Updated and effective Date: April 23, 2018

These Terms of Use apply to the web site nativeMsg.com and all of its features, and any other websites, applications, widgets, interactive features or online or digital services owned or controlled by nativeMsg, Inc. (“nativeMsg”) that post a link to these Terms of Use (each, a “nativeMsg Site”). In these Terms of Use, the terms “you” and “yours” refer to the person using this nativeMsg Site. The terms “we,” “our,” or “us,” refer to nativeMsg.

Please read these Terms of Use carefully, as they govern your use of this nativeMsg Site. By using this nativeMsg Site, you agree to abide by these Terms of Use. If you do not agree with any of these Terms of Use, do not use this nativeMsg Site. You affirm that you have the capacity to agree to these Terms of Use and are of legal age.

NOTE THAT THE “DISPUTE RESOLUTION AND ARBITRATION” SECTION BELOW  CONTAINS PROVISIONS THAT REQUIRE, WITH LIMITED EXCEPTIONS, ALL DISPUTES ARISING OUT OF OR RELATING TO YOUR USE OF THE NATIVEMSG SITE TO BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT, AND THAT YOU AND NATIVEMSG WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES.  PLEASE READ THE DISPUTE RESOLUTION AND ARBITRATION SECTION CAREFULLY.  BY USING THE NATIVEMSG SITE, YOU AGREE TO BE BOUND BY THE DISPUTE RESOLUTION AND ARBITRATION SECTION IF YOU ARE A U.S. RESIDENT.

For information about the way in which we use, process and share personal information that we may obtain about you, please refer to our Privacy Policy, available at https://nativemsg.com/privacy.

Table of Contents

  • Intellectual Property Rights
    • Ownership
    • Authorized and Prohibited Uses
    • Registration and Passwords
    • Information or Content that You Submit
    • User Content Policy
    • Reporting Copyright and Other Intellectual Property Violations
  • Site Administration
    • Access Arrangements and Fees
    • Linking
    • Sweepstakes, Contests, and Promotions
    • Access to the Site
    • S. Website; Import/Export Control; Territorial Restrictions
  • Your Obligations
    • Compliance
    • Functional Compatibility and System Abuse
    • Your Cooperation and Notification
  • Warranty Disclaimers
  • Limitations on Liability and Remedies for Claims Relating to Use of this Site
  • Indemnification
  • Miscellaneous
    • Third Party Site and Other Information
    • Separate Terms and Conditions
    • Dispute Resolution and Arbitration;
    • Applicable Law and Forum
    • Modification of Terms of Use, Etc.
    • Contact Information

Intellectual Property Rights

Ownership

All content, text, images, software, data, information and other material displayed, available or present on this nativeMsg Site (“Site Content”), including any intellectual property rights in such Site Content (including without limitation trademarks and copyrights) (hereinafter “Intellectual Property Rights”), are the property of nativeMsg, its affiliates, its licensors or the designated owners, and are protected by applicable intellectual property laws. You should assume that everything you see or read on this nativeMsg Site is copyrighted and may not be used without our written permission, except as otherwise provided in these Terms of Use.

Authorized and Prohibited Uses

You may access, view, download and print copies of the Site Content only for non-commercial, informational, personal use, without modification or alteration in any way, and only so long as you comply with these Terms of Use and applicable laws. Except as may otherwise be expressly authorized by these Terms of Use, you may not otherwise reproduce, sell, publish, distribute, modify, display, or use this nativeMsg Site or any of the Site Content without our prior written permission. You also agree that you will not, including by use of any robot, scraper, or other data-mining technology or process, frame, mask, extract data or other materials from, copy or distribute the Site Content (except as may be a result of standard search engine or Internet browser usage). If this nativeMsg Site permits the e-mailing of certain Site Content or a link through the use of an “e-mail to a friend” (or similar) feature, you may send that particular Site Content or link to others by e-mail, as indicated. You agree not to infringe upon any Intellectual Property Rights or remove or modify related proprietary notices contained in this nativeMsg Site or the Site Content.

