Terms and Conditions Governing Use of the NorthStar Midstream Website and all Informational Services Provided via the Website

Introduction:

Users.

The following Terms and Conditions (the “Terms” or the “Agreement”) constitute a binding agreement between NST Transload Operating Company, LLC d/b/a NorthStar Midstream (“NSM”) and you, a user of the NorthStar Midstream website (“Website”), which you have visited as a temporary user, either as an individual of at least thirteen years of age, or as a representative of a corporate entity who is a client or customer of NSM.  Because these Terms apply equally to an individual visitor and to a visitor who is representing a corporate entity, both are referred to as “You” (including possessives “Your” and “Yours”) or “Customer” in this Agreement.  These Terms govern Your use of the Website.

(1)   No Children under Thirteen Years of Age.

If you are under the age of thirteen, you may not use this Website by yourself.  This Website is available to and accessible only by individual persons over the age of thirteen.

(2)   Users between Thirteen and Eighteen Years of Age.

The age of majority in most U.S. states is eighteen years of age.  If You are over the age of thirteen but under the age of eighteen, You may use the Website, but only with the consent of Your parent or guardian, which parent or guardian may be liable for your activities on the Website.  Because your parent or guardian may bear this liability, and because NSM encourages, as a matter of policy, communication between parents and children and parental awareness of children’s activities, including knowledge of the websites that You visit, You must make your parent or guardian aware that You are intending to use the Website, and your parent or guardian must accompany You during your visit to the Website, and You hereby explicitly agree that You have this affirmative obligation.

(3)  Individual Customers.

If You are an individual Customer, You hereby represent and warrant to NSM that You are at least eighteen (18) years of age or and otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the Terms.

(4)  Entity Customers. 

If You are going to use the Website as a representative of a corporate entity, You hereby represent to NSM that You have the authority to bind the entity you represent to these Terms as the Customer, and Your acceptance of these Terms will be treated as acceptance by that entity as the Customer.  In that event, You acknowledge and understand that “You” and “Your” will refer to that entity as the Customer, which Customer is bound to these Terms, along with all officers, directors, employees, contractors, agents, or volunteers in and under Customer’s control and/or supervision, who are also bound to these Terms.

Updates to the Terms.

When using the Website and/or any services provided by NSM via the Website, You will be subject to any updates and revisions to these Terms.  NSM reserves the right, at NSM’s sole discretion and without prior notice to You, to update, amend, change, modify, add, or remove portions of these Terms at any time by posting the updated Terms (“Updates”), which may include new provisions requiring fees for access to certain Content (as defined below in Section 1).  Unless otherwise stated in writing by NSM, all Updates shall be effective immediately upon posting on the Website, and Your continued use of the NSM Website after the posting of any Updates to these Terms constitutes Your binding acceptance of such changes.  You acknowledge and agree that it is Your responsibility to ensure that You are current and up-to-date in Your understanding of and compliance with these Terms, notwithstanding whether or not NSM has posted any notice of Updates to these Terms on the Website, and you acknowledge, understand, and agree that You must periodically check these Terms for Updates.

CONTENT

Content Defined.

The Website contains information and a variety of materials and other items relating to NSM’s products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website and the compilation, assembly, and arrangement of the materials of the Website and any and all copyrightable material (including source and object code), trademarks, logos, trade names, service marks, company names, and trade identities of various parties, including those items owned by NSM and those owned by third parties and licensed to NSM for use on the Website (collectively, “Trademarks”), and other forms of intellectual property included in the Website, and/or in any other product or solution or service provided by NSM.  All of the foregoing, including any solutions, products, and/or services provided through the Website by NSM as a licensee of such items is defined and referred to collectively in these Terms as “Content”.

Ownership.

