TERMS OF USE

1. ACCEPTING THIS AGREEMENT.

These Terms of Use (“Terms of Use” or “Terms”) and the other documents that we reference below make up the requirements to use the Platform. Capitalized terms are defined either in Section 2 below, or within the context of the Agreement.

The Agreement is a legally binding contract between you and Bookmark’d, Inc. d/b/a Navi. Because it is such an important contract between us and our Users, we have tried to make it as clear as possible. For your convenience, we have presented these Terms in a short non-binding summary followed by the full legal terms.

Please note that Section 16 contains an arbitration clause and class action waiver, applicable to all Users, and explains how to opt out of arbitration. Unless you validly opt out, you agree to resolve any disputes with Navi exclusively through binding individual arbitration, with only limited exceptions. This means you and Navi are waiving the right to sue in court, have a trial by jury, or participate in a class or representative action. Please read this Section carefully, as it affects your rights.

This contract sets out your rights and responsibilities when you use the Platform. Please read it carefully. By using the Platform, you’re agreeing to the Terms. If you don’t agree with the Terms, you may not use the Platform.

2. DEFINITIONS.

The following are some key terms that will be helpful as you read these Terms. Other key terms may be defined in context within the Agreement. These are denoted by bold and capitalization.

Account represents your legal relationship with Navi and your authorization to log in to and use the Platform. It serves as a User’s identity on the Platform.

Agreement refers, collectively, to all the terms, conditions, notices contained or referenced in these Terms and all other operating rules, policies (including the supplemental terms mentioned in Section 2 above) and procedures that we may publish from time to time on the Platform.

Confidential Information means all information disclosed by Navi or made available to you through the use of or access to the Platform, whether tangible or intangible and in whatever form or medium provided.

Content refers to content featured or displayed through the Platform, including documents, information, data, text, artwork, audio, images, photographs, graphics, video, messages, tags and/or content, materials and other items, including designs, specifications, warranties and other information related to systems, appliances, and other material installed or to be installed in a home.

Documentation means the user documentation made available online to Users.

Platform means the Site and any other website application, interface, API, platform, portal, or web service application enabled or made available by Navi and any User’s access thereto.

Privacy Policy means Navi’s privacy policy found at Privacy Policy , as may be updated by Navi from time to time in its sole discretion.

Navi, we, and us refers to Bookmark’d, Inc. d/b/a Navi.

Share (and its derivatives) refers to uploading, sharing, posting, emailing, transmitting, querying, commenting, or otherwise making available through or to the Platform.

User Content is Content that is Shared by Users other than you.

Users are the individuals, companies, or organizations that have visited or are using the Platform.

You and your refers to the individual, company, or organization that accepts this Agreement, creates the Account, accesses or uses any part of the Platform, or that directs the use of the Platform in the performance of its functions.

Your Content is Content that you Share.

3. YOUR ACCOUNT.

3.1 Creating Your Account.

In order to access certain features of the Platform, you will be required to create an Account. You must be 18 years or older to use the Platform. You must not create an Account or use the Platform if you have been previously removed by Navi, or if you have been previously suspended or removed from the Platform. You must not create an Account using a false identity or information, or on behalf of someone other than yourself.

3.2 Registration Data.

In registering an Account on the Platform, you must (a) provide true, accurate, current, and complete information about yourself as prompted (the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. Navi may suspend or terminate your Account and refuse any and all current or future use of the Platform (or any project or other portion thereof) if you provide false or inaccurate data.

3.3 Responsibility for Account.

You are solely responsible for any activity on your account. If you are registering as a business entity, you personally guarantee that you have the authority to agree to the Terms on behalf of the business.

3.4 Your Account Ownership.

You do not own or have any other property interest in your Account. Furthermore, you are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you must tell us immediately of any unauthorized use of your password or any other breach of security. You may not have more than one Account at any given time. Navi reserves the right to remove or reclaim any usernames at any time and for any reason, including claims by a third party that a username violates the third party’s rights.