Registration and Passwords

At times, we may require you to have a password and register an account to access this nativeMsg Site or portions of this nativeMsg Site. To the extent that we do require a password or registration information, the information you provide must be correct, current, and complete. If nativeMsg believes that the information you provided is not correct, current, and complete, we have the right to refuse you access to this nativeMsg Site, or any of its resources, and to terminate or suspend your account, if any. You are responsible for maintaining the confidentiality of any passwords you are given to access this nativeMsg Site, and you are fully responsible for all activities that occur under your passwords. nativeMsg shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by nativeMsg or any other nativeMsg Party (defined below) due to someone else’s use of your account or passwords. You agree to notify us immediately of any unauthorized use of your passwords. We reserve the absolute right not to allow registration by or issue a password to any person or entity.

Information or Content that You Submit

This nativeMsg Site may provide you the opportunity to participate and post content publicly in forums, through interactive features, and through other communication functionality (collectively, “Community Forums”). You may choose to submit or post via Community Forums or otherwise images, videos, writings, questions, comments, suggestions or other content (collectively, “User Content”).

If you include personally identifiable information in your User Content, you do so at your own risk, and you may receive unsolicited messages from third parties (this nativeMsg Site may offer features that permit user-to-user communications within this nativeMsg Site and you understand that you may also receive unsolicited messages from third parties through such features). Further, we cannot ensure the security of any information you post on publicly available areas of this nativeMsg Site. You understand that by using this nativeMsg Site, you may be exposed to content that is offensive or objectionable.

You agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned. You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these Terms of Use; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these Terms of Use and grant the license below. Upon nativeMsg’s request, you will furnish it with any documentation, substantiation or releases necessary to verify your compliance with these Terms of Use.

You remain the owner of your User Content, but you acknowledge that nativeMsg must have a license from you in order to accept your User Content. Accordingly, you grant to nativeMsg and its parents, affiliates, subsidiaries, successors in interest, licensees, and assigns, and each of their officers, directors, shareholders, agents, representatives and employees (each a “nativeMsg Party” and, collectively, the “nativeMsg Parties”) an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license (but not obligation) to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your User Content for any purpose whatsoever in all formats, on or through any media, technology or device now known or hereafter developed.

You further agree that nativeMsg is free to use any ideas or concepts contained in any User Content for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and services, without any payment of any kind to you. You authorize nativeMsg to publish your User Content in a searchable format that may be accessed by users of this nativeMsg Site and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.

You agree that nativeMsg has no obligation to monitor or enforce your Intellectual Property Rights to your User Content, but has the right to protect and enforce its and its licensees’ rights to your User Content. You further acknowledge and agree that nativeMsg will not have any obligation to you with regard to User Content and that nativeMsg has the right (but not the obligation) to monitor, this nativeMsg Site and any User Content you submit and the right (but not the obligation) to delete, edit, move, or disable any such User Content in whole or in part, before or after it appears on this nativeMsg Site, in our sole discretion. We reserve the right to suspend or terminate your access to this nativeMsg Site at any time. Under no circumstances will we be liable in any way for any of your User Content including, but not limited to, any errors or omissions in your User Content, any loss of your User Content or for any loss or damage of any kind incurred as a result of your User Content.

User Content Policy

When you contribute, upload or otherwise provide User Content to this nativeMsg Site, you agree to comply with the following requirements:

