PLEASE READ THE FOLLOWING USER AGREEMENT TERMS AND CONDITIONS CAREFULLY:
Please be advised that this UA contains an Agreement to Arbitrate, which will, with limited exception, require you to submit any claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate in accordance with the rules below. Unless you opt-out, you will only be permitted to pursue claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding.
We welcome you to Murray’s Carbs and we invite you to access and use our mobile app and our Site, subject to the rules that follow.
As used in this UA, “we,” “our,” and “us” means Niche unless otherwise indicated. The word “you” includes generally both individuals using the Site for personal purposes (“Consumer Users”) or legal entities who use the Site for commercial or civic purposes, such as schools, colleges or municipalities (referred to collectively as “Entity Users”). In this UA, any reference to “you” will mean both Consumer Users and Entity Users (“Users”), unless we specify one or the other for any particular provision within the UA. Additions and changes to the content on the Site or to the software used to power it will be covered by this UA and will become effective to those things upon publication to the Site.
I. Who is Murray’s Carbs?
Murray’s Carbs is a company with an address located at 259 Brewer Road, Lexington, NC 27295. We provide an online platform designed to facilitate easy access to online-based services for Consumer Users and Entity Users. For instance, Consumer Users can use our Site to explore data that we make available about schools and colleges, workplaces, and places to live, and get useful information from our partner schools, colleges and municipalities. Our Entity Users can use our Site and the related Services to advertise their school, college, place of employment, or list facts about their town or city, provide links to their respective websites and get useful data from the extensive Niche data base. An Entity User can use the Site by simply registering and claiming a school or location, or by becoming a Premium Member under a separate services agreement with us (referred to as a “Services Agreement”), which provides the Entity User with significantly more data and content allowances to reach target populations. There are fees associated with becoming a Premium Member, and these fees, as well as additional terms and conditions, are set forth in the separate Services Agreement that you must enter into with us. Please contact us at [email protected] to obtain more information on becoming a Premium Member. On the Site, we use our brand name “Murray’s Carbs”.
III. Account Creation.
The Murray’s Carbs Site accounts are designed for use only by Consumer Users 13 years of age or older, their parents, and others 13 years of age or older interested in using the Services for non-commercial, personal use. Entity Users are also for designated representatives of schools, work places, and other entities whose services relate to the Services and who want to claim and update their particular entity page on our Site.
Users are the sole creators of their accounts and Niche does not independently verify the information provided, except that Niche does reserve the right to verify Entity User account information and updates. You are responsible for maintaining the confidentiality of your Niche account and password. You shall be responsible for all uses of your account and password, whether or not authorized by you. You agree to immediately notify Murray’s Carbs of any unauthorized use of your account or password.
IV. Consumer Users of Niche Services.
If we communicate with a provider, we may share your profile information with them so that they can contact you directly. If you select “No” for a provider, then we’ll remove it from your list of recommendations. Regardless of your level of interest in a provider, Murray’s Carbs always recommends that you follow-up with the provider directly as we cannot guarantee that we can connect you with every provider. This feature is only available to those who have registered for an account.
Your use of the Murray’s Carbs Services does not take the place of any school application or employment application and does not guarantee the admittance into a school, job interview or placement, or any other desired result. Niche does not make any guarantees, representations, warranties, or promises that any Niche Services will assist you in getting admitted into a school, hired by a work place, or in obtaining any other desired result.
V. User-Generated Content.
Murray’s Carbs, through its forums and surveys, provides Users an opportunity to post content to the Murray’s Carbs Services. Murray’s Carbs does not necessarily endorse, support, sanction, encourage, or agree with content posted by Users. By submitting, posting or consenting to our use of any User-generated content, you grant to Murray’s Carbs and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from all or any portion of the User-generated content.
You acknowledge that by posting User-generated content on the Site, we are merely acting as a passive conduit for its publication and distribution and we are not undertaking any obligation or liability related to it. All information, data, text, software, music, sound, photographs, video, messages, or other materials uploaded, posted or transmitted on the Site, whether publicly uploaded or posted or privately transmitted, is the sole responsibility of the person from whom such content originated.
If you are an Entity User, you acknowledge and understand that a fundamental aspect of our Services is the ability of Consumer Users to share their experiences at each school, in a particular place to live, or work place. You do not have control or input into how and what Consumer User-generated content we use and display on the Site. Niche reserves the right to remove reviews that do not follow the content guidelines or have been submitted from an unverified account (i.e., the authenticity of the email address for the account is verified by the Consumer User).