The Website (including any past, present, and future versions) and the Content are either owned by NSM or controlled by NSM through licenses granted to NSM by its licensors.  All right, title, and interest in and to the Content available via the Website is the property of NSM or of our licensors, and is protected by U.S. federal copyright, trademark, patent, and/or trade secrets laws and by other federal and state intellectual property, and unfair competition laws.  In addition to NSM’s copyright ownership of the Content, NSM owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website.  “Intellectual Property Rights,” as used in these Terms, means any and all rights belonging to NSM and existing under patent law, copyright law, semiconductor chip protection law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information.  As between You and NSM, NSM retains all its respective titles, interests, and ownership in the Website and the Content, and You understand and acknowledge that neither You nor any other Customer acquires any ownership in any Intellectual Property Rights regarding the Website or the Content under these Terms.

Reserved Rights of Content Access Charges.

NSM reserves the right, upon reasonable notice, to charge for access to some or all of the Content, to charge for access to certain premium Content functionality on some or all of the Website, or to require a subscription or registration to access some or all of the Website.  NSM further retains the right to change the terms and conditions for accessing the Website or portions of the Website, and the right to restrict access to the Website or portions of the Website, in whole or in part, based on any lawful eligibility requirements NSM may elect to impose (e.g., geographic or demographic limitations).  NSM may modify, revalue, or make the registration free at its sole discretion without advance notice or liability.  You understand and acknowledge that it is your responsibility to keep current with the Website’s fees as part of your responsibility to review Updates to these Terms.

Limited License Granted to You.

Subject to Your strict and ongoing compliance with these Terms, NSM grants You a limited, non-exclusive, revocable, non-assignable, and non-transferable license to use the Website (the “Limited License”).  The foregoing Limited License does not give You any ownership of, or any other intellectual property interest in, any Content, and NSM reserves the right to suspend or terminate Your Limited License, at any time and for any reason, Your Limited License without any advance notice to You, and without any liability to You or anyone.  This Agreement and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Website.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to You are reserved by NSM.  Any unauthorized use of any Content or the Website for any purpose is strictly prohibited.

Rights of Others.

In using the Website, You must respect the rights of others.  Your unauthorized use of Content may violate rights owned by NSM or its licensors, and/or Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws.  If You make unauthorized use of Content owned by NSM or its licensors or of materials owned by a third party, Your use may result in personal liability for You, as well as potential criminal liability.

CUSTOMER-GENERATED CONTENT: CONTENT YOU SUBMIT.

Your Ownership of Customer-Generated Content.

Although NSM has no obligation to do so, NSM may provide a Customer with the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, email communications, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials created by a Customer (collectively, “Customer-Generated Content”).  Subject to the rights and license You grant to NSM under these Terms (see below), You retain whatever legally cognizable right, title, and interest that You have in Your Customer-Generated Content.  You understand and acknowledge that NSM has no obligation to monitor or enforce Your intellectual property rights to Your Customer-Generated Content.  You also understand and acknowledge that NSM is under no obligation to provide You with an opportunity to submit Customer-Generated Content on the Website

Your Customer-Generated Content Is Not Confidential.

You may have the opportunity to share Your Customer-Generated Content with other Customers whom You select, in accordance with the available privacy settings on the Website.  Please be aware that even if You share Your Customer-Generated Content with a limited number of other Customers, Your Customer-Generated Content will not be private or confidential, and You do not have a right of privacy in regard to Your Customer-Generated Content.  NSM has no obligation to You in regard to Your Customer-Generated Content and no obligation to maintain Your Customer-Generated Content as confidential or private.  Therefore, do not post and/or share as Customer-Generated Content any personally identifiable information such as names, addresses, telephone numbers, email addresses, credit card numbers, social security numbers, bank account numbers or other private information which relates to You or to another specific individual (hereinafter, “PII”).  Under these Terms, You acknowledge that Your Customer-Generated Content is non-confidential.  Further, You acknowledge that the Internet may be subject to breaches of security and that You are aware that submissions of Customer-Generated Content may not be secure, and You will therefore undertake to refrain from including any PII in Your Customer-Generated Content.

Your License to NSM Regarding Your Customer-Generated Content.