  • User Content must be your own or you have the right to post it.All User Content must be created and owned by you or must be in the public domain. Also, all persons who contributed to your User Content in any way, have any rights to your User Content, or otherwise appear in your User Content must have given you permission to upload and distribute the User Content on this nativeMsg Site and elsewhere. Upon nativeMsg’s request, you will furnish nativeMsg with any documentation, substantiation or releases necessary to verify your compliance with these Terms of Use.
  • No third-party materials.Your User Content should not contain any visible logos, phrases, trademarks or other third-party materials. You may not use or submit any User Content that belongs to another person without that person’s permission (e.g., including uploading content found elsewhere on the Internet).
  • Be respectful.Do not make personal attacks. Cursing, defaming, libeling, disparaging, harassing, stalking, posting insulting comments, gossip or similar actions are prohibited.  Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, gender, sexual preference or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
  • Do not use this nativeMsg Site for commercial purposes.Your User Content may not advertise or promote a product or service except those provided on this nativeMsg Site. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
  • No User Content that is violent, illegal, or inappropriate.Your User Content must not violate any law. Your User Content may not promote any illegal activity and your User Content may not promote violence nor describe how to perform a violent act. If you do upload or post User Content that is illegal, violent in nature, or otherwise inappropriate, we reserve the right to take any action that we, in our sole discretion, deem appropriate, including reporting you to law enforcement.
  • Represent yourself truthfully.Do not impersonate any other person, user, or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person, nativeMsg, or any other entity.
  • Keep private information private.Remember that Community Forums are public and User Content will be accessible and viewable by other users. Do not post personal information about yourself or any other person (for example, never reveal any password, phone number, street address, credit card number, email address, or any information that may be used to track, contact, or impersonate an individual, or which is personal in nature). If there is something you do not want the world to see, do not post it on this nativeMsg Site.
  • Use caution when interacting with others.You are solely responsible for your interaction with other users of this nativeMsg Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Please exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
  • Don’t damage this nativeMsg Site or anyone’s computers.User Content may not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of or allow unauthorized access to this nativeMsg Site or any computer system.

We reserve the right to remove your content if we believe, in our sole and absolute discretion, that it violates these Terms of Use or any of our policies.

Reporting Copyright and Other Intellectual Property Violations

You may not use this nativeMsg Site for any purpose or in any manner that infringes the rights of any third party, including any Intellectual Property Rights. nativeMsg encourages you to report any content on this nativeMsg Site that you believe infringes your rights. Only the Intellectual Property Rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good-faith belief that content on this nativeMsg Site infringes your Intellectual Property Rights, please follow the procedures set forth below.

In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), nativeMsg has a designated agent for receiving notices of copyright infringement and nativeMsg follows the notice and take-down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide nativeMsg’s copyright agent (whose contact information is set forth below) the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe that any content on this nativeMsg Site violates your rights other than copyrights, please provide nativeMsg with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you.

Please send your notice of claims of copyright infringement on or regarding this nativeMsg Site or a complaint regarding alleged violation of rights other than copyrights to nativeMsg’s copyright agent, who can be reached as follows:

nativeMsg, Inc.
20 N. Wacker Dr., Suite 1200
Chicago, IL 60606
1-888-566-2848
terms@nativemsg.com

NOTE: This contact information is for notices or complaints regarding potential copyright and other infringement only.

We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.

It is often difficult to determine if your Intellectual Property Rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.

We will provide you with notice if your materials have been removed based on a third-party complaint of alleged infringement of the third party’s Intellectual Property Rights.

Site Administration

Access Arrangements and Fees

Your use of this nativeMsg Site shall be in accordance with any and all procedures, forms, formats, displays and operating times which may be determined, specified or modified by nativeMsg in its discretion. You are responsible for all software, hardware, interconnections, fees, expenses, costs and taxes for you to access or use this nativeMsg Site.

At this time, we do not charge a fee to use this nativeMsg Site itself (but we may charge a fee for any license or subscription-based or other services offered through this nativeMsg Site, which will be the subject of a separate agreement).

Linking

nativeMsg grants you the revocable permission to link to this nativeMsg Site; provided, however, that any link to this nativeMsg Site: (a) must not frame or create a browser or border environment around any of the Site Content or otherwise mirror any part of this nativeMsg Site; (b) must not create the false impression that nativeMsg is endorsing or sponsoring any third party or its products or services, unless nativeMsg has given prior written consent to such third party; (c) must not present false information about, or disparage, tarnish, or otherwise, in nativeMsg’s sole opinion, harm nativeMsg or its products or services; (d) must not use any nativeMsg trademarks without the prior written permission of nativeMsg; (e) must not contain content that could be construed as distasteful, offensive, or controversial or otherwise objectionable, in nativeMsg’s sole opinion; and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms of Use. By linking to this nativeMsg Site, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms of Use, nativeMsg reserves the right to prohibit linking to this nativeMsg Site for any reason in our sole and absolute discretion.

Sweepstakes, Contests, and Promotions

Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the nativeMsg Site may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User Content, and disclosures about how your personal information may be used.  It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).

