End User License Agreement

Last Updated: September 22nd, 2021

By using the software that is embedded (“Embedded Software”) on the NucleusCare hardware product (the “Product”) or downloading or using any NucleusCare application software (“Application Software”), you agree to the terms of this End User License Agreement (“EULA”) between you and NucleusCare (“NucleusCare” “Nucleus” or “we”). “Product Software” means the Embedded Software, as loaded on the Product, and the Application Software, which may be downloaded and used on your smartphone, tablet, or other device.

PLEASE READ THIS EULA CAREFULLY PRIOR TO USING THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE TO THIS EULA WITH RESPECT TO THE EMBEDDED SOFTWARE, YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING NUCLEUSCARE AT THE ADDRESS BELOW. IF YOU DO NOT AGREE TO THIS EULA WITH RESPECT TO ANY PARTICULAR APPLICATION SOFTWARE, YOU MAY NOT DOWNLOAD OR USE SUCH APPLICATION SOFTWARE, BUT MAY USE THE EMBEDDED SOFTWARE WITH THE PRODUCT PURSUANT TO THIS EULA. 

This EULA governs your access and use of the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF (OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS AND/OR USE OF THE PRODUCT SOFTWARE). YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.

AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT SOFTWARE.

ALSO AS DESCRIBED BELOW, SECTION 8 LIMITS LIABILITY AND REMEDIES, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES, AND SECTION 13 INCLUDES A CLASS ACTION WAIVER, WAIVER OF JURY TRIALS, AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

PLEASE BE AWARE THAT SECTION 13 OF THIS EULA, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND NUCLEUSCARE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST NUCLEUSCARE TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 13 OF THIS EULA: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST NUCLEUSCARE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 13 OF THIS EULA COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION.

You should print a copy of this EULA or save them to your computer for future reference. If you require an electronic copy of this EULA, please contact seness@nucleuscare.com.

 

LICENSE AND USE

Subject to the terms of this EULA, NucleusCare grants to you a limited and nonexclusive license (without the right to sublicense) to execute (a) one (1) copy of the Embedded Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes, and (b) the Application Software, in executable object code form only, on mobile devices and tablets you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes. Your personal use includes use with or by your family and guests at your home, provided that you supervise them and cause them to comply with this EULA as if they were you.
Use of the Product Software may result in the transmission and/or processing of certain data (which may include audio, video, and other data) by NucleusCare, its contractors, and your or NucleusCare’s network and telecommunication providers or other third parties. NucleusCare has designed the Product Software to include reasonable and appropriate security measures, but no Product Software or Product can be perfectly secure. NucleusCare will comply with its Privacy Policies on its website (www.nucleuscare.com) in connection with any data it receives or processes in connection with the Product Software. The transmission and/or processing of data may include data transfers to the United States of America or other countries and may not be appropriate or available for data originating in all countries. Those who access or use Product Software do so at their own volition, hereby consent to transmission and processing of data in the United States, and are responsible for obtaining any third party consents (e.g., from family or guest users) and compliance with local law.

Subject to the NucleusCare Privacy Policies, NucleusCare may monitor and analyze certain data and statistics relating to your location and use of the Product Software to fix or improve the Product or Product Software and/or develop and offer new software, services or products. NucleusCare may also aggregate and anonymize data relating to the use of the Product Software and may use and exploit such aggregated and anonymized data (“De-Identified Data”). You hereby expressly consent to such monitoring, analysis, aggregation and anonymization.

Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Product Software. You agree that you (and not NucleusCare) are responsible for ensuring that you comply with any applicable laws when you use the Products and Product Software, including but not limited to (i) any laws relating to the recording or sharing of video or audio content that includes third parties, or (ii) any laws requiring notice to or consent of third parties (e.g., guests in your house) with respect to your use of the Product or Product Software.

 

 

Restrictions

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party (other than in connection with the authorized and permitted use of the Product at your home), (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Embedded Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact NucleusCare and provide NucleusCare an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of NucleusCare for each such release.


You also warrant, represent,and agree that you will not (and will not permit any family member, guest or other third party to) contribute any content or otherwise use the Product or Product Software in a manner that (a) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (b) violates any law, statute, ordinance or regulation; (c) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (d) impersonates any person or entity; (e) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (f) jeopardizes the security of the Product Software or any network or system; (g) attempts, in any manner, to obtain the password, account, or other security information from any other user; (h) violates the security of any computer network, or cracks any passwords or security encryption codes; or (i) runs Maillist, Listserv, or any form of auto-responder or “spam”, or any processes that otherwise interfere with the proper working of the Product Software (including by placing an unreasonable load).