3.5 Communications with Navi.

Except as may be set forth in any supplemental terms, Navi only offers support via email, in-Platform communications, and electronic messages. We do not offer telephone support. Please review Section 17 (General Provisions) for how to contact Navi for legal notices.

4. FEES AND PAYMENT.

4.1 Fees.

[User shall pay all fees for the subscription purchased as provided on the order form].

4.2 Payment.

Payment of the Fees may be made through the use of a third party payment processor (“Payment Processor”). Your payment of the Fees will be subject to terms of the Payment Processor.

5. CONTENT.

5.1 Your Content.

You may not Share any of Your Content unless you have the necessary rights as contemplated in the Agreement. When you Share any of Your Content, you represent that you own or have sufficient rights to Share Your Content in connection with the Platform, including to grant the license set forth in Section 6.2 (Your Grant of License). If you Share any of Your Content to any area of the Platform that is accessible by other Users, those Users may be able to search for, see, use, modify and/or reproduce any of Your Content on or off the Platform. Navi has the right in its sole discretion to remove or block any of Your Content at any time where (a) Your Content violates applicable laws, regulations, orders, or is in violation of the Agreement, including the acceptable use policy; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Platform, Navi, or any third party; or (c) in order to respond to requests from law enforcement or any other governmental authority.

5.2 Inappropriate Content.

You are entirely responsible for all of Your Content that you Share. You must not share any of Your Content on or through the Platform, that:

• is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane;
• infringes or misappropriates any third party’s intellectual property rights or other proprietary rights;
• contains any viruses, worms or other malicious computer programming codes that may damage the Platform;
• contains any personal information, such as financial, medical or other sensitive personal information, such as government IDs, passport numbers or social security numbers;
• involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes.

5.3 User Content.

Navi is not responsible for and does not control any User Content. Navi does not approve or endorse, or make any representations or warranties with respect to any User Content. Your use of all User Content and interactions with other Users is at your own risk. You are solely responsible for your interactions with other Users of the Platform and any other third parties with whom you interact through the Platform.

5.4 Data Backup.

Navi is not responsible and will not have any liability for (a) any such loss or the accuracy of any Content; (b) the failure to store, transmit, or receive transmission of any Content; or (c) the security, privacy, storage, or transmission of other communications originating with or involving use of the Platform. Navi is not responsible for the backup of Your Content. You acknowledge that data conversion, processing and manipulation are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. You should adopt reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. You are also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data.

6. LICENSE GRANT AND OWNERSHIP.

6.1 Navi Grant of License.

Subject to your compliance with the Agreement, Navi grants to you a limited, royalty-free, worldwide, non-exclusive, non-transferable license to:

• (a) use and access the Platform, for your personal use;
• (b) generate, export and print the Content solely for your personal use.

This license does not include any right to resell or collect and use any product listings, descriptions, or prices contained on the Platform; any derivative use of the Platform, Your Content, or User Content; any downloading or copying of account information for the benefit of another builder; or any use of data mining, robots, or similar data gathering and extraction tools. Except as expressly permitted herein, the Platform and/or any portion of the Platform may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Navi’s express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you.

6.2 Your Grant of License.

You hereby grant to Navi a worldwide, non-exclusive, royalty-free, transferable, sublicensable, irrevocable, perpetual right (including any moral rights) and license to use, reproduce, perform, display, distribute, store, adapt, translate, modify, process, and create derivative works of all of Your Content, in whole or in part, and in combination with User Content and other data or materials for the purposes of (a) providing and operating the Platform, performing support, and performing additional Platform; and (b) to improve the Platform.

6.3 Feedback.

You hereby grant Navi a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Platform, without restriction, any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to any of the Platform (“Feedback”). Navi will not publicly identify you as the source of such Feedback without your permission.

6.4 Usage Data.

As between Navi and you, all data analytics, technical logs, learnings, and data generated from your use of the Platform (“Usage Data”) is the sole and exclusive property of Navi. Navi will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify you; and (b) aggregated with data across other Users.