Access to the Site

While it is nativeMsg’s objective is to make this nativeMsg Site accessible 24 hours per day, 7 days per week, this nativeMsg Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of nativeMsg, access to this nativeMsg Site may be interrupted, suspended or terminated from time to time. nativeMsg shall have the right at any time to change or discontinue any aspect or feature of this nativeMsg Site, including, but not limited to, Site Content and User Content, hours of availability and equipment needed for access or use.

U.S. Website; Import/Export Control; Territorial Restrictions

nativeMsg is a United States Company and the servers that host this nativeMsg Site are located in the United States or other jurisdictions, and any personal information you provide us via this nativeMsg Site may be processed by nativeMsg in the United States or any of those other jurisdictions.

The information provided on this nativeMsg Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. You agree not to submit any User Content to this nativeMsg Site or commit any act involving the transfer of information relating to any User Content in violation of applicable import/export control, espionage, national security or other applicable laws. nativeMsg controls and operates this nativeMsg Site from offices located in the United States and makes no representations or warranties that the information, products or services contained or made available by this nativeMsg Site are appropriate for use or access in other locations. Anyone using or accessing this nativeMsg Site from other locations does so on their own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of this nativeMsg Site or any portion of this nativeMsg Site, to any person, geographic area, or jurisdiction, at any time and in our sole discretion and to the limit the quantities of any content, program, product, service or other feature that we provide.

Software related to or made available by this nativeMsg Site may be subject to United States export controls. Thus, no software from this nativeMsg Site may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to this nativeMsg Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

Your Obligations

Compliance

You agree to comply with all applicable laws in connection with your use of this nativeMsg Site.

Functional Compatibility and System Abuse

You will not attempt to and will not damage, corrupt, tamper with or infect this nativeMsg Site, the Site Content, the User Content or any information or telecommunication system of nativeMsg with a virus or other malicious computer program. You will only use this nativeMsg Site for the permitted purposes stated in these Terms of Use and will not engage in abusive activity with respect to this nativeMsg Site, or undertake any other activity which may adversely affect the use or enjoyment of this nativeMsg Site by any person. You are prohibited from using any services or facilities provided in connection with this nativeMsg Site to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, nativeMsg reserves the right to release your details to system administrators at other sites and law enforcement authorities in order to assist them in resolving security incidents.

Your Cooperation and Notification

You agree to cooperate with all reasonable requests of nativeMsg and will notify nativeMsg promptly upon learning of any actual or suspected breach of these Terms of Use by you or unauthorized use or abuse of this nativeMsg Site.

Warranty Disclaimers

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THIS NATIVEMSG SITE (INCLUDING WITHOUT LIMITATION, ALL CONTENT, LINKS, MESSAGES, SOFTWARE, HARDWARE AND OTHER MATERIALS) IS PROVIDED ON AN “AS IS,” “WHERE IS,” “WHERE AVAILABLE” AND “WITH ALL FAULTS” BASIS AND IS USED ONLY AT YOUR SOLE RISK AND NATIVEMSG EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, OF ANY KIND, REGARDING THIS NATIVEMSG SITE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY, FREEDOM FROM COMPUTER VIRUSES, CUSTOM, TRADE AND QUIET ENJOYMENT. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NATIVEMSG DOES NOT WARRANT THAT YOUR USE OF THIS NATIVEMSG SITE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THIS NATIVEMSG SITE (OR THE SERVER THAT MAKES IT AVAILABLE) IS FREE OF VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS.

YOU ASSUME RESPONSIBILITY AND RISK FOR YOUR USE OF THIS NATIVEMSG SITE AND YOUR RELIANCE THEREON. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO OPINION, ADVICE, OR STATEMENT OF NATIVEMSG, WHETHER MADE ON THIS NATIVEMSG SITE OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

FURTHER, NATIVEMSG DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THIS NATIVEMSG SITE ARE LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, NATIVEMSG SPECIFICALLY DISCLAIMS SUCH WARRANTIES.

YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THIS NATIVEMSG SITE, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE SITE.

