency relief request.
12.16 WAIVER OF CLASS ACTION/REPRESENTATIVE ACTION PROCEEDINGS. BY REGISTERING TO RECEIVE PRODUCTS OR SERVICES FROM US OR BY PROVIDING US WITH YOUR INFORMATION, YOU KNOWINGLY AND VOLUNTARILY AGREE TO BRING CLAIMS (LAWSUITS) AGAINST NIKSI COMPANY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS MEMBER, GROUP, OR REPRESENTATIVE IN ANY PURPORTED REPRESENTATIVE, CO YOU AGREE TO WAIVE YOUR RIGHT TO PARTICIPATE IN ANY REPRESENTATIVE, COLLECTIVE, OR CLASS ACTION PROCEEDING RELATED TO ANY CLAIMS GOVERNED BY THIS PRIVACY POLICY (A LAWSUIT IN WHICH YOU SUE AS A GROUP RATHER THAN AS AN INDIVIDUAL) RELATED TO ANY CLAIMS GOVERNED BY THIS PRIVACY POLIC YOU AGREE ADDITIONALLY THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF REPRESENTATIVE, COLLECTIVE, OR CLASS ACTION PROCEEDING, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIVE ACTION UNDER CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET
12.17 EXCLUSIVE REMEDY/WAIVER OF JURY TRIAL. IN ARBITRATION, THERE IS NO JUDGE OR JURY, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. BY AGREING TO ARBITRATION, NIKSI COMPANY AND YOU AGREE TO WAIVE ANY CONSTITUTIONAL RIGHT TO A TRIAL BY JURY OR IN COURT FOR COVERED CLAIMS. NIKSI COMPANY AND YOU AGREE FURTHER THAT IF ANY SUCH DISPUTE OR CLAIM IS HEARD IN COURT RATHER THAN THROUGH ARBITRATION, THE PARTIES WAIVE ANY CONSTITUTIONAL RIGHT TO A JURY OR COURT TRIAL.
12.18 Fees and Costs of Arbitration. Each party shall bear its own costs and expenses in any such arbitration, as well as one-half (1/2) of the arbitrator’s fees and costs; however, if NIKSI COMPANY prevails, the arbitrator shall award attorneys’ fees and costs to NIKSI COMPANY. Any arbitration decision or award shall be treated as confidential and may be made public only with the prior written consent of both you and NIKSI COMPANY.
12.19 Separation (Arbitration Clause). NIKSI COMPANY and you agree and acknowledge that if any section, subsection, sentence, clause, or phrase contained in this Arbitration Clause is determined to be invalid, unenforceable, or otherwise ineffective, such determination shall have no effect on the validity of the remaining portion(s) of this Arbitration Clause.
Small Claims Matters Are Exempt from the Arbitration Requirement 12.20. Nevertheless, either of us may file a qualifying claim in small claims court.
13. Excessive Force
Neither Party is liable for any default, delay, or failure to perform any of its obligations under these Terms of Service (other than failure to make payments on time) caused directly or indirectly by circumstances beyond such Party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, acts of war or terrorism, pandemic, transportation or communications interruptions, supply shortages, or the failure of any third party.
To begin, a force majeure event or an unforeseen circumstance shall have the effect of suspending performance under this agreement.
If a force majeure event or unforeseen circumstance continues for more than three (3) months, unless the Parties agree otherwise, these Terms of Service will automatically terminate, without the need for a court order, formal notice, or prior notice. In such an event, the Parties shall not be liable for any breach of their obligations hereunder, whether total or partial.
14. Disposability
If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remainder of this Agreement shall be construed as if the invalid, illegal, or unenforceable provision never existed. The remainder of this Agreement shall remain fully effective.
15. Notifications
Under this Agreement, NIKSI COMPANY may communicate with you via electronic mail, a general or specific notice on the Services, a communication to your NIKSI COMPANY account, or by written communication delivered by first class U.S. mail to your address on record. You may give notice to NIKSI COMPANY at any time via electronic mail to the following address: info@niksilogistics.com.
16. Diverse
NIKSI COMPANY reserves the right to immediately terminate or suspend your access to the Services, without notice or liability, if you violate this Agreement or for any other reason. The failure of either Party to exercise any right provided for herein in any respect shall not be construed as a waiver of any further rights provided for herein. You may not assign, transfer, or sublicense this Agreement without NIKSI COMPANY’s prior written consent. This Agreement does not create any agency, partnership, joint venture, or employment, and you do not have any authority to bind NIKSI COMPANY in any way. The section headings in this Agreement are for reference purposes only and shall not be deemed to control or affect the interpretation or construction of any provision of this Agreement.
17. Consent in its entirety
This Agreement, which incorporates NIKSI COMPANY’s Privacy Policy and Notification of Copyright or Intellectual Property Infringement Policy, contains the entire agreement between you and us regarding your access to and use of the Services and supersedes all prior or contemporaneous written or oral agreements, communications, or other understandings regarding the subject matter hereof (with the sole exception of any separate license agreements for NIKSI COMPANY Advanced Consulting or NIKSI COMPANY Advanced Consulting Content to which you are a party or beneficiary, which shall remain in full force and effect and which shall supplement the terms of this Agreement). Except as provided in Section 12 above, this Agreement may not be modified, either expressly or impliedly. This Agreement supersedes all contemporaneous oral agreements, as well as all prior oral and written communications and understandings between the Parties regarding the subject matter of this Agreement.