6.5 Ownership.

Except for the limited license granted to Navi under Section 6.2 (Your Grant of License), you solely own and retain all rights, title and interest in Your Content. Except for the limited license granted to you pursuant to Section 6.1 (Navi Grant of License), Navi solely owns and retains all right, title and interest in and to the Platform, Usage Data, Feedback, and Navi Marks, including all of the software comprising any portion thereof and all related services, specifications, Documentation, technical information, corrections, modifications, derivatives, additions, improvements and enhancements to and all intellectual property rights in the foregoing.

7. ACCEPTABLE USE AND MONITORING.

7.1 Compliance with Laws and Regulations.

You are responsible for complying with all applicable laws, rules, and regulations in all of your actions related to your use of the Platform, regardless of the purpose of the use.

7.2 Conduct and Restrictions.

You will not, and will not permit or enable any other third party to:

• (a) sell, resell, lease, lend, distribute, provide access to, sublicense, or otherwise make available the Platform, in whole or in part, to a third party;
• (b) in any way alter, change, modify, adapt, translate or make derivative works of the Platform;
• (c) decompile, disassemble, or reverse engineer the Platform or any elements of the Platform, or otherwise derive source or object code or non-public APIs from the Platform or any elements thereof, except as expressly permitted by applicable law (and then only upon advance written notice to Navi);
• (d) transmit any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data or personal information;
• (e) conduct security or vulnerability tests of the Platform, interfere with its operation, or circumvent its access restrictions;
• (f) use the Platform to develop a product that competes with the Platform or use the Platform to provide, or incorporate the Platform into, any substantially similar cloud-based service for the benefit of a third party;
• (g) do any “mirroring” or “framing” of any part of the Platform, or create Internet links to the Platform that include log-in information, user names, passwords, and/or secure cookies;
• (h) sublicense or operate the Platform for timesharing, rental, outsourcing, or service bureau operations, or to train persons;
• (i) remove or obscure any proprietary or other notices contained in any Platform;
• (j) use the Platform in violation of any Navi agreement or policy;
• (k) access the Platform by any means other than through the interfaces provided by Navi.

7.3 Monitoring.

Navi may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Platform and/or Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the Sharing of Your Content in any form.

7.4 Removal or Disclosure.

Navi reserves the right, except to the extent prohibited by applicable law, to:

• (a) remove or refuse to process any of Your Content for any or no reason in our sole discretion;
• (b) take any action with respect to any of Your Content that Navi deems necessary or appropriate in its sole discretion, including if Navi believes that Your Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users or the public, or could create liability for Navi;
• (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
• (d) disclose any Content on or in the Platform, including Your Content, in Navi’s possession or control in connection with your use of the Platform, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Navi, its Users or the public, and all enforcement or other government officials, as Navi in its sole discretion believes to be necessary or appropriate;
• (e) take appropriate legal action, including referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Platform or if Navi otherwise believes that criminal activity has occurred;
• (f) terminate or suspend your access to all or part of the Platform for any or no reason, including any violation of the Agreement.

8. THIRD-PARTY SERVICES.

8.1 Third-Party Websites, Applications and Ads.

The Platform may use and/or contain links to third-party websites, mobile apps, software, products, services, and advertisements for third parties, including connections with and to the Payment Processor (collectively, the “Third-Party Services”). Navi has no control over these Third-Party Services or their content and does not assume responsibility or liability for any content, opinions, or material available on them. Third-Party Services may include websites operated by third parties that Navi engages to provide certain services to you on Navi’s behalf. The Platform may also contain data or other materials that are made available by third parties, or content that is based on such third-party data or other materials.

8.2 Disclaimer.

Navi does not own the Third-Party Services or the Content, opinions, and materials contained therein. Navi expressly disclaims, and does not assume, any responsibility or liability for any Third-Party Services, or any Content, opinions, or material available on Third-Party Services, or such Third-Party Services’ privacy practices with respect to information that you provide via the Third-Party Services. Navi does not endorse the content of any Third-Party Services or represent or warrant that a Third-Party Service is or will be free of computer viruses or other harmful code that can impact your computer or other web-access device. We encourage you to review any Third-Party Service's terms of use and privacy policy as those apply to your use of the Third-Party Service and any information that they collect.