You hereby grant to NSM a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of Your Customer-Generated Content for any purpose whatsoever, in all formats, on or through any media, software, formula, or medium now known or yet to be  developed in the future, and with any technology or devices now known or yet to be developed in the future. Without limitation, the rights You are granting to NSM include the right to:

(1) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and combine Your Customer-Generated Content with other materials; remove such Customer-Generated Content and combine same with other materials; and

(2) use any ideas, concepts, know-how, or techniques contained in Your Customer-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services; and

(3) the right to manage and/or remove Your Customer-Generated Content from the Website at any time and for any reason in NSM’s sole discretion;

(4) the right to refrain from making any use of Your Customer-Generated Content.

In order to further effect the rights and license that You grant to NSM to Your Customer-Generated Content, You hereby waive any moral rights (including right of attribution and right of preservation of the integrity of Your Customer-Generated Content) that You may have in any Customer-Generated Content, even if it is altered or changed by NSM in a manner not agreeable to You. You understand that You will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section because, You understand and acknowledge, You are granting this license to Your Customer-Generated Content as a pre-condition to Your use of the Website.

Further, You understand and acknowledge that the license You are granting to NSM is perpetual and will continue in full force and effect even if You remove Your Customer-Generated Content from the Website.

NSM’s Exclusive Right to Manage All Customer-Generated Content.

NSM may, but has no obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of Your Customer-Generated Content, and NSM may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Your Customer-Generated Content without notice to You and without any liability to You or any third party. NSM reserves the right to block or remove Customer-Generated Content that is offensive, obscene, lewd, lascivious, salacious, violent, harassing, threatening, abusive, infringing, illegal or otherwise objectionable in NSM’s sole discretion and judgment.  In addition, NSM reserves the right to enforce the rights of third parties and the restrictions set forth in other provisions of this Agreement, whenever notice of a violation comes to NSM’s attention. You understand and acknowledge that NSM has no obligation to post, display, maintain, store, access, cache, or archive Your Customer-Generated Content in any manner or for any period of time.

(1)  You understand and acknowledge that when using the Website, You may be exposed to Customer-Generated Content from a variety of other Customers, and that NSM is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to any such Customer-Generated Content.  You also understand and acknowledge that NSM does not endorse any Customer-Generated Content or any opinion, recommendation, or advice expressed in Customer-Generated Content, that NSM expressly disclaims any and all liability in connection with the Customer-Generated Content, and that, as emphasized in these Terms, NSM has the unlimited right to take down or remove from the Website any Customer-Generated Content at any time and for any reason in its sole discretion.  YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CUSTOMER-GENERATED CONTENT THAT IS INACCURATE, OR THAT YOU BELIEVE IS OFFENSIVE, OBSCENE UNDER THE STANDARDS OF THE RELEVANT COMMUNITY, OR OTHERWISE OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST NSM WITH RESPECT TO ANY OBJECTION YOU MAY HAVE IN REGARD TO CUSTOMER-GENERATED CONTENT.

Your Representations and Warranties and Your Indemnification Obligations  for Your Customer-Generated Content.

Each time You submit any Customer-Generated Content, You represent and warrant the following:

(1)  that You are the sole author and owner of the intellectual property and other rights to the Customer-Generated Content, and/or You have a lawful right to submit the Customer-Generated Content and grant NSM the rights to it that You are granting by these Terms; and

(2)  the Customer-Generated Content is accurate; and

(3)  the Customer-Generated Content is not offensive, obscene, lewd, lascivious, salacious, violent, harassing, threatening, abusive, illegal, injurious, harmful to any other person, or otherwise objectionable; and

(4)  the Customer-Generated Content does not and will not infringe any intellectual property or other right of any third party; and

(5) the Customer-Generated Content will not violate this Agreement.

Accordingly, based on Your representations and warranties above, You understand, acknowledge, and agree that You shall indemnify and hold harmless NSM, its officers, directors, employees, agents, and representatives from, and, at Your expense, shall defend NSM against, any loss, damage or expense (including reasonable legal costs) that NSM incurs or become liable for as a result of any breach by You of any of the representations and warranties You have made above in regard to Your Customer-Generated Content.