However, you may report any objectionable User-generated content or other violations by emailing [email protected] or by clicking the “Report” link (when available) next to User-generated content on the Site.
If you upload, post, or otherwise transmit content to the Site, regardless of what kind of User you are, you acknowledge that any such submissions may be edited, removed, modified, published, transmitted, used and displayed by Niche or third parties in any medium now existing or later invented, and for any purpose, including commercial uses. You waive any moral rights you may have in having the material edited, removed, modified, published, transmitted, used or displayed in a manner not agreeable to you.
VI. Binding Agreement.
By accessing or using the Site or Services, you acknowledge that you have read and understood the terms of this UA, and agree to be bound by this UA, and by all related technical specifications, security procedures, rules of access, and any other terms and conditions set forth by us from time to time as posted here or through a link on the Site, or through other means that we publish to you. The use of the Site (including, without limitation, any content posted on it or software made available), by you, or anyone else authorized by you, is prohibited except as allowed by the terms and conditions contained in this UA. We may restrict your use of the Site without warning at our discretion. If you are an Entity User, you also agree to remain bound by the terms and conditions of any separate Service Agreement that you have entered into with us and which governs the commercial relationship between us.
A. You represent, warrant at all times that:
(1) All information you submit is truthful and accurate, and you will promptly update it as it may change from time to time.
(2) For Consumer Users, you are a U.S. citizen, at least age 13 or older, and you are of age to enter into a legally binding contract when using the Site.
(3) For Entity Users, the person subscribing to our Services and creating an account is employed by the institution or entity that you have designated and such person is authorized to act on the entity’s behalf in an official capacity with respect to the Services and this Site.
(4) Your use of the Site does not and will not violate any laws or regulations that may apply to you, or any agreements that you have with someone else.
(5) Any content that you insert or upload to the Site does not infringe the copyright, trademark, publicity/privacy right, and/or other intellectual property or proprietary rights of any person.
B. You also agree to the following:
(1) You will not use the services provided by us or the Site for any commercial “for profit” purpose outside of the relationship that we have with you, without our prior written consent.
(2) For Consumer Users, you will not advertise or sell any goods or services through the Site. This includes your agreeing not to upload to, post, share, or otherwise publish through the Site any content that is commercial in nature, including but not limited to promotional material, advertising, or solicitation for goods or services.
(3) For Entity Users, any advertisements or promotions will be conducted strictly in accordance with the terms of the Service Agreement between you and us.
(4) You will not operate, conduct, or promote, directly or indirectly, raffles, lotteries or other similar gaming activities, whether for charitable purposes or otherwise.
(5) You will not upload, post or distribute any content which, in our sole determination, is inappropriate. This includes content that is false, indecent, defamatory, disparaging to the reputation of any individual or business, obscene, offensive, threatening, profane, harmful to minors in any way, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, violent, tasteless, denigrating, insensitive, pornographic or sexually oriented, or otherwise objectionable, or would constitute or encourage a criminal offense or other illegal activity, and/or violate the rights of any party or any law.
(6) While using the Site, you must comply with all applicable domestic and international laws, statues, ordinances, and regulations.
(7) We may, at our sole discretion and with or without notice to you, remove or edit any content that we deem to be unlawful, obscene, or in violation of this UA. We may, but are not obligated to, remove any other content that we determine in our sole discretion is fraudulent, threatening, libelous, defamatory, or otherwise objectionable, or infringes or violates any party’s intellectual property or other proprietary rights. Our failure to block or remove any content, however, does not mean that we endorse it or make any representation or guarantee regarding such content.
(8) You will not distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes; distribute viruses or any other technologies that may harm us, or the interests or property of any of our other users or business partners; bypass our system security measures, interfere with the working of our services or the Site, or impose an unreasonable or disproportionately large load on our infrastructure.
(10) You understand and agree that you do not have the authority to act on our behalf, to speak for us, or to in any way obligate us with respect to any third parties.
VII. Our Proprietary Materials.
A. You may use the Site, including the content on it solely for the purposes stated on the Site itself and as described in this UA and in accordance with any Service Agreement that you have with us.
B. No text, logo, graphic, sound, image, photograph or software published on or underlying the Site may be copied, modified, published, sold or otherwise distributed, transferred or used without our prior express written permission, which we are not required to grant, even if you ask.
C. Except as otherwise expressly allowed by this UA or for Entity Users, in any separate Service Agreement that you have with us, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, display, perform, reproduce, reuse, post, publish, license, hyperlink to, promote, frame, download, cache, store for subsequent use, create derivative works from, transfer, or sell any information or content displayed on or obtained from the Site, in any manner.
