Section 11 of these Terms of Use is an arbitration clause that requires most disputes to be resolved on an individual, non-class action basis through binding and final arbitration instead of in court. See Section 11 for more information regarding this arbitration clause, and how to opt out.
These End User Terms of Use (“Terms of Use”) are a legally binding agreement between you and Nayya that govern the right for individual end users (each, an “End User,” “you” or “your”) to use the proprietary platform, website, applications and other offerings from Nayya (together, the “Platform”) and the online services enabled via our Platform (the “Services”).
THESE TERMS OF USE AND NAYYA’S PRIVACY POLICY (WHICH IS AVAILABLE AT WWW.NAYYA.COM/PRIVACY-POLICY AND IS INCORPORATED HEREIN BY REFERENCE) APPLY TO ALL END USERS ACCESSING OR USING PLATFORM IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE OR NAYYA’S PRIVACY POLICY, YOU MAY NOT ACCESS OR USE THE PLATFORM OR SERVICES.
By clicking on the “I accept” (or similar) button, completing the registration process, and/or using the Services, you represent that (1) you have read, understand, and agree to be bound by the Terms of Use and Nayya’s Privacy Policy, (2) you are of legal age to form a binding contract with Nayya, and (3) you have the authority to enter into the Terms of Use and Nayya’s Privacy Policy.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) which will be presented for acceptance when you sign up to use the supplemental Service or as otherwise indicated. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”
1. OUR SERVICES.
1.1. Account Information. Depending on the Services you have access to through your employer, the Platform and the related Services are designed to allow End Users to compare, select, enroll in, utilize, learn about, and otherwise enhance their employee benefits. The Services may include a summary of your employee benefits made available to you by your employer. The Services require Nayya to directly or indirectly access, view and use healthcare, enrollment and financial information related to the User, including information provided by you, your employer, your or your employer’s insurance carrier (including enrollment and census information and plan and benefit rules and features) or another third party (including third-party services that you authorize us to access on your behalf) (“Account Information”). If the Account Information provided to Nayya is incomplete, changes or becomes out of date, the Services, including any recommendations, may be impacted. Nayya is not responsible for the accuracy or completeness of the Account Information. You, your employer and your insurance carrier are responsible for ensuring Nayya is provided with accurate, complete and up to date Account Information.
1.2. Recommendations and Summaries. Nayya provides benefits related recommendations based on Account Information at a point in time. Nayya may provide summaries of your employee benefits based on Account Information provided by your employer and/or your insurance carrier. No representations or warranties are made regarding any recommendations made by, or summaries provided by, Nayya. Any reliance you place on such information, recommendations or summaries is strictly at your own risk and Nayya disclaims all liability with respect to such reliance by you.
1.3. No Advice. You are responsible for making your own decisions about your benefits and Nayya’s recommendations should not be relied upon as legal, tax, investment or financial advice. Before making a decision with respect to your benefits, you should review the applicable benefit plan documents and consider your personal circumstances carefully. If you have any questions or concerns regarding your benefits, you should consult your benefit plan documentation or contact your employer or benefits administrator for more information.
2. USE OF THE SERVICES AND NAYYA PROPERTIES.
2.1. Limited License. The Platform, the Services and the information, content, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof) available on or through the Platform or Services (collectively, the “Nayya Properties”) are owned by Nayya, its licensors or other providers of such material and are protected by intellectual property laws throughout the world. Subject to the Terms, Nayya grants you a non-exclusive and non transferable license to use the Platform and Services for your personal and non-commercial use. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Platform or made available through the Services Website, except as expressly permitted by the Terms.
2.2. Updates. You acknowledge and agree that Nayya may change and update Nayya Properties and any corresponding Terms accordingly. You may need to update third-party software from time to time to use Nayya Properties.
2.3. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Nayya Properties (including images, text, page layout or form) of Nayya; (b) you shall not use any metatags or other “hidden text” using Nayya’s name or trademarks; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform; (d) you shall not access Nayya Properties in order to build a similar or competitive website, platform or service; and (e) except as expressly stated herein, no part of Nayya Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update or other addition to Nayya Properties shall be subject to the Terms. Nayya, its suppliers and service providers reserve all rights not granted in the Terms.
2.4. Fee. Nayya is paid for by your employer, your professional employer organization (PEO) and/or an insurance carrier. The manner in which Nayya is paid, including the amount of any payment and the method of calculation of such payment, does not impact any benefit recommendation or summary provided by Nayya. From time-to-time Nayya may receive a fee from insurance companies. The amount of the fee may vary depending on several factors, including the type of insurance product sold and the specific insurer. The fee may be calculated as a percentage of the premium paid to the insurer for your policy.