NATIVEMSG NEITHER ENDORSES NOR IS RESPONSIBLE FOR ANY OPINION, ADVICE, INFORMATION, STATEMENT OR OTHER USER CONTENT OR SUBMISSIONS MADE OR DISPLAYED ON THIS NATIVEMSG SITE BY THIRD PARTIES (INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THIS NATIVEMSG SITE) AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIM RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY SUCH CONTENT OBTAINED THROUGH THIS NATIVEMSG SITE. PLEASE REMEMBER THAT IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND RELIABILITY OF ANY OPINION, ADVICE, INFORMATION OR STATEMENT AVAILABLE ON THIS NATIVEMSG SITE. A POSSIBILITY EXISTS THAT THIS NATIVEMSG SITE COULD INCLUDE INACCURACIES OR ERRORS. ADDITIONALLY, A POSSIBILITY EXISTS THAT UNAUTHORIZED ALTERATIONS COULD BE MADE TO THIS NATIVEMSG SITE BY THIRD PARTIES. ALTHOUGH NATIVEMSG ATTEMPTS TO ENSURE THE INTEGRITY OF THIS NATIVEMSG SITE, NATIVEMSG MAKES NO GUARANTEES AS TO THIS NATIVEMSG SITE’S COMPLETENESS OR CORRECTNESS.

ALL DISCLAIMERS OF ANY KIND IN THESE TERMS OF USE ARE MADE FOR THE BENEFIT OF BOTH NATIVEMSG AND THE NATIVEMSG PARTIES.

Limitations on Liability and Remedies for Claims Relating to Use of this Site

NOTHING IN THESE TERMS OF USE RESTRICT, EXCLUDE OR MODIFY OR PURPORT TO RESTRICT, EXCLUDE OR MODIFY ANY MANDATORY STATUTORY CONSUMER RIGHTS UNDER APPLICABLE LAW.

THE NATIVEMSG PARTIES’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH ANY NATIVEMSG PARTY REGARDING USE OF THIS NATIVEMSG SITE IS TO DISCONTINUE YOUR USE OF THIS NATIVEMSG SITE.

THE NATIVEMSG PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE WHATSOEVER, OR LOSSES THAT WERE NOT FORESEEABLE TO YOU OR NATIVEMSG AT THE TIME YOU AGREED TO THESE TERMS OF USE, UNDER ANY CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY ARISING OUT OF RELATING IN ANY WAY DIRECTLY OR INDIRECTLY TO (A) THIS NATIVEMSG SITE (INCLUDING WITHOUT LIMITATION ALL INFORMATION, PRODUCTS, SERVICES, DOWNLOADS, AND THE MATERIALS AND OTHER CONTENT CONTAINED ON AND/OR OBTAINED THROUGH THIS NATIVEMSG SITE); (B) YOUR USE OF OR INABILITY TO USE, OR THE PERFORMANCE OF, THIS NATIVEMSG SITE; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE NATIVEMSG PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THIS NATIVEMSG SITE; (D) ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ERRORS OR OMISSIONS IN THIS NATIVEMSG SITE’S TECHNICAL OPERATION; OR (F) ANY DAMAGE THAT RESULTS FROM EVENTS BEYOND OUR REASONABLE CONTROL, SUCH AS DAMAGES TO ANY USER’S DEVICE, HARDWARE, DEVICE SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, EVEN IF FORESEEABLE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) OR EVEN IF THE NATIVEMSG PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF NATIVEMSG HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE NATIVEMSG PARTIES’ LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

NATIVEMSG DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED THROUGH THIS NATIVEMSG SITE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

IF ANY OF THE ABOVE PROVISIONS IN THIS SECTION ARE NOT ENFORCEABLE IN AN APPLICABLE JURISDICTION, THE MAXIMUM LIABILITY OF THE NATIVEMSG PARTIES FOR CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OF THIS NATIVEMSG SITE WILL BE LIMITED TO TEN DOLLARS ($10).  THE FOREGOING LIMITATION ON DAMAGES IS NOT INTENDED TO LIMIT THE NATIVEMSG PARTIES’ OBLIGATION TO PAY PREVAILING PARTY COSTS OR FEES IF RECOVERABLE PURSUANT TO APPLICABLE LAW.

WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT, IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF NATIVEMSG’S ACTS OR OMISSIONS, THE DAMAGES (IF ANY) CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THIS NATIVEMSG SITE OR ANY OTHER WEBSITE, APPLICATION, WIDGET, INTERACTIVE FEATURE, PROPERTY, PRODUCT, SERVICE, OR CONTENT OWNED OR CONTROLLED BY THE NATIVEMSG PARTIES.

THE NATIVEMSG PARTIES DO NOT EXCLUDE OR LIMIT IN ANY WAY THEIR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. THIS INCLUDES, WITHOUT LIMITATION, LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NATIVEMSG’S NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

BY ACCESSING THIS NATIVEMSG SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

ALL LIMITATION OF LIABILITY OF ANY KIND IN THESE TERMS ARE MADE FOR THE BENEFIT OF BOTH NATIVEMSG AND THE NATIVEMSG PARTIES.

Indemnification

To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the nativeMsg Parties from any demands, claims, investigations, damages, losses, liabilities, expenses or harms, including attorneys’ fees, arising directly or indirectly in connection with your: (i) use of this nativeMsg Site, (ii) online conduct, (iii) breach or anticipatory breach of these Terms of Use or any additional terms applicable to your use of this nativeMsg Site, (iv) dealings or transactions with other persons resulting from use of this nativeMsg Site, (v) User Content or any other information or material transmitted through your computer or account (even if not submitted by you) that infringes, violates, or misappropriates the rights of any person (including any Intellectual Property Right or right of privacy or publicity) or defames any person, (vi) your violation of any applicable law, rule, regulation, code, statute, ordinance or order of any governmental and quasi-governmental authority, including, without limitation, all regulatory, administrative and legislative authorities, (vii) any misrepresentation made by you, or (g) the nativeMsg Parties’ use of your information as permitted under these Terms of Use, the Privacy Policy, or any other written agreement between you and nativeMsg. You will cooperate as fully required by the nativeMsg Parties in the defense of any claim. The nativeMsg Parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you under these Terms of Use, and you will not in any event settle any claim without the prior written consent of a duly authorized representative of the applicable nativeMsg Party.

Miscellaneous

Third Party Site and Other Information

This nativeMsg Site may contain as a convenience to you, content, links and other information submitted or owned/operated by third parties over whom nativeMsg has no control or responsibility, as well as translations thereof, which nativeMsg may arrange. nativeMsg has no obligation to monitor, control or restrict the use of this nativeMsg Site, third-party websites accessible via links on this nativeMsg Site, or third-party websites linking to this nativeMsg Site. These other sites are not under nativeMsg’s control, and you acknowledge that (whether or not such sites are affiliated in any way with nativeMsg) nativeMsg is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites and nativeMsg makes no representation about any third-party websites that may be accessed via links from this nativeMsg Site. The inclusion of a link to a third-party website or the inclusion on a third-party website of a link to this nativeMsg Site does not imply endorsement of the third-party website by nativeMsg or any association with its operators. Your use of third-party services offered on any of those third-party websites is subject to the terms and conditions established by such third parties. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THIS NATIVEMSG SITE INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.

Separate Terms and Conditions

From time to time in connection with your use of and/or access to Site Content contained in certain areas of this nativeMsg Site, it may be necessary for you to consent to policies or terms and conditions in addition to these Terms of Use. You should read carefully any such additional terms and conditions before making any use of such Site Content or areas of this nativeMsg Site. Any such terms will not vary or replace these Terms of Use regarding any use of this nativeMsg Site, unless otherwise expressly stated.

Dispute Resolution and Arbitration; 

Any claim or controversy arising out of or relating to your use of the nativeMsg Site (including without limitation the arbitrability of any claim or controversy) shall be resolved by binding arbitration in accordance with the Federal Arbitration Act.  The parties waive their rights to file suit in court to assert any allegation, claim, or cause of action against the other, or to have a jury trial on any allegation, claim, or cause of action, and any right to do so (including without limitation the right to a jury trial) is hereby waived.  Notwithstanding the foregoing, you and nativeMsg retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, and nativeMsg retains the right to apply to a court of competent jurisdiction for provisional or conservatory relief, including without limitation pre-arbitral attachments or injunctions, and to adjudicate disputes relating to the infringement or misappropriation of intellectual property.