D. We own all of the intellectual property connected with the Site. This includes, but is not limited to all copyrights, trademarks, patents, derivative works, moral rights, trade secrets, and proprietary information in all content that appears on the Site (other than the content of our third party business partners and advertisers who have permission to appear on the Site), and in all software that we develop in connection with the Site and our services. You agree not to copy, alter, frame, reverse engineer, distribute, publish, sell, prepare derivative works based on, or commercially exploit the software and/or any content, without express written permission from us.
E. All Site content and functionality, and all software underlying the Site, may be changed or updated by us from time to time, without notice. Although Niche cannot monitor the conduct of Users of the Site, it is a violation of this UA to use the Site or any information obtained from it in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit or sell to any person featured on the Site, except for Entity Users as may be expressly permitted by your Service Agreement with us.
VIII. Third Party Website.
The Site may provide links to other websites or apps (each, a “Linked Site“) as a convenience to you. These links do not mean that we review or endorse these Linked Sites or any services offered through them. Such Linked Sites are not maintained by us and we do not monitor or accept any responsibility for them. As such, we are not and will not be responsible for the content, products, services, policies or activities of those Linked Sites. Any dealings that you have with advertisers or other third-parties who may be found on any Linked Site are between you and the advertiser, for which you assume full responsibility, and you acknowledge that we are not liable for any loss or claim you may have against an advertiser. The inclusion of any link to a Linked Site on our Site does not imply an endorsement by Murray’s Carbs of the Linked Site.
IX. Third Party Website Seeking to Hyperlink to the Site.
We welcome appropriate hyperlinks to our Site by responsible third parties. By publishing a hyperlink to our Site on your website or app, you warrant to us that the content of your website or app is appropriate and consistent with the stated purposes of our Site and of Murray’s Carbs. If this is not or will not be the case, then you do not have our permission to link to our Site, and doing so will constitute a violation of this UA. In addition, we reserve the right in our sole discretion to rescind our permission granted in this UA to link to our Site.
Use of any Murray’s Carbs trademark, service mark or other intellectual property or content provided by us for a hyperlink to our Site is permitted and licensed by Murray’s Carbs solely for the purposes described on the Site and in this UA, and you shall not otherwise copy, modify, publish, use or distribute such trademarks, service marks or other intellectual property or content. Upon request by Murray’s Carbs, you shall immediately remove any hyperlink to the Site, and discontinue use of any trademarks, service marks or other intellectual property or content provided by Murray’s Carbs. As used in this section, “you” means any third party, even if you are not a User.
X. Warranty and Legal Disclaimers.
We make reasonable efforts to provide a Site that is safe and accurate and Services that are useful to you, but we make no warranties. We retain the right to restrict use of the Site in any manner we deem appropriate.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SITE, THE CONTENT, THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK. ALL CONTENT, SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS MAY BE PROVIDED IN A SEPARATE, WRITTEN SERVICES AGREEMENT BETWEEN US AND YOU, MURRAY’S CARB’S EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MURRAY’S CARBS MAKES NO WARRANTY THAT (i) THE CONTENT, SERVICES AND SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE; (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONTENT, SERVICES OR SOFTWARE WILL BE RELIABLE; AND (iii) ANY ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
Notwithstanding the foregoing, Murray’s Carb’s observes, and expects third party providers to observe and to strictly adhere to, all federal, state, and local laws, rules and regulations, including, without limitation, those laws related to real estate and housing such as Title VIII of the Civil Rights Act of 1968, as amended (the Fair Housing Act). Murray’s Carbs neither knowingly participates in, nor condones, discriminatory housing practices such as steering or the denial of housing based upon race, color, religion, sex, handicap or disability, familial status, national origin or any other protected class or group under law.
XI. Limitation of Liability.
IN NO EVENT SHALL MURRAY’S CARBS, ITS EMPLOYEES, AGENTS, AFFILIATES, DIRECTORS, OFFICERS, REPRESENTATIVES, SUBCONTRACTORS, ADVISORS, OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SITE (COLLECTIVELY “MURRAY’S CARBS AND ITS AFFILIATES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, DAMAGES OR LOSS OF PRODUCTS, USE OF DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM THE USE OF ANY OF THE SITE OR ANY LINKED SITE (AS DEFINED IN THIS UA), OR INABILITY TO USE THE SITE, SERVICES, CONTENT OR SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO SUE MURRAY’S CARBS AND ITS AFFILIATES OR TO PARTICIPATE IN ANY CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE SITE OR SERVICES, UNLESS AND EXCEPT AS, BUT ONLY IN ACCORDANCE WITH, ANY SEPARATE, WRITTEN SERVICES AGREEMENT THAT YOU HAVE WITH US.