NSM’s Right to Use Non-Personally Identifiable Data.

You understand, agree, and acknowledge that NSM may gather and aggregate non-personally identifiable information data regarding Customers and users of the Website, including You, and their behavior and activities in regard to their use of the Website and the Content (“Data”).  NSM may use and retain this Data for any purpose, including improving or modifying the Website, without any compensation owed to You or to any other Customer.

YOUR CONDUCT ON THE WEBSITE.

You hereby understand, acknowledge, and agree that You and any persons under Your control and/or supervision who access the Website and the Content will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Content or the Website in whole or in part; and/or remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to NSM’s ownership of the Content and the Website; and/or copy, reproduce, publish, distribute, or redistribute any of the Content, in whole or in part, to any person who is not an authorized User of the Website; and/or use or attempt to use the Website or the Content to invade the privacy of any person in violation of applicable state laws; attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Content, the Website, any rights granted under this Agreement, or any intellectual property rights owned by NSM to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Website or the Content, or  otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Website or the Content; and/or monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or frame or use framing techniques to enclose any Content (including any images, text, or page layout) and display any Content within the frame on another website; and/or insert any code or product to manipulate Content in any way that affects, adversely or otherwise any other User’s experience with the Website; and/or make or attempt to make any commercial use or exploitation of the Website or any of the Content; and/or circumvent, disable or otherwise interfere with the security features of the Website or the Content, or any features that prevent or restrict use or copying of any Content or enforce limitations on use of the Content; and/or collect or harvest any PII from the Website; and/or create or transmit unwanted electronic communications or “spam” to other Users of the Website; and/or transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on the Website; and/or use the Website or the Content to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or use any metatags or any other “hidden text” utilizing any NSM trademarks and/or use any device, software or routine that interferes with the proper working of the Website or the Content; and/or claim the Website or any of the Content as Your property, Your creation, or Your work of authorship, in whole or in part; and/or contest or dispute NSM’s ownership of all intellectual property rights in the Website and the Content; and/or engage in any activities through or in connection with the Website that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, salacious, injurious, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to NSM; and/or use the Website and/or the Content, in whole or in part, in any manner not authorized by this Agreement.

YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS BY YOU OR BY ANY PERSONS SUBJECT TO YOUR CONTROL AND/OR SUPERVISION WHO ACCESS THE WEBSITE PURSUANT TO YOUR DIRECTION, MAY SUBJECT YOU TO CRIMINAL LIABILITY AND/OR LIABILITY FOR DAMAGES, COSTS, EXPENSES, OR FEES (INCLUDING ATTORNEY’S FEES) INCURRED BY NSM IN ENFORCING ITS RIGHTS AGAINST YOU UNDER THIS AGREEMENT.

REPORTING INTELLECTUAL PROPERTY INFRINGEMENT.

DMCA Notice for Copyright Infringement.

NSM will respond appropriately to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”), as set forth below.  If You own a copyright in a work (or represent such a copyright owner) and believe that the copyright in that work has been infringed by an improper posting of it as part of Customer-Generated Content on the Website, then You may send us a written notice that includes all of the following:

(1)  a subject line that says: “DMCA Copyright Infringement Notice”; and

(2)  a description of the copyrighted work that You claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works; and

(3)  a description of the location of the infringing material on the Website; and

(4)  Your full name, address, telephone number, and e-mail address; and

(5)  a statement by You that You have a good faith belief that use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner; and

(6)  a statement by You, made under penalty of perjury, that all the information in Your notice is accurate, and that You are the copyright owner (or, if You are not the copyright owner, then Your statement must indicate that You are authorized to act on the behalf of the owner); and,

(7) Your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), the characters “//s//” followed by Your full typed name, which will serve as Your electronic signature.

