Optimist Labs, Inc. aka “Near” Terms of Service

Last updated December 30, 2015

Welcome to Near!

Thank you for your interest in the Near application for your mobile device (the “App”) provided to you by Optimist Labs, Inc. (“Near” “us” or “we”), and our Web site at http://wearenear.co (the “Site”), as well as all related web sites, networks, downloadable software, and other services provided by us and on which a link to this Terms of Use is displayed (collectively, together with the App and Site, our “Service”). This Terms of Use (these “Terms”), including the Privacy Policy incorporated herein by reference and any other applicable policies and guidelines, as may be updated from time to time, govern your use of the Service. These Terms are a legally binding contract between you and Near regarding your use of the service.

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.

As provided in greater detail in these Terms (and without limiting the express language of these Terms below), you agree and acknowledge that these Terms include, the following material terms:

1. Eligibility. You must be at least twelve (12 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least twelve (12) years of age; (b) you have not previously been suspended or removed from the Service; (c) you are not a convicted sex offender and (d) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

2. Accounts and Registration. To access the Service, you need to create a Near account by logging in with phone number authentication. You may modify your profile on Near, we may collect information such as your name, email, phone number, password, a profile video, date of birth, gender, and profile information. If you sign up for our Services through Facebook, we may also collect additional information from your Facebook profile and account based on your settings within Facebook.

For additional Services beyond the basic Near account, we may ask you for additional information. We want you, though, to be in control of your information, so we let you update or correct most of the basic Near account information by editing your account settings within Near. And while we hope you’ll remain a lifelong fan of Near, if for some reason you ever want to delete your account, just email us hi@wearenear.co; but keep in mind that we may retain certain information in backup for a limited period of time or as required by law. For more information about how we store and delete the content you send or receive through Near, please read the “Content Deletion” section in our Privacy Policy.

3. Scope of License. The App is licensed, not sold, to you for use only under the terms of this license. Near reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, Near hereby grants you a personal, limited, revocable, non-transferable license to use the App on compatible devices that you own or control, solely for your own non-commercial use. You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by Near that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

4. User Content

4.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including video, chats, reviews, photos, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.

4.2 Limited License Grant to Near. By posting or publishing User Content, you grant Near a perpetual worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Near’s use of your User Content may be without any compensation paid to you.

4.3 Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

4.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:

a. You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Near and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 4 and in the manner contemplated by Near, the Service, and these Terms; and

b. Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Near to violate any law or regulation.

4.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Near may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Near with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Near does not permit copyright-infringing activities on the Service.

5. Digital Millennium Copyright Act

5.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Optimist Labs, Inc.

E-mail: copyright@wearenear.co

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

b. A description of the copyright-protected work or other intellectual property right that you claim has been infringed;

c. A description of the material that you claim is infringing and where it is located on the Service;

d. Your address, telephone number, and email address;

e. A statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and

f. A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

5.2 Repeat Infringers. In appropriate circumstances, Near will terminate the accounts of users we determine to be “repeat infringers.” In general, we consider a repeat infringer to be a user who has been notified of infringing activity or has had User Content removed from the Service on more than three occasions.

6. Third Party Materials.

6.1 6.1 Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties (“Third Party Materials”). You understand that by using the Service, you may encounter Third Party Materials and other content, such as third party advertisements and promotional content (collectively, “Content”), that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and that Near shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable, or that is inaccurate, incomplete, untimely, invalid, illegal, indecency, of poor quality or otherwise.

6.2 In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Near makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.

7. Community and Conversations

7.1 General. Near may provide facilities through which users may communicate with one another, such as via forums or commenting (collectively, the “Community”). Your participation in the Community is a privilege, not a right, and Near may terminate or suspend Community privileges of any user at any time and for any reason, without any liability to such user. While we invite you to express your thoughts and opinions in the Community, we don’t want obnoxious comments in the Community, and you must respect your fellow users. Harmful, obscene, or offensive communications are not welcome in the Community and Near reserves the right to monitor, edit, pre-screen, and remove any postings to the Community, although nothing herein requires Near to monitor, edit or remove any postings. If you find objectionable content in the Community, then please notify us by sending an email to hi@wearenear.co.

7.2 Community Submissions. You should exercise discretion, good sense, and sound judgment when participating in the Community. Think – and read twice – before you Submit anything to the Community. Once something is Submitted to the Community (e.g., a video or comment) it may live in perpetuity online, and comments Submitted today could be highly embarrassing or damaging to your credibility or reputation in the future. You are solely responsible for the content of any User Content you Submit to the Community. You must not Submit any material to the Community that you consider to be confidential or proprietary. You agree that any Submissions you make in the Community are deemed public communications and that no confidentiality shall be afforded such Submissions. You hereby grant us an assignable, sublicensable, irrevocable license to Use your Submissions to make them available on and through the Community; provided, however, that Near shall never be obligated to remove any of your User Content from the Community upon the termination of any other grant of rights in these Terms.

7.3 Content. The Service may allow you to send content (“Content”) to other users of the Service. Sending videos is a privilege, not a right, and Near may terminate such privileges of any user at any time and for any reason, without any liability to such user. Harmful, obscene, or offensive communications are not welcome in any content. If a User sends you an objectionable content, then please notify us by sending an email to hi@wearenear.co. You should exercise discretion, good sense, and sound judgment when sending content. You are solely responsible for the content you send. You agree to take reasonable precautions in all interactions with other users, particularly if you decide to communicate with another user online or meet them offline in person. You are solely responsible for any interactions you have with another user offline or in person. You agree that Near may monitor content for compliance with these Terms, and therefore, content should not be considered confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your content in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as Near may deem appropriate in its sole discretion.