2.5. Use in the United States. Nayya is based in the State of New York in the United States. Nayya provides the Nayya Properties for use only by persons located in the United States. Access and use of the Nayya Properties may not be legal by certain persons or in certain countries. If you access the Nayya Properties from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
3. REGISTRATION.
When registering an account for the Services (“Account”), if necessary, you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Nayya Properties under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Nayya immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Nayya Properties. You further agree that you will not maintain more than one Account for the same Service at any given time. Nayya reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account (other than Your Content, as defined below) are owned by and inure to the benefit of Nayya.
4. RESPONSIBILITY FOR CONTENT.
4.1. Types of Content. As between Nayya and End User, all information and content, including Account Information and Nayya Properties, (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Nayya, are entirely responsible for all Content, including Account Information, that you upload, e-mail, transmit or otherwise make available to Nayya (“Your Content”).
4.2. No Obligation to Pre-Screen Content. You acknowledge that Nayya has no obligation to pre screen Content, although Nayya reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By agreeing to these Terms, you hereby provide your irrevocable consent to such monitoring. Without limiting the foregoing, Nayya shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.3. Storage. Unless expressly agreed to by Nayya in writing elsewhere or as required by applicable law, Nayya has no obligation to store any of Your Content. Nayya has no responsibility for the timeliness, deletion, misdelivery or failure to store any of Your Content, in-Service communications or personalization settings (other than as set forth in the Privacy Policy).
5. OWNERSHIP.
5.1. Nayya Properties. Except with respect to Your Content, you agree that as between End User and Nayya, Nayya and its licensors own all rights, title and interest in Nayya Properties.
5.2. License to Your Content. Subject to any applicable account settings that you select, you grant Nayya a fully paid, royalty-free, worldwide, non-exclusive and sub-licensable right and license to use, reproduce, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing our Services to you. You warrant that you are the holder of any and all worldwide intellectual property right in Your Content. You agree that you, not Nayya, are responsible for all of Your Content that you make available on or in Nayya Properties and subject to the foregoing license, you retain all right, title and interest in and to Your Content.
5.3. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nayya (“Feedback”) is at your own risk and that Nayya has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nayya a fully paid, royalty-free, perpetual, irrevocable, worldwide, non exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Nayya Properties.
6. USER CONDUCT.
As a condition of your use of the Nayya Properties, you agree not to use Nayya Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any Content on or through Nayya Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iv) involves commercial activities and/or sales; (v) impersonates any person or entity, including any employee or representative of Nayya; (vi) interferes with or attempt to interfere with the proper functioning of Nayya Properties or uses Nayya Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Nayya Properties, including but not limited to violating or attempting to violate any security features of Nayya Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Nayya Properties, introducing viruses, worms, or similar harmful code into Nayya Properties, or interfering or attempting to interfere with use of Nayya Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Nayya Properties.
7. CONTENT AND SERVICES PROVIDED BY THIRD PARTIES.
Nayya Properties may contain Content provided by third parties (including benefit providers). Nayya is not responsible for and does not control Content received from third parties and labeled as such (the “Third Party Content”). Nayya has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Third Party Content. Further, Nayya Properties may contain links to third-party websites (“Third-Party Websites”) and third-party platforms (“Third-Party Platforms”). When you click on a link to a Third-Party Website or Third-Party Platform, it may or may not warn you that you have left Nayya Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Platforms are not under the control of Nayya. Nayya is not responsible for any Third-Party Websites or Third-Party Platforms. Nayya provides these Third-Party Websites and Third-Party Platforms only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Platforms, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third- Party Platforms at your own risk. When you leave our Platform, the Terms and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Platforms, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. DISCLAIMERS.
8.1. No Medical Records or PHI Repository. You understand that the Services are not— and are not intended to be used as— a medical record or personal health information (“PHI”) repository. Nayya is not a healthcare provider and has no responsibility to comply with medical records and/or PHI retention requirements applicable to medical providers under applicable law.
8.2. Not Intended as Medical Advice. Nayya is not a medical provider and does not provide medical advice of any kind or make clinical, medical, or other professional decisions or recommendations, including any diagnosis or treatment. No information from Nayya should be relied on as professional medical advice. Nothing provided by Nayya on the Platform shall be construed as the practice of medicine or providing medical services.
8.3. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF NAYYA PROPERTIES IS AT YOUR SOLE RISK, AND NAYYA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NAYYA (FOR ITSELF AND ITS LICENSORS, LICENSEES, AND CLIENTS) EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT ARISING FROM USE OF THE PLATFORM.
8.4. NAYYA MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) NAYYA PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF NAYYA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF NAYYA PROPERTIES WILL BE ACCURATE OR RELIABLE.
8.5. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH NAYYA PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS NAYYA PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
8.6. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NAYYA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
8.7. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NAYYA OR THROUGH NAYYA PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8.8. FROM TIME TO TIME, NAYYA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT NAYYA’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9. LIMITATION OF LIABILITY.