NSM may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and NSM may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

NSM will only respond to DMCA Notices that it receives by mail or e-mail at the addresses below:

By Mail:
NorthStar Midstream
c/o Fredrikson & Byron, P.A.
Attention: Paul E. Thomas
200 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402

By E-Mail:
dmca@NorthStarMidstream.com

We may send the information that You provide in Your DMCA Notice to the person who provided the allegedly infringing work.  That person may elect to send us a DMCA Counter-Notification.

Without limiting NSM’s other rights, NSM may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by NSM.

DMCA Counter-Notification regarding Copyright Infringement.

If access on the Website to a work that You submitted to NSM is disabled or the work is removed as a result of a DMCA Notice, and if You believe that the disabled access or removal is the result of mistake or misidentification, then You may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

(1)  a subject line that says: “DMCA Counter-Notification”; and

(2)  a description of the material that has been removed or to which access has been disabled and the location at which the material appeared on the Website before it was removed or disabled; and

(3)  a statement made under penalty of perjury that You have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and

(4)  Your full name, address, telephone number, e-mail address, and the username of Your Account; and

(5)  a statement that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the District of Minnesota), and that You will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(6)  Your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), the characters “//s//” followed by Your full typed name, which will serve as Your electronic signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than 10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

INTERNET ACCESS

Your Use of an Internet Access Device and Third-Party Components.

You understand and agree that Your use of any Internet Access Device and/or all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items used by You to access the Website (“Third-Party Components”) are the sole and exclusive responsibility of You, including all costs of Your use of such Third-Party Components, and that NSM has no responsibility for such third-party components, services, or Your relationships with such third parties.  You agree that You shall at all times comply with the lawful terms and conditions of Your agreements with such third parties.   NSM does not represent or warrant that the Website and the Content are compatible with any specific third-party hardware or software or any other Third-Party Components.  You are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate and access the Website.

Wireless Features.

The Website may offer certain features and services that are available to You via Your wireless Internet Access Device.  These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to Your wireless Internet Access Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features.  Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Internet Access Device. You should check with Your carrier to find out what plans are available and how much they cost.  Contact Your carrier directly with questions regarding these issues.  You understand and acknowledge that NSM has no responsibility or liability for Your ability or inability to access or take advantage of any Wireless Features due to Your carrier, Your phone service plan, Your Internet Access Device, or any other Third Party Component.

YOUR GENERAL REPRESENTATIONS AND WARRANTIES.

You represent and warrant the following in respect of this Agreement:

  1. You have the necessary authority to enter into this Agreement; and
  2. If You are an individual, You are over the age of eighteen or you are over the age of thirteen and accessing this Website with the advance consent of your parent or legal guardian; and
  3. You will respect and abide by all of Your obligations under this Agreement, and You will perform Your obligations under this Agreement diligently; and
  4. If You are an entity Customer, You will monitor all of the persons under Your employment, control, and/or supervision to ensure their compliance with these Terms, and You understand, acknowledge, and agree that You are entirely responsible for such compliance by all persons subject to Your employment, control, and/or supervision; and
  5. You will comply with all laws and regulations applicable to this Agreement and to the Website and Content, including all laws regarding personal rights of privacy and publicity.

YOUR INDEMNIFICATION RESPONSIBILITIES.

You shall indemnify and hold harmless NSM, its officers, directors, employees, agents, and representatives from, and, at Your expense, shall defend NSM against, any loss, damage or expense (including reasonable legal costs) that NSM incurs or become liable for as a result of any breach by You of any of the terms of this Agreement; any negligent, reckless or willful act or omission by You or Your agents; any failure by You to comply with applicable laws in performing under this Agreement; any misuse by You or by persons under Your employment, control, and/or supervision of the Website and/or the Content; or, any claim made against NSM by any third party for which NSM is not liable under this Agreement, and which arises as a consequence of Your use of the Website.  You shall reimburse NSM for its expenses under this Section as they are incurred.  NSM shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. You, in the defense of any such claim, action, or Proceeding (as defined below) arising under this Section shall not, except with the written consent of NSM, enter into any settlement which adversely affects NSM’s rights or which does not include, as an unconditional term, a release granted to NSM of all liabilities in respect of such claim, action or proceeding.