YOU UNDERSTAND AND AGREE THAT MURRAY’S CARBS AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR EQUIPMENT OR NETWORK FAILURE WHATSOEVER, AND THAT MURRAY’S CARBS AND ITS AFFILIATES WILL NOT BE LIABLE WHATSOEVER FOR ANY DAMAGES OR INJURY THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENT ON THE SITE, EVEN IF THERE IS NEGLIGENCE BY MURRAY’S CARBS OR AN AUTHORIZED MURRAY’S CARBS REPRESENTATIVE, OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BOTH.
MURRAY’S CARBS NEITHER WARRANTS NOR REPRESENTS THAT YOUR USE OF THE SERVICES, CONTENT, SOFTWARE OR ANY OTHER MATERIALS DISPLAYED ON THE SITE WILL NOT INFRINGE RIGHTS OF THIRD PARTIES.
XII. Resolution of Disputes.
You and Murray’s Carbs agree that any claim or dispute at law or equity that may arise between us relating in any way to this UA or your use of or access to the Site or related Services will be resolved in accordance with the provisions set forth in this Resolution of Disputes Section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
A. Applicable Law: This UA is governed by the laws of the Commonwealth of North Carolina, USA, without regard to its choice of law or conflicts of law provisions, and any controlling United States federal law. If any provision is deemed by a court of competent jurisdiction to be unlawful or unenforceable, it will not affect the validity and enforceability of the remaining provisions.
B. Agreement to Arbitrate: You and MURRAY’S CARBS each agree that any and all disputes or claims that may arise between you and us relating in any way to or arising out of this or previous versions of the UA or your use of or access to the Site or any related Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
(1) Prohibition of Representative or Class Actions and Non-Individualized Relief –
YOU AND MURRAY’S CARBS AGREE THAT EACH OF US MAY ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE BOTH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (WHETHER MONETARY, INJUNCTIVE, AND/OR DECLARATORY) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MURRAY’S CARBS USERS.
(2) Arbitration Procedures – Arbitration is more informal than a lawsuit in court and uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of this Agreement to Arbitrate or of the UA.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: MURRAY’S CARBS LLC, 259 BREWER ROAD, LEXINGTON, NC, 27295
The arbitrator will decide the substance of all claims in accordance with the laws of the Commonwealth of North Carolina. The arbitrator shall not be bound by rulings in prior arbitrations involving different Niche Users. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having appropriate jurisdiction.
(3) Costs of Arbitration – Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate.
(4) Severability – With the exception of the provisions in Section XII.B(1) of this Agreement to Arbitrate (“Prohibition of Representative or Class Actions and Non-Individualized Relief”), if any part of this Agreement to Arbitrate is held invalid or unenforceable by an arbitrator or a court, then the other parts of this Agreement to Arbitrate Section will still apply. If an arbitrator or court decides that any of the provisions in Section XII.B(1) of this Agreement to Arbitrate are invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the UA and its Resolution of Disputes Section will continue to apply.
(5) Opt-Out Procedure – YOU CAN ELECT TO “OPT-OUT” OF THIS AGREEMENT TO ARBITRATE AND REJECT ITS PROVISIONS SO LONG AS YOU ARE A NEW MURRAY’S CARBS USER, BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 3 BUSINESS DAYS FOR ENTITY USERS AND NO LATER THAN 30 DAYS FOR CONSUMER USERS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO MURRAY’S CARBS, 259 BREWER ROAD, LEXINGTON, NC 27295 ATTN: LEGAL DEPARTMENT, RE: OPT-OUT NOTICE.
You must complete the Opt Out Notice by providing your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the MURRAY’S CARBS account(s) to which the opt-out applies. You must sign and date the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Resolution of Disputes Section will continue to apply to you.
(6) Future Changes to the Agreement to Arbitrate – Notwithstanding any provision in the UA to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against MURRAY’S CARBS prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and us. We will notify you of changes to this Agreement to Arbitrate by posting the amended terms on the Site at least 30 days before the effective date of the changes. If you do not agree to the amended terms, you may close your account and you will not be bound by the new terms.