9.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NAYYA OR ITS OFFICERS, EMPLOYEES, AGENTS, CLIENTS, LICENSEES, AND LICENSORS (EACH A “NAYYA PARTY” AND COLLECTIVELY “NAYYA PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, PRODUCTION, DATA, USE, GOODWILL, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT NAYYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM: (1) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY NAYYA PROPERTIES; (2) ANY CONTENT OR INFORMATION, INCLUDING RECOMMENDATIONS AND SUMMARIES, OBTAINED FROM OR RELATED TO THE NAYYA PROPERTIES, (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR ACCOUNT INFORMATION; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON NAYYA PROPERTIES; (5) INJURY TO PERSON OR PROPERTY (INCLUDING DEATH); OR (6) ANY OTHER MATTER RELATED TO NAYYA PROPERTIES. THIS LIMITATION OF LIABILITY APPLIES WHETHER A CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT NAYYA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN (IF ANY) IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2. Disclaimer of Third-Party Conduct. YOU ACKNOWLEDGE AND AGREE THAT NO NAYYA PARTY IS LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NAYYA LIABLE, FOR THE CONDUCT OR COMMUNICATIONS OF THIRD PARTIES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER END USERS OF NAYYA PROPERTIES.
9.3. Cap on Liability. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH OR CLAIM AGAINST A NAYYA PARTY RELATED TO THE TERMS OR THE NAYYA PROPERTIES SHALL BE CEASING USE OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN THE EVENT A COURT AWARDS DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES SHALL NOT EXCEED THE LESSER OF $5.00 OR THE AMOUNT PAID ON YOUR BEHALF TO NAYYA FOR THE NAYYA PROPERTIES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NAYYA AND YOU.
10. TERMINATION.
At its sole discretion, Nayya may modify or discontinue the Services, or may modify, suspend or terminate your access to the Platform or Services, for any reason, with or without notice to you and without liability. Upon termination of these Terms, all provisions which by their nature are intended to survive termination will survive, including without limitation, Sections 5 (Ownership), 8 (Disclaimers), 9 (Limitation of Liability), 10 (Termination), 11 (Dispute Resolution) and 12 (General Provisions).
11. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nayya and limits the manner in which you can seek relief from us.
11.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to these Terms, including your access or use of the Platform, to any Nayya Properties, or to any aspect of your relationship with Nayya, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Nayya may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
11.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to 215 Park Ave South, Floor 4, New York, NY 10003. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at [http://www.jamsadr.com/rules-comprehensive-arbitration/ (http://www.jamsadr.com/rules-comprehensive-arbitration/). JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
11.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Nayya. The arbitration proceeding 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 arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 us.
11.4. Waiver of Jury Trial. YOU AND NAYYA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nayya are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in New York, New York. All other claims shall be arbitrated.
11.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to team@nayya.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Nayya username (if any), the email address you used to set up your Nayya account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11.7. Severability. Except as provided in subsection 11.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
11.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nayya.
12. General Provisions.
12.1. Changes to the Terms of Use. Nayya may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Nayya Properties thereafter. Your continued use of the Nayya Properties following the posting of revised Terms of Use means that you accept and agree to the changes. Nayya may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Nayya Properties is permitted. You should check this page from time to time so you are aware of any changes, as they are binding on you.
12.2. Electronic Communications.The communications between you and Nayya use electronic means, whether you visit Nayya Properties or send Nayya e-mails, or whether Nayya posts notices on Nayya Properties or communicates with you via e-mail or SMS messaging, where applicable. For contractual purposes, you (1) consent to receive communications from Nayya in an electronic form consistent with our Privacy Policy; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nayya provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. You may always opt-out of receiving such electronic communications.
12.3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nayya’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Nayya may freely assign the Terms including its rights herein, in whole or in part, without your prior consent.
12.4. Force Majeure. Nayya shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.5. Exclusive Venue. To the extent the parties are permitted under the Terms (including the Arbitration Agreement) to initiate litigation in a court, both you and Nayya agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in New York County, New York.
12.6. Governing Law. The terms of use and any action related thereto will be governed and interpreted by and under the laws of the state of New York, consistent with the federal arbitration act, without giving effect to any choice or conflict of law provision or rule. The United Nations convention on contracts for the international sale of goods does not apply to these terms.
12.7. Notice. Where Nayya requires that you provide an e-mail address, you are responsible for providing Nayya with your most current e-mail address. In the event that the last e-mail address you provided to Nayya is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Nayya’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nayya at: legalnotices@nayya.com or at 215 Park Ave South, Floor 4, New York, NY 10003. Such notice shall be deemed given (a) when received by Nayya by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address, or (b) when delivery is acknowledged via e-mail.
12.8. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.9. Severability. If any portion of these Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.10. Entire Terms. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.