 

 

Automatic Software Updates

NucleusCare may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, you must stop using the Product. If you do not cease use, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates NucleusCare provides. Your continued use of the Product or Product Software is your agreement to this EULA.

 

 

Ownership

The Product, Product Software, and De-Identified Data and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of NucleusCare and its licensors. Purchase of a license grants you access to, but not ownership of, the Product and Product Software for the duration of your license agreement. NucleusCare and its licensors reserve all rights in and to the Product and Product Software not expressly granted to you in this EULA. The Product and Product Software (and all copies thereof) are licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to NucleusCare with respect to the Product or Product Software shall be NucleusCare’s property. NucleusCare may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that NucleusCare does not waive any rights to use similar or related ideas previously known to NucleusCare, developed by its employees, or obtained from any sources.

 

 

Open Source Software; App Stores

Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, NucleusCare makes such Open Source Software, and NucleusCare’ modifications to that Open Source Software, available by written request to NucleusCare at the email or mailing address listed below. For a full list of our  Open Source Software, please contact us at seness@nucleuscare.com.

You acknowledge and agree that the availability of the Application Software is dependent on the third party from whom you received the Application Software, e.g., the Apple App Store, Google Play, etc. (“App Store”). You acknowledge that this EULA is between you and NucleusCare and not with the App Store. NucleusCare, not the App Store, is solely responsible for the Product Software, the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application Software, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Application Software. You agree to comply with, and your license to use the Application Software is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Application Software. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the EULA and will have the right to enforce terms and conditions thereunder. You and NucleusCare acknowledge that, in the event of any third-party claim that the Application Software or your possession and use of thereof infringes that third party’s intellectual property rights, as between NucleusCare and App Store, NucleusCare, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the EULA.

 

 

Term and Termination

This EULA and the license granted hereunder are effective on the date you purchase a license to access the Product and Product software, and shall continue for the duration of your license agreement, unless this EULA is terminated under this section. NucleusCare may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA, in its entirety or with respect to the Embedded Software or Application Software, effective immediately upon written notice to NucleusCare. Upon termination, the applicable licenses granted hereunder will terminate and you must (i) delete and stop all use of the applicable Product Software and (ii) return the Product and any associated materials to NucleusCare. The terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.

 

 

Warranty Disclaimer

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUCLEUSCARE PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NUCLEUSCARE DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. NUCLEUSCARE MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.


YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND NUCLEUSCARE DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, SYSTEMS, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS, PERSONS, AND/OR PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT SOFTWARE OR PRODUCT. YOU ACKNOWLEDGE THAT YOU PROVIDE PERSONAL INFORMATION AT YOUR OWN RISK.


TO THE EXTENT PERMISSIBLE BY LAW, NUCLEUSCARE ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE OR LOSS CAUSED BY YOUR ACCESSING OR USE OF THE PRODUCT OR PRODUCT SOFTWARE OUTSIDE THE UNITED STATES. YOU WILL BE BOUND BY THIS EULA WHEREVER YOU ACCESS OR USE THE PRODUCT OR PRODUCT SOFTWARE.

 

 

Limitation of Liability and Indemnity

Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) NucleusCare BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF NUCLEUSCARE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) NUCLEUSCARE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO NUCLEUSCARE OR NUCLEUSCARE’S AUTHORIZED DISTRIBUTOR AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. NUCLEUSCARE DISCLAIMS ALL LIABILITY OF ANY KIND OF NUCLEUSCARE’S LICENSORS AND SUPPLIERS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN NUCLEUSCARE AND YOU. Please note that some states do not allow the exclusion or limitation of liability of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

You agree to defend, indemnify and hold NucleusCare and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) use of (or inability to use) the Product or Product Software or the use of (or inability to use) the Product or Product Software by you, your family members’ and other guests’ or residents’ in the premise in which you locate the Product, (ii) any violation of this EULA by you, your family members, your guests or other individuals whom you provide access to the Product, (iii) any data or feedback provided to NucleusCare hereunder; or (iv) violation of any law or the rights of any third party by you, your family members, guests, or other individuals whom you provide access to the Product. NucleusCare reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify NucleusCare and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without NucleusCare’s prior written consent. NucleusCare will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. This provision does not require you to indemnify NucleusCare for any unconscionable commercial practice or for NucleusCare’s fraud, deception, false promises, misrepresentation, or concealment, suppression or omission of any material fact in connection with the Product Software.