9. INDEMNIFICATION.

9.1 Indemnification.

You must indemnify and hold harmless Navi, its affiliates, subsidiaries, shareholders, officers, directors, employees, licensors, contractors, agents and representatives (each, a “Navi Party” and collectively, the “Navi Parties”) against any and all losses, liabilities, damages, penalties, liens, fees (including reasonable attorneys’ fees, disbursements and costs of investigation), costs and expenses (collectively “Losses”) suffered, incurred or sustained by any Navi Parties or to which any Navi Parties become subject, resulting from or arising out of or relating to any third party claims arising out of: (a) Your Content; (b) your use of, or inability to use, the Platform; (c) your violation of any term of this Agreement; (d) your violation of any rights of another party, including the infringement, violation or misappropriation of any intellectual property rights or proprietary rights of a third party; (e) your violation of any applicable laws, rules or regulations; and (f) your willful, grossly negligent, tortious or criminal acts or omissions.

9.2 Defense.

Navi reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Navi in asserting any available defenses. The applicable Navi Party will provide you with written notice of any claim for which it seeks indemnification under this Section 9.

10. WARRANTIES.

10.1 Your Representations and Warranties.

You represent and warrant to Navi that: (a) your Content does not infringe, violate, or misappropriate the intellectual property rights or proprietary rights of any third party; (b) you have obtained all necessary rights and consents to provide Your Content under this Agreement; (c) you hold all applicable licenses and qualifications required by applicable law and will otherwise comply with all applicable law, rules, and regulations; (d) you will comply with all applicable law, rules, and regulations; and (e) you satisfy and will continue to satisfy all eligibility requirements to use the Platform, as such requirements may be revised or updated.

10.2 Disclaimer.

(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM IS MADE AVAILABLE BY NAVI “AS IS” AND WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS. NAVI MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, CHARACTER, NATURE, CAPABILITY, PERFORMANCE, SECURITY, AVAILABILITY, SUITABILITY, TITLE, SOURCE OR ANY OTHER CHARACTERISTIC OF THE PLATFORM OR ANY PORTION THEREOF. NAVI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (iii) ANY WARRANTY THAT THE PLATFORM WILL BE SECURE OR ERROR-FREE, WILL MEET YOUR REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.

(b) NAVI DISCLAIMS ANY AND ALL LIABILITY TO USERS ARISING OUT OF OR RELATING TO (I) THE RELATIONSHIP BETWEEN YOU OR ANY THIRD PARTY CONTACTING YOU THROUGH THE PLATFORM, (II) ANY THIRD PARTY SERVICE; (III) THE PAYMENT PROCESSOR, AND (IV) USER CONTENT.

(c) ANY CONTENT, INCLUDING USER CONTENT, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ALL DAMAGE TO YOUR PROPERTY OR ALL OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

11. LIMITATION OF LIABILITY.

11.1 Liability Cap.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NAVI BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEY’S FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE GREATER OF (a) THE AMOUNT OF PAYMENTS MADE BY YOU TO NAVI DIRECTLY FOR YOUR USE OF THE PLATFORM; OR (b) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH IN THIS ARTICLE 11 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO YOUR OBLIGATION TO PAY FOR FEES DUE UNDER THIS AGREEMENT, IF ANY, OR ANY OTHER AGREEMENT BETWEEN YOU AND NAVI.

11.2 Exclusion of Certain Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NAVI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

11.3 No Liability for Conduct of Third Parties.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND OTHER THIRD PARTIES ON THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT THE NAVI PARTIES ARE NOT LIABLE FOR THE CONDUCT OF OTHER USERS OR OTHER THIRD PARTIES, INCLUDING OPERATORS OF THIRD-PARTY SERVICES. YOU UNDERSTAND THAT NAVI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF OTHER USERS OR THIRD PARTIES. NAVI MAKES NO WARRANTY THAT THE PLATFORM OR PRODUCTS PROVIDED BY OTHER USERS AND THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NAVI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR PLATFORM, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE PLATFORM.