7.4 No Endorsement. Near does not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any comments Submitted to the Community or any Content sent to you using the Service. The opinions expressed in any Community or Content are to be attributed solely to the person or entity that Submitted or sent such Content. Any reliance you place on material or information set forth in the Community Submissions or any Content will be at your own risk.

7.5 Community Guidelines. Please be mindful of the User Content you Submit to the Community or send in a Video. Near reserves the right to (a) remove User Content and escalate to law enforcement if it perceives a genuine risk of physical harm, or a direct threat to public safety; (b) remove any promotion or encouragement of self-mutilation, eating disorders or drug abuse; (c) take action on any report of abusive behavior directed at individuals, including any cyber bullying; (d) remove any User Content attacking others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, medical condition, or any other protected category of any State of the United States; (e) remove any graphic content shared for sadistic pleasure; (f) impose limitations on the display of nudity, and (g) remove personal information of others shared without their consent. If you see something on the Service that you believe violates these Terms, please report it to us by emailing hi@wearenear.co. Please remember that reporting User Content does not guarantee Near will remove it from the Service. The Service is comprised of diverse individuals and it is possible that something could be disagreeable or disturbing to you without meeting our criteria for removal. You may always choose to not view any User Content that offends you. Near may post additional Community guidelines on www.wearenear.co. Your use of the Service must comply with any such additional posted guidelines.

8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

8.1 Create a false identity or impersonate another person or entity in any way;

8.2 Use the Service for any illegal purpose or in violation of any local, state, national, or international law;

8.3 Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

8.4 Post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, sexually explicit or otherwise inappropriate;

8.5 Frame, embed, or pass off any User Content for which you are not the contributor obtained from the Service in such a manner as to present it as originating from a source other than the Service;

8.6 Interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

8.7 Interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect any personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;

8.8 Use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;

8.9 Perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

8.10 Sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 14) or any right or ability to view, access, or use any Material;

8.11 Display any unauthorized commercial advertisement on your profile, or accept payment or anything of value from a third person in exchange for you performing any commercial activity through the unauthorized or impermissible use of the Service on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private chats with a commercial purpose; or

8.12 Attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.

9. Third-Party Services and Linked Content. Near may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Near with an account on the third party service, such as Instagram, Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

10. Open Source Software. The Service may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses. Please review the information at [insert link] for the applicable notices and license terms.

11. Location Based Services. The Service enables Near to tailor your experience based on your location (“Location-based Services”), such as to provide you with event updates, community lists and suggestions, community members in your area, and other announcements available to you based on your location. If you choose to disable Location-based Services on your device or to the App, you may not be able to utilize the Service.

12. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Near may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice for any reason. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at hi@wearenear.co.

13. Privacy Policy; Additional Terms

13.1 Privacy Policy. Please read the Near Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Near Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

13.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms“), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 14 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

14. Modification of these Terms. We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms will identify the date of last update. Your use of any Service following any such change constitutes your agreement to be bound by the modified Terms of Use. In the case of material changes to the Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.

15. Ownership; Proprietary Rights. The Service is owned and operated by Optimist Labs, Inc. dba ‘Near’. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Near are protected by intellectual property and other laws. All Materials contained in the Service are the property of Near or our third-party licensors. Except as expressly authorized by Near, you may not make use of the Materials. Near reserves all rights to the Materials not granted expressly in these Terms.

16. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Near and its officers, directors, employees, consultants, affiliates, investors, business partners, subsidiaries and agents (together, the “Near Entities“) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

17. Disclaimers; No Warranties THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE Near ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Near ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Near ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

18. Limitation of Liability IN NO EVENT WILL THE Optimist Labs, Inc. dba “Near” ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Near ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE Near ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

19. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Near agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

20. General. These Terms, together with the Near Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Near regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time to any entity without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 1, and 5 through 25.

21. Dispute Resolution and Arbitration

21.1 Near is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user. All disputes between users are subject to the provisions of Section 8. Disputes between a user and Near are subject to this Section 21.

21.2 Generally. In the interest of resolving disputes between you and Near in the most expedient and cost effective manner, you and Near agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Near ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

21.3 Exceptions. Despite the provisions of Section 21.2, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

21.4 Arbitrator. Any arbitration between you and Near will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Near.

21.5 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice“). Near’s email address for Notice is: hi@wearenear.co. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Near may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Near must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Near will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Near in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

21.6 Fees. If you commence arbitration in accordance with these Terms, Near will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Near for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

21.7 No Class Actions. YOU AND Near AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Near agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

21.8 Modifications. If Near makes any future change to this arbitration provision (other than a change to Near’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Near’s address for Notice, in which case your account with Near will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

21.9 Enforceability. If Section 21.7 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.

22. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

23. Contact Information. The Service is offered by Optimist Labs, Inc., you may contact us by emailing us at hi@wearenear.co. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.

24. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

25. Notice Regarding Apple. To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 25. You acknowledge that these Terms are between you and Near only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.