Upon commencement of any Proceeding (as defined below), Your indemnification obligation shall be conducted in accordance with the following procedure:

  1. Notification.  NSM shall promptly notify You upon commencement of a Proceeding for which NSM intends to seek indemnification against Damages, and/or advancement of expenses from You.  Failure to notify You will not relieve You from Your obligations, if any, to indemnify, and advance expenses of NSM with regard to any liabilities incurred and expenses paid prior to such notification unless, and then only to the extent that You have been damaged by such delay in notification.
  1. Assumption of Defense.  You may, alone or jointly with any other indemnifying party, assume the defense of a Proceeding for which You received notice or otherwise, and shall promptly notify NSM as to whether You will assume such defense.  If You assume such defense, You will not be liable to NSM for any expenses subsequently incurred by NSM in connection with the defense of such Proceeding unless NSM shall have reasonably concluded that there is a conflict of interest between You and NSM in the conduct of the defense of the Proceeding, and such conclusion is supported by an opinion of counsel experienced in the defense of litigation against corporate directors and officers, which counsel and opinion shall be satisfactory to You and Your legal counsel.
  1. Approval of NSM’s Counsel.  In the event You do not assume the defense of the Proceeding, NSM may engage legal counsel to conduct such defense.  In such event You shall have the right to approve the NSM’s choice of counsel and the terms of engagement of such counsel, which approval shall not be unreasonably withheld.  With respect to its approval, You may consider the following factors: whether NSM is cooperating in the selection of counsel with You; the experience of such counsel in similar matters; the financial arrangements with such counsel; and, to the extent You have obtained insurance applicable to such Proceeding, whether such insurance company has consented to NSM’s choice of counsel and the terms of engagement of such counsel.
  1. Settlements.  You shall not be liable to indemnify NSM for any amounts paid in settlement of any Proceeding effected without Your prior written consent.  You shall not settle any action or claim in any manner which would impose any non-indemnified penalty, limitation, expense or liability on NSM without NSM’s prior written consent.  Neither You nor NSM will unreasonably withhold consent to any proposed settlement.
  1. Right to Counsel.  With respect to any Proceeding as to which You have not assumed the defense, You may engage Your own counsel, at Your expense, to assist in the defense of such Proceeding.  With respect to any Proceeding as to which You have assumed the defense, NSM may engage its own counsel at its own expense to assist in the defense of the Proceeding.
  1. Definitions.  A “Proceeding” means any action, claim, suit, inquiry, investigation, court or administrative or arbitration proceeding brought by a party other than  You against NSM, or appeal taken from any of the foregoing, by or before any court, governmental authority, arbitrator or arbitration panel, whether pending or threatened.  The term  “Damages” means any costs, expenses, fines, judgments, settlements, penalties or other monetary amounts incurred in connection with a Proceeding.

 

NO OTHER WARRANTIES.

NSM’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY NSM WITH RESPECT TO THE WEBSITE AND THE CONTENT, AND ANY OTHER PRODUCT, OR SERVICE PROVIDED BY NSM.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, THE WEBSITE, THE CONTENT, AND ANY OTHER ITEMS OR SERVICES ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS.  NSM EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY YOU OR ANY USER AS A RESULT OF PROVISION OR USE OF THE WEBSITE AND/OR THE CONTENT; AND ANY WARRANTY OF UNINTERRUPTED OR ERROR-FREE OPERATION OF OR ACCESS TO THE WEBSITE AND CONTENT.  NSM RESERVES THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE WEBSITE, INCLUDING ANY CONTENT, AT ANY TIME, WITH OR WITHOUT NOTICE.  NO ORAL OR WRITTEN INFORMATION BY NSM OR ANY OTHER ENTITY OR PERSON SHALL CREATE ANY ADDITIONAL REPRESENTATION OR WARRANTY BY NSM.  NSM DOES NOT REPRESENT, WARRANT, OR GUARANTY TO YOU OR ANY USER ANY PARTICULAR RESULTS TO BE ACHIEVED AS A RESULT OF YOUR USE OF THE WEBSITE, THE CONTENT, OR ANY INFORMATION OR SERVICES INCLUDED IN THE CONTENT.  YOU UNDERSTAND AND ACKNOWLEDGE THAT NSM HAS NO RESPONSIBILITY OR LIABILITY FOR ANY ACTION YOU TAKE OR FAIL TO TAKE BASED ON YOUR USE OF THE WEBSITE AND/OR THE CONTENT.  NSM IS NOT LIABLE FOR ANY DAMAGES THAT YOU OR ANOTHER USER MAY SUFFER ARISING OUT OF USE OR INABILITY TO USE THE WEBSITE AND/OR THE CONTENT.  NSM IS NOT LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF ANY OF YOUR CUSTOMER-GENERATED CONTENT.