Any claim or controversy arising out of or relating to your use of this nativeMsg Site or these Terms of Use shall be governed by the procedural and substantive laws of the State of Illinois, without reference to choice-of-law rules.  The arbitration will be administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures then in effect.  The arbitration shall be presided over by a single arbitrator in Cook County, Illinois.  In the event this venue will cause undue hardship to you, then, the discretion of the arbitrator, the arbitration will be conducted solely on the basis of documents submitted, with the parties participating through telephonic or video conference hearings, or at a location reasonably convenient to the parties in the state in which you reside at the time the arbitration is commenced, provided that it is within the Continental U.S.  To the extent that any of the foregoing provisions are inconsistent with JAMS applicable standards then in effect, such JAMS rules shall apply.

Claims subject to this Arbitration Agreement may not be arbitrated on a class or representative basis and you will not be able to participate in an arbitration as a representative or member of any class of claimants pertaining to that claim.

All aspects of the arbitration and award shall be confidential, except to the extent disclosure is necessary in connection with an application to a court for a preliminary or permanent injunction, a petition to confirm or vacate an award, to obtain legal or other professional advice necessary for the protection of a party’s rights, or as required by law or judicial decision.

Subject to you demonstrating that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the fees charged to you by JAMS as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive to you.

The arbitrator will not have authority to award punitive or exemplary damages, and the parties waive any right to recover such damages. As part of the award, the prevailing party shall be awarded its costs, including without limitation arbitration fees, expert witness fees, if any, and reasonable attorney’s fees.

If any portion of these Terms of Use is found to be invalid, illegal or unenforceable, for any reason, that specific portion shall be severed from the rest, but such severance shall not affect the enforceability of the remainder of these Terms of Use. No waiver of any provision of these Terms of Use will be effective or enforceable unless recorded in a writing signed by the party waiving the provision, and any such waiver shall not waive or affect any other provision of this agreement.

THE FOREGOING PROVISIONS LIMIT CERTAIN RIGHTS, INCLUDING WITHOUT LIMITATION THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE JAMS RULES AND THESE DISPUTE RESOLUTION TERMS, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF; PROVIDED THAT NOTHING HEREIN WILL RESTRAIN A CALIFORNIA RESIDENT’S RIGHT, IF ANY, TO SEEK PUBLIC INJUNCTIVE RELIEF AS PERMITTED BY LAW.  OTHER RIGHTS THAT YOU WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

Modification of Terms of Use, Etc.

These Terms of Use constitute the complete agreement between you and nativeMsg with respect to their subject matter and supersede any prior agreement or communication (except for any separately executed agreement between you and nativeMsg that governs your use of any fee-based nativeMsg service). These Terms of Use are subject to change from time to time. nativeMsg will endeavor to post a notice of any changes to these Terms of Use for a period of thirty (30) days following any such modifications. Therefore, you are advised to review these Terms of Use occasionally, or at least every thirty (30) days. Your continued use of this nativeMsg Site subsequent to nativeMsg’s notice of modification of these Terms of Use (or engaging in such other conduct as we may reasonably specify) shall constitute your acceptance of the modified Terms of Use. If any term or provision of these Terms of Use shall be found to be invalid, illegal or otherwise unenforceable, such finding shall not affect the other terms or provisions of these Terms of Use, or the whole of these Terms of Use, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of you and nativeMsg shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these Terms of Use. The failure of nativeMsg to insist upon or enforce strict performance of any provision of these Terms of Use, or to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and will not limit nativeMsg’s rights with respect to such breach or any subsequent breaches. No waiver by nativeMsg of any provision of these Terms of Use will be of any force or effect unless made in writing and signed by a duly authorized officer of nativeMsg, nor will such a waiver be deemed a further or continuing waiver of such term or condition or any other term or condition. nativeMsg may assign its rights and duties under these Terms of Use to any party at any time without any notice to you. However, you may not assign, transfer, or sublicense these Terms of Use except with the prior written consent of nativeMsg. Your obligations pursuant to these Terms of Use shall survive termination of any use by you of this nativeMsg Site, any Site Content, or these Terms of Use.

Contact Information

If you have any questions regarding these Terms of Use or this nativeMsg Site, please contact us at terms@nativemsg.com.