C. Judicial Forum for Legal Disputes: Unless you and we agree otherwise, the arbitration shall be conducted in Davidson County, NC, and claims regarding the judgment of the arbitrator (including entry of judgment on the arbitration award) may be brought and shall be subject to the exclusive jurisdiction of the State and federal courts located in Davidson County, NC, and you waive any jurisdictional, venue, or inconvenient forum objections to such courts. In the event that the Agreement to Arbitrate above is found to not apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Niche will be brought exclusively in a state or federal court located in Davidson County, NC. You and we agree to submit to the personal jurisdiction of the courts located within Davidson County, NC for the purpose of litigating all such claims or disputes.
B. Indemnification: You agree to indemnify and hold Murray’s Carbs and its affiliates harmless from and against any and all loss, liability, claims, causes, actions, damages or penalties, including reasonable attorneys’ fees, made by any third party due to or arising out of: (1) your use of the Site in breach or violation of any term of this UA; (2) your violation of any law or regulation; (3) breach of your representations, warranties and agreements as set forth herein; or (4) any content you provide to Murray’s Carbs.
C. International Use: The Site is controlled and operated from within the United States. We make no representation that the Site is appropriate or available in locations outside the United States. Anyone choosing to access the Site from other locations are responsible for compliance with applicable laws. International visitors must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from the Niche Services may be downloaded or exported: into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the United States has embargoed goods; or to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders.
D. Assignment: You may not assign, sublicense or otherwise transfer any right or obligation set forth in this UA without our prior written consent. Any purported assignment in violation of the preceding sentence is void and of no effect. We may assign any of our rights or obligations under this UA to another party without notice or consent for any reason. These terms and conditions in this UA are binding upon the parties’ respective successors and permitted assigns.
E. Contact Niche: If you have any questions about the Site or this UA, you may contact us via e-mail [email protected] We are always glad to hear your questions and comments.
F. Entire Agreement: This UA and any related technical specifications, security procedures, rules of access, and any other terms and conditions set forth by us from time to time as posted on the Site or through a link on the Site, or through other means that we publish to you, including any separate written Services Agreement between you and us, constitute the entire agreement between us and you in connection with your use of the Site, hyperlinks to the Site and the content and software displayed on the Site, and supersedes any prior agreements between us and you regarding such matters, including prior versions of this UA. We may update this UA from time to time by posting revised versions of it on the Site, without notice to you except that the effective date at the top of this UA will change and your subsequent use of the Site is governed by that new UA, and constitutes your acceptance of the changed terms. Nothing in these Terms may be construed to create or confer any rights on third party beneficiaries.
G. Special Legal Notices and TCPA Consent:
(1) Copyright Infringement Claims – We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from our Site infringe your copyright, you may request removal of those materials (or access to them) from us by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following: (1) your physical or electronic signature; (2) identification of the copyrighted work you believe to have been infringed; (3) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (4) your name, mailing address, telephone number, and email address; (5) a statement by you that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law; and (6) a statement by you, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Counter-Notice Procedures – If you believe that material you posted on our Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified below). Pursuant to the DMCA, the Counter-Notice must include substantially the following: (1) your physical or electronic signature; (2) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (3) your name, mailing address, telephone number, and email address; (4) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; (5) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which Niche may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
PLEASE BE AWARE THAT IF YOU KNOWINGLY MATERIALLY MISREPRESENT THAT (i) MATERIAL OR ACTIVITY ON OUR SITE IS INFRINGING YOUR COPYRIGHT, OR (ii) MATERIAL OR ACTIVITY ON OUR SITE WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION, YOU MAY BE HELD LIABLE FOR DAMAGES (INCLUDING COSTS AND ATTORNEYS’ FEES) UNDER § 512(f) OF THE DMCA.
(2) TCPA Consent – Authorization to Contact You – By agreeing to this UA, you expressly agree to receive calls, including autodialed and/or pre-recorded message calls, from us at any of the telephone numbers (including mobile telephone numbers) that you have provided to us. If the telephone number that is a mobile telephone number, you consent to receive SMS or other text messages at that number. Standard telephone minute and text charges may apply if we contact you at a mobile number or device. You agree we may contact you in the manner described above at the telephone numbers we have in our records for these purposes:
- To contact you for reasons relating to your account or your use of our Site (such as to collect money, resolve a dispute, or to otherwise enforce this UA) or as authorized by applicable law.
- You further agree that we may send e-mails to you at any e-mail address you provide us or use other electronic means of communication to the extent permitted by law.
- Consent for the above authorizations may be revoked by you at any time and by any reasonable means, including by emailing us at [email protected] and putting the words “remove my telephone number” in the subject line of your email, or by telephoning us at 1-(336)-608-5066.
(3) Special California Notice – If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.