WEBSITE DISCLAIMER.

NSM UNDERTAKES NO RESPONSIBILITY FOR, AND DISCLAIMS ALL LIABILITY ARISING FROM, ANY INABILITY OF YOU OR OTHER USERS TO ACCESS THE WEBSITE.  NSM PROVIDES ACCESS TO THE WEBSITE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTY THAT THE WEBSITE WILL BE AVAILABLE OR FULLY OPERATIVE AT ANY TIME OR ON AN UNINTERRUPTED OR ERROR-FREE BASIS.  THE WEBSITE MAY CONTAIN ERRORS, GLITCHES, BUGS, OR OTHER DEFECTS, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF YOUR DISSATISFACTION WITH THE WEBSITE IS FOR YOU TO NOTIFY NSM ABOUT YOUR DISSATISFACTION, IN WHICH CASE NSM WILL REVIEW THE COMPLAINT WITH NSM’S SUBJECT MATTER EXPERTS, AND/OR YOU MAY STOP USING THE WEBSITE.

CONTENT DISCLAIMER.

ALTHOUGH NSM ATTEMPTS TO PROVIDE HIGH QUALITY CONTENT, NSM IS NOT RESPONSIBLE FOR ANY PERCEIVED FALSE, MISLEADING, INCOMPLETE, INACCURATE, OR OTHERWISE DEFECTIVE CONTENT.  CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND NSM IS NOT RESPONSIBLE FOR ANY RELIANCE UPON CONTENT BY YOU, BY ANY PERSONS SUBJECT TO YOUR EMPLOYMENT, CONTROL, AND/OR SUPERVISION WHO ACCESS THE WEBSITE AND THE CONTENT BY YOUR DIRECTION OR BY EQUIPMENT YOU PROVIDE.  THE CONTENT MAY CONTAIN SUBMISSIONS BY THIRD PARTIES THAT MAY BE PERCEIVED AS FALSE OR MISLEADING OR INACCURATE, OR MAY BE PERCEIVED TO HAVE OTHER DEFECTS, AND NSM IS NOT RESPONSIBLE FOR SUCH CUSTOMER-GENERATED CONTENT OR FOR ANY INACCURACIES OR DEFECTS IT CONTAINS.  YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN THE EVENT OF DISSATISFACTION WITH THE CONTENT IS FOR YOU TO NOTIFY NSM ABOUT YOUR PERCEPTIONS OF THE CONTENT, IN WHICH CASE NSM WILL REVIEW THE COMPLAINT WITH ITS SUBJECT MATTER EXPERTS, AND/OR YOU MAY STOP USING THE CONTENT AND/OR THE WEBSITE.

LIMITATION OF LIABILITY FOR NSM.