12. DISPUTES WITH OTHER USERS.

12.1 Disputes between Users.

In the event of a dispute between you and another User or a third party, you should contact the other party and attempt to resolve the dispute.

12.2 Assistance from Us.

Users who are unable to resolve a dispute related to a transaction on the Platform may contact Navi through your registered Account. In our sole discretion, Navi will attempt to help you resolve disputes in good faith, but we will not make judgments or determinations regarding legal issues or claims. Navi has no obligation to resolve, or to assist in resolving, any disputes.

12.3 Release.

You release Navi from any claims, demands, and damages arising out of disputes with other Users or third parties.

13. CONFIDENTIALITY.

13.1 Non-Disclosure.

Navi may disclose or make available Confidential Information to you whether or not pursuant to this Agreement or through the Platform. You must: (a) hold in confidence and safeguard the Confidential Information of Navi from unauthorized use, access, disclosure or processing using no less than a commercially reasonable degree of care at least as strict as the level of care used by you to protect its own confidential information; (b) not use or exploit the Confidential Information in any way except for the purposes of using the Platform; and (c) not disclose or make available such Confidential Information (in whole or in part) to any person or entity other than to its representatives who: (i) need access to such Confidential Information pursuant to their provision of services to you or as part of their employment by you; and (ii) are bound by obligations with respect to Confidential Information consistent with, and no less protective than this Agreement. You are responsible for any and all breaches of the Agreement caused by its representatives, employees, or other third parties who gain access to Confidential Information through you. You must promptly report to Navi any actual or suspected violation of the Agreement and take all reasonable further steps to prevent, control or remedy any such violation.

13.2 Exclusions.

Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of your breach of the Agreement; (b) is obtained by you on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; or (c) you establish, by documentary evidence, was or is independently developed by you without using any Confidential Information of Navi.

13.3 Injunctive Relief.

Navi may seek injunctive or other equitable relief for an actual or threatened breach of this Section 13.

14. CANCELLATION, TERMINATION AND SUSPENSION.

14.1 Your Termination.

You may cancel your Account at any time by [_______]. Cancellation of your Account automatically terminates this Agreement.

14.2 Suspension by Navi.

In addition to the rights set out elsewhere in this Agreement, Navi may suspend or terminate your access to your Account or any of the Platform, including any Project, with or without notice, in the event that (a) you provide any information that is untrue, inaccurate, incomplete or not current, or Navi has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current; (b) you breach the terms of this Agreement; (c) Navi reasonably believes such action is necessary to protect the security or integrity of any of the Platform or any data therein; or (d) your use of or access to the Platform risks material harm to the Platform, other Users, or others or violation of law.

14.3 Modification, Suspension or Discontinuance of Platform.

We reserve the right to change, suspend, or discontinue any of the Platform for you, any or all Users, at any time, for any reason, including those laid out in our policies under the Agreement. We will not be liable to you for the effect that any changes to the Platform may have on you, including your income or your ability to generate revenue through the Platform.

14.4 Termination by Navi.

Navi may terminate this Agreement at any time, without cause.

14.5 Effect of Termination.

Upon cancellation of your Account or other termination of the Agreement, your right to use the Platform will automatically terminate and Navi may delete Your Content associated therewith. If we suspend your Account or access to the Platform, we may also bar your further use or access to the Platform. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

14.6 Survival.

All provisions of this Agreement that by their nature should survive termination will survive termination — including: license rights, ownership provisions, confidentiality, warranty disclaimers, indemnity, and limitations of liability.

15. ARBITRATION AGREEMENT.

15.1 Applicability of Arbitration Agreement.

Subject to the terms of this Agreement, you and Navi agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any products sold or distributed through the Platform or this Agreement and prior versions of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Navi may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Navi may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement, as well as claims that may arise after the termination of this Agreement.