 

 

Limitations of Product Software

You acknowledge that the Product and Product Software are not certified or intended for safety, health care, child-care, or other critical uses. YOU UNDERSTAND THAT THE PRODUCTS AND PRODUCT SOFTWARE ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — NUCLEUSCARE DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. All life-threatening and emergency events should be directed to the appropriate response services.
The Product Software provides you information (“Product Information”) regarding the Product(s) in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct access of the information in the home.

 

 

Confidentiality

“Confidential Information” shall mean the Product Software and all other information disclosed to you that NucleusCare characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive or access shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of NucleusCare. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify NucleusCare in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with NucleusCare in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify NucleusCare prior to such disclosure to allow NucleusCare an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with NucleusCare in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

 

 

For U.S. Government End Users

The Product and Product Software are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product and Product Software are provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

 

 

Export Compliance

The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold NucleusCare harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.

 

 

Governing Law; Arbitration; Class Action Waiver

Please read this section carefully (the “Arbitration Agreement”). It is part of your EULA with NucleusCare and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.


Applicability of Arbitration Agreement

All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the EULA or the use of any Product, Product Software, or related service provided by NucleusCare that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in the English language. This Arbitration Agreement applies to you and NucleusCare, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of products, software or services related to this EULA.

 

 

Notice Requirement and Informal Dispute Resolution

Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to NucleusCare should be sent to: 

 

NucleusCare
265 Sunrise Hwy Suite #194

Rockville Centre, NY 11570-4912

 

After the Notice is received, you and NucleusCare may attempt to resolve the claim or dispute informally. If you and NucleusCare do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

 


Arbitration Rules

Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the EULA. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that NucleusCare made to you prior to the initiation of arbitration, NucleusCare will pay you the greater of the award or $250 USD. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

 

Additional Rules for Non-Appearance Based Arbitration

If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

 

Time Limits

If you or NucleusCare pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the ADR Provider rules for the pertinent claim.

 

Authority of Arbitrator

If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and NucleusCare, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider rules, and the EULA. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and NucleusCare.

 

Waiver of Jury Trial

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and NucleusCare in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND NucleusCare WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

 

Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

 

 

 

Confidentiality

All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

Severability

If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement and EULA shall continue in full force and effect.

 

Right to Waive

Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement

 

Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with NucleusCare.

 

 

Small Claims Court

Notwithstanding the foregoing, either you or NucleusCare may bring an individual action in small claims court.

 

Emergency Equitable Relief

Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

 

 

Claims Not Subject to Arbitration

Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

 

 

Courts

In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York, for such purpose.


Choice of Language

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

 

 

Assignment

Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.

 

 

Notices Any notice to you may be provided by email to the address that you registered with NucleusCare.
Please see here for NucleusCare’s address:

NucleusCare 265 Sunrise Hwy Suite #194

Rockville Centre, NY 11570-4912

 

If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

 

Severability If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

 

 

Waiver

All waivers by NucleusCare will be effective only if in writing. Any waiver or failure by NucleusCare to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

 

General

The Product and Product Software are deemed irrevocably accepted upon your use of the Product Software. NucleusCare will have no responsibility to provide maintenance or support services with respect to the Product or Product Software. You acknowledge that the Product Software contains valuable trade secrets and proprietary information of NucleusCare, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to NucleusCare for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties. Questions or Additional Information. If you have questions regarding this EULA, please contact seness@nucleuscare.com.

 

 

Changes NOTE THAT this EULA is subject to change by NucleusCare in its sole discretion at any time. When changes are made, NucleusCare will make a new copy of the EULA available at its website and within the applicable Software Product or Update(s) thereto and any new or revised terms or conditions will be made available from within, or through, the affected Product and/or Product Software. We will also update the “Last Updated” date at the top of the EULA. If we make any material changes, and you have registered with us to create an account we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the EULA will be effective immediately for new users and will be effective thirty (30) days after posting notice of such changes for existing users, provided that any material changes shall be effective for users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes or thirty (30) days after dispatch of an e-mail notice of such changes to registered users. NucleusCare may require you to provide consent to the updated EULA in a specified manner before further use of the Update or Product Software is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the applicable Update, Product, or Product Software. Otherwise, your continued use constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE THEN-CURRENT EULA.