IN NO EVENT WILL NSM’S LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE CONTENT, THE WEBSITE, OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CLAIM OR FORM OF ACTION, INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF NSM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.  YOU UNDERSTAND AND ACKNOWLEDGE THAT NSM’S MAXIMUM AGGREGATE LIABILITY TO YOU UNDER OR RELATING TO THIS AGREEMENT UNDER THEORIES OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED AN AMOUNT, IN AGGREGATE, EQUAL TO THE FEES PAID BY YOU TO NSM IN THE TWELVE MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE.  YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR RELATIONS WITH OTHER CUSTOMERS, AND THAT NSM SHALL NOT BE LIABLE TO YOU OR ANY OTHER CUSTOMERS, UNDER ANY CIRCUMSTANCES, FOR ANY DISPUTE THAT ARISES BETWEEN YOU AND ANOTHER CUSTOMER OR USER OF THE WEBSITE AND/OR THE CONTENT.

GENERAL PROVISIONS.

Governing Law and Dispute Resolution.

This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Minnesota.  Disputes arising under this Agreement shall proceed through three levels of resolution, if necessary: negotiations between You and NSM, mediation, and court proceedings.  Any dispute which arises under this Agreement and cannot be resolved by good-faith negotiations between the parties may be submitted by either party for a required one-day mediation procedure in Minneapolis, Minnesota before a neutral mediator chosen by the American Arbitration Association (“AAA”) and applying AAA procedural rules.  If either party is unsatisfied with the resolution provided by the mediator, either party may file a claim in the appropriate state or federal court sitting in Minneapolis, Minnesota, and You hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in Minnesota for resolving any disputes arising under this Agreement which cannot be resolved either by negotiations or by mediation between You and NSM.

(1)       NSM’s Right to Injunctive Relief.

The dispute resolution provisions of this Agreement will not apply to any legal action taken by NSM to seek a temporary or permanent injunction or other equitable relief in connection with any loss, cost, infringement, or damage (or any potential loss, cost, infringement or damage) relating to the Website, any Content, Your Customer-Generated Content and/or NSM’s Intellectual Property Rights, NSM’s operations, and/or NSM’s products or services.

(2)       Your Waiver of Injunctive or Equitable Relief.

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT ORDER OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF THE WEBSITE, THE CONTENT, AND/OR  ANY OTHER WEBSITE, CONTENT, CUSTOMER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY NSM (INCLUDING YOUR LICENSED CUSTOMER-GENERATED CONTENT) OR BY A LICENSOR OR LICENSEE OF NSM.

Severability and Interpretation.

If any provision of this Agreement, is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this Agreement, which will remain in full force and effect. To the extent permitted by applicable law, You agree to waive, and You hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”

Electronic Communications.

Whenever You communicate with NSM, You consent to receive communications from NSM electronically.  Please note that, except as set forth in the provisions of this Agreement regarding the DMCA, NSM is not obligated to respond to inquiries that it receives.  You agree that all agreements, notices, disclosures, and other communications that NSM provides to You electronically satisfy any legal requirement that such communications be in writing.

Law Enforcement and Termination of Accounts or of the Website.

NSM reserves the right, without any limitation, to investigate any suspected breaches of its Website security and/or Content security, to investigate any suspected breaches of this Agreement, to investigate any information obtained by NSM in connection with reviewing law enforcement databases or complying with criminal laws, to involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, to prosecute violators of this Agreement, and to discontinue the Website, in whole or in part, at any time, without notice, for any reason and without any obligation to You or to any third party. Any suspension or termination will not affect Your obligations to NSM under this Agreement.  The provisions of this Agreement and any Additional Terms, which by their nature should survive Your suspension or termination will survive, including the rights and licenses You grant to NSM in this Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

Assignment.

NSM may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by You, and You may not delegate Your duties under these Terms, without the prior written consent of an officer of NSM.

No Waiver.

Except as expressly set forth in this Agreement, no failure or delay by You or NSM in exercising any rights or remedies under this Agreement will operate as a waiver of that or any other right or remedy.

No Partnership or Joint Venture.

Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between You and NSM.

Complete Agreement.

This Agreement contains Your entire understanding with NSM with respect to the subject matter and supersedes any and all prior oral or written proposals or understanding.

Updated: February 25, 2015