15.2 Informal Dispute Resolution.

(a) There might be instances when a Dispute arises between you and Navi. If that occurs, Navi is committed to working with you to reach a reasonable resolution. You and Navi agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Navi therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

(b) The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Navi that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to info@joinnavi.com or regular mail to our offices located at 3350 SW 148 Avenue, Miramar, FL 33027. The Notice must include: (i) your name, telephone number, mailing address, e-mail address associated with your Account (if you have one); (ii) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (iii) a description of your Dispute.

(c) The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

15.3 Waiver of Jury Trial.

YOU AND NAVI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Navi are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.4 Waiver of Class and Other Non-Individualized Relief.

YOU AND NAVI AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 15.4 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

15.5 Injunctive Relief.

Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 15.13 (Batch Arbitration).

15.6 Rules and Forum.

This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Navi agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at Consumer Arbitration Rules.

15.7 Request.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

15.8 Fees.

Each party’s obligation to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

15.9 Confidentiality.

You and Navi agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

15.10 Arbitrator.

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of [Delaware] and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 15.13 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

15.11 Authority of Arbitrator.

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion thereof, except for the following:

• (a) all Disputes arising out of or relating to Section 15.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 15.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 15.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator;
• (b) except as expressly contemplated in Section 15.13 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator;
• (c) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator;
• (d) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.

The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 15.13 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

15.12 Attorneys’ Fees and Costs.

The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Navi need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

15.13 Batch Arbitration.

To increase the efficiency of administration and resolution of arbitrations, you and Navi agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Navi by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Navi. You and Navi agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

15.14 30-Day Right to Opt-Out.

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 3350 SW 148 Avenue, Miramar, FL 33027 or info@joinnavi.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

15.15 Invalidity, Expiration.

Except as provided in Section 15.15 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Navi as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

15.16 Modification.

Notwithstanding any provision in this Agreement to the contrary, we agree that if Navi makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to 3350 SW 148 Avenue, Miramar, FL 33027, your continued use of the Platform, including the acceptance of products and Platforms offered on the Platform following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Platform, any communications you receive, any products sold or distributed through the Platform or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Navi will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

16. GENERAL PROVISIONS.

16.1 Electronic Communications.

The communications between you and Navi may take place via electronic means, whether you visit the Platform or send Navi emails, or whether Navi posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Navi in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Navi electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

16.2 Assignment.

The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Navi’ prior written consent. Navi may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

16.3 Force Majeure.

Navi will not be liable for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of the affected party, including acts of God, flood, fire, loss of electricity or other utilities, epidemic, pandemic, act of a public enemy or terrorist, act of any military, civil, regulatory or governmental authority, change in law or regulation, labor problem or unavailability of supplies and any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by Navi with reasonable care (“Force Majeure Event”). A Force Majeure Event does not excuse User’s payment obligations under this Agreement.

16.4 Questions, Complaints, Claims.

If you have any questions, complaints or claims with respect to the Platform, please contact us at: info@joinnavi.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

16.5 Agreement Updates.

When changes are made, Navi will make a new copy of the Agreement available on the Platform, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for Users without an Account and thirty (30) days after posting for Users with an Account. Navi may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU MUST STOP USING THE PLATFORM.

16.6 Exclusive Venue.

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Navi agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in [Delaware].

16.7 Governing Law and Jurisdiction.

THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.

16.8 Choice of Language.

It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.

16.9 Notice.

Where Navi requires that you provide an email address, you are responsible for providing Navi with a valid and current email address. In the event that the email address you provide to Navi is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Navi’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Navi at the following address: 3350 SW 148 Avenue, Miramar, FL 33027. Such notice shall be deemed given when received by Navi by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

16.10 Waiver.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

16.11 Severability.

If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.

16.12 Section Headings and Summaries.

Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.

16.13 Export Control.

You may not use, export, import, or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform, and any other applicable laws. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Platform for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Navi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Navi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

16.14 Entire Agreement.

The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.