Extended Privacy policy and Terms of Use​

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I. Account

II. Payment

III. Rights

IV. Rules and abuse

V. Liability

VI. Other Important Stuff

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Please read these Standard Terms of Use ("Terms") carefully. By using the Service (defined below) or signing up for an account, you're agreeing to these Terms, which will result in a legal agreement between you and Trappin Holdings d/b/a Nyxion (collectively, "Nyxion," "we," or "us"). Nyxion is part of Trappin Holdings.

We'll start with the basics, including a few definitions that should help you understand these Terms. Nyxion offers an online marketing platform (the "App") that allows you to manage your contacts, to create, send, and manage certain marketing campaigns, including, without limitation, emails, advertisements, and mailings (each a "Campaign," and collectively, "Campaigns"), and to create and manage online stores, web pages and websites to reach your people and sell your things (each, a "Site," and collectively, "Sites") among other things. The App is part of the platform operated by the Trappin Holdings group of companies (the "Trappin Holdings Platform") and is offered through our websites, including https://www.Nyxion.ai,  and any other website or mobile application owned, operated or controlled by us (we'll collectively refer to these as the "Nyxion Site," and together with the App and insights, analytics, and other features we make available through our products and services, the "Service"). Nyxion has employees, officers, directors, independent contractors, and representatives ("our Team"). As a customer of the Service or a representative of an entity that's a customer of the Service, you're a "Member" according to this Agreement (or "you"). A "Contact" is any person that you, a Member, may contact through our Service. In other words, a Contact is anyone on a Member's distribution list about whom a Member has given us information or is anyone who has otherwise interacted with a Member via the Service. For example, if you are a Member, a subscriber to your email marketing campaigns or a shopper to your Website or Landing Page would be considered a Contact.

These Terms, including our Acceptable Use Policy, API Use Policy, Copyright and Trademark Policy, Data Processing Addendum, and Brand Guidelines (collectively, the "Agreement") define the terms and conditions under which you're allowed to use the Service in accordance with the Agreement, which in addition to our Global Privacy Statement and Cookie Statement, describe how we'll treat your account and the data we collect and process about you, your end users, and your contacts and customers while you're a Member. If you don't agree to these Terms, you must immediately discontinue your use of the Service.

Additional terms and restrictions apply to some features of the Service, including some which are offered as add-ons to your Nyxion account ("Add-ons"). Unless expressly stated otherwise, these Terms apply to the use of Add-ons. Members agree to the applicable Additional Terms at the time they choose to add the corresponding Add-on or use the corresponding feature. Also note that a Member's account may have access to unique features of the Service based on their historic usage or status.

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I. Account

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1. Eligibility

In order to use the Service, you must:

1. be at least eighteen (16) years old

2. complete the account registration process;

3. agree to these Terms and the other terms and conditions linked in these Terms that form part of the Agreement;

4. provide true, complete, and up-to-date contact and billing information;

By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won't use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

Nyxion may refuse service, close accounts of any Members, and change eligibility requirements at any time.

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2. Term

When you sign up for an account and agree to these Terms, the Agreement between you and Nyxion is formed, and the term of the Agreement (the "Term") will begin. The Term will continue for as long as you have a Nyxion account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

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3. Closing Your Account

You or Nyxion may terminate the Agreement at any time and for any reason. You may do so by terminating your Nyxion account or we may do so by giving notice to you that we are terminating the Agreement. We may suspend the Service to you at any time, with or without cause. We won't refund or reimburse you in any situation. If your account is inactive for 24 or more months, we may terminate your account and you won't be entitled to a refund for any prepaid amounts or reimbursement. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.

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4. Changes

We may change any of the Terms by posting revised Terms on our Nyxion Site. Unless you terminate your account, the new Terms will be effective immediately upon posting on the effective date indicated in the new Terms, as applicable, and apply to any continued or new use of the Service. We may change the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Service, Add-ons, or any features of the Service at any time.

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5. Account and Password

You're responsible for keeping your account name and password confidential. You're also responsible for any account that you have access to and any activity occurring in such account (other than activity that Nyxion is directly responsible for that isn't performed in accordance with your instructions), whether or not you authorized that activity. You'll immediately notify us of any unauthorized access or use of your accounts. We're not responsible for any losses due to stolen or hacked passwords. We don't have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate. We may contact you, or any seat, authorized user, or login added to your account, based on the information provided in your account.

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6. Account Disputes

We don't know the inner workings of your organization or the nature of your personal relationships. You won't request access to or information about an account that's not yours, and you'll resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we'll require you to resolve the matter through proper channels outside of Nyxion.

When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.

II. Payment

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11. Refunds

You won't be entitled to a refund or credit from us under any circumstance. However, we may, at our sole discretion, offer a refund, discount or credit.

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12. Charges for Add-Ons

If you use an Add-on that has a charge, then you'll be billed that additional amount with each billing cycle for as long as the Add-on is active. Your billing cycle for an Add-on may differ from your billing cycle for your Monthly Plan or other features of the Service, and certain Add-ons may require upfront payment for their entire billing cycle. If you use Transactional Email to send bulk emails in violation of our Acceptable Use Policy, then we may charge you at the comparable Paid Marketing Plan rate or terminate your account.

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13. Billing Changes and Taxes

We may change any of our fees, including our charges for Monthly, at any time by posting a new pricing structure to our Nyxion Site or in your account and/or sending you a notification by email. Quoted fees don't include sales or other transaction-based taxes of any kind.

"Tax" or "Taxes" means all applicable taxes, including but not limited to indirect taxes such as goods and services tax ("GST"), value added tax ("VAT"), sales tax, fees, duties, levies, or other similar taxes. Unless otherwise stated, any consideration, amount payable, prices, fees, payment terms and/or any other amounts are exclusive of Taxes. In the event that any amount payable by you to Nyxion is subject to Taxes, Nyxion shall collect the full amount of those Taxes from you and said collection shall not reduce or somehow impact the amount to which Nyxion is entitled. You will reimburse and indemnify Nyxion for any Taxes, interest, and penalties that Nyxion may be compelled to pay on account of your non-payment. You must pay any applicable Taxes. In the event that any payments and/or amount payable by you to Nyxion is subject to (i) any withholding or similar tax; (ii) any Taxes not collected by Nyxion; or (iii) any other Taxes or other government levy of whatever nature, the full amount of that tax or levy shall be solely your responsibility and shall not reduce the amount to which Nyxion is entitled under the Agreement. You will indemnify and hold Nyxion harmless against any and all claims by any competent tax authority related to any such withholding or similar taxes and any penalties and/or interest thereon.

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III. Rights

14. Feedback and Proprietary Rights

We own all proprietary rights in the Service and Nyxion Site, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. You will respect our proprietary rights in the Service and Nyxion Site, and you may only use our brand assets according to our Brand Guidelines.

You shall retain all right, title, and interest in and to the material, content, data, and information (including your personal information and the personal information of others) you submit to Nyxion in the course of using the Service or which Nyxion otherwise retrieves or accesses at your direction or with your permission (collectively, your "Content"). Subject to these Terms, you grant us permission to use or disclose your Content (including any personal information therein) only as necessary to provide the Service to you and/or as otherwise permitted by these Terms, including as further provided under Section 15. You represent and warrant that: (i) you own or have otherwise obtained all necessary rights, releases, and permissions to submit all your Content to the Service and to grant the rights granted to us in these Terms and (ii) your Content and its submission and use as you authorize in these Terms will not violate (1) any applicable law, (2) any third-party intellectual property, privacy, publicity, or other rights, or (3) any of your or third-party policies or terms governing your Content.

You may provide or we may ask you to provide suggestions, comments, input or other feedback ("Feedback") regarding the Service. If you provide us with any Feedback, then you grant us a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as we see fit. Any Feedback you choose to provide is given entirely voluntarily. You understand that you will not receive any compensation for your Feedback, and that we may use any Feedback you provide to improve the Service or to develop new features and services.

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15. Privacy

For the purposes of privacy and data protection laws, for much of the personal information we process when providing the Service, we act as your processor or service provider in accordance with our Data Processing Addendum. However, there are certain instances, as more fully described in our Global Privacy Statement, where we process personal information, including Content and other data from Member accounts, as a controller to provide and develop the Service and for other important business purposes (e.g., for billing, administrative, security, and product improvement purposes). As described in our Global Privacy Statement, this includes sharing such information with our parent entity, Trappin Holdings LTD., and its group companies to provide, develop, and improve other Trappin Holdings products and services that you connect through the Service or otherwise use in accordance with the applicable Trappin Holdings terms of service, including to provide you with greater insights about your business and to personalize your user experience within the Trappin Holdings Platform.

When we, as a controller, process data that originates from the European Economic Area, UK, or Switzerland in a country that has not been found to provide an adequate level of protection under applicable data protection laws, we shall process such data in compliance with the standard contractual clauses between controllers annexed to the European Commission's Implementing Decision 2021/914 of 4 June 2021, or the equivalent clauses adopted by the UK Government, and currently located here (the "Controller-to-Controller Clauses"). The terms of the Controller-to-Controller Clauses are incorporated herein by reference and form an integral part of the Agreement between you and Nyxion.

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16. Right to Review Content, Campaigns and Sites

We may view, copy, and internally distribute Content from your Campaigns, your Sites, your Third-Party Integrations (as defined below) and your account to create algorithms and programs ("Tools") that help us spot problem accounts and improve the Service, among other uses permitted by these Terms or our Global Privacy Statement. For instance, we use these Tools to find Members who violate these Terms or applicable laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts. We may aggregate and anonymize data, including data from the Content of your Campaigns, Sites, and Third-Party Integrations to create statistical information. We own all such aggregated and anonymized data and may use it, including, but not limited to, operating, analyzing, improving, or marketing our products and services and sharing such data externally for research, marketing, or other lawful purposes.

IV. Rules and abuse

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17. General Rules

By agreeing to these Terms, you promise to follow these rules:

You won't send spam!

You won't use purchased, rented, or third-party lists of email addresses.

You'll comply with our Acceptable Use Policy, which forms part of these Terms.

If you use our API, you'll comply with our API Use Policy, which forms part of these Terms.

Nyxion doesn't allow accounts that promote or incite harm toward others or that promote discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you send a Campaign, create or manage a Site, or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:

A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.

Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.

We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:

an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;

a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or

a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.

Nyxion also does not allow the distribution of Content that is, in our sole discretion, materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances.

If you violate any of these rules, then we may issue a warning to, suspend, or terminate your account.

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18. Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Nyxion Member, please report it to our Abuse Team. (Every email Campaign sent through the Service has an embedded campaign tracking ID in the email header, making it easy to report suspected spam.) If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us via the contact information provided in our Copyright and Trademark Policy.

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19. Bandwidth Abuse/Throttling

You may only use our bandwidth for your Content, Campaigns and Sites. We provide image and data hosting only for your use of the Service, so you may not host images or data on our servers for anything else. We may throttle your sending or connection through our API at our discretion.

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20. Compliance with Laws and Regulations

You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You're responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLBA, Data Protection Laws (as defined in the Data Processing Addendum), anti-corruption and anti-bribery laws and regulations, United States and any other applicable economic sanctions, and export control laws and regulations ("Global Trade Laws and Regulations"), or other applicable laws. If you're subject to regulations (like HIPAA) and you use the Service, then we won't be liable if the Service doesn't meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children's Online Privacy Protection Act, or any other applicable laws.

If you collect any personal information pertaining to a minor and store such information within your Nyxion account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.

You agree, represent, and warrant to Nyxion that:

You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that (a) satisfies the requirements of applicable Data Protection Laws, (b) describes your use of the Service, and (c) includes a link to our Global Privacy Statement.

You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to Nyxion and to enable such data to be lawfully collected, processed, and shared by Nyxion for the purposes of providing the Service or as otherwise directed by you.

You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.

You will provide all notices and obtain all necessary consents required by applicable Data Protection Laws to enable Nyxion to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users in accordance with and as described in our Cookie Statement.

To the extent Nyxion processes your Content protected by Data Protection Laws as a processor on your behalf (all as defined in the DPA), you and Nyxion shall be subject to and comply with the Nyxion Data Processing Addendum ("DPA"), which is incorporated into and forms an integral part of these Terms. The DPA sets out our obligations with respect to data protection and security when processing your Content on your behalf in connection with the Service.

In addition, if you are subject to EU Data Protection Law (as defined in the Data Processing Addendum), you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Protection Law, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.

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21. Global Trade Compliance

You will not use, export, re-export, import, sell, release, or transfer the App, Trappin Holdings Platform or the software that supports the App ("Software") directly or indirectly, except as authorized by United States law, the laws of the jurisdiction where the App, Trappin Holdings Platform and Software are made available, and any other applicable laws and regulations. In particular, but without limitation, the App, Trappin Holdings Platform, Software, source code, and technology may not be exported, or re-exported, transferred, or released on any other applicable restricted party lists. By using the App and the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App, Trappin Holdings Platform and Software for any purposes prohibited by United States law.

In addition, you certify that neither you nor any principals, officers, directors, or any person or entity (including any beneficiaries, owners, affiliated and/or associated parties) you know to be involved with the use of the Software, Trappin Holdings Platform and the Services are not: (a) on any sanctions lists in the countries where the Software and Services are available, (b) doing business in any of the U.S. embargoed countries, and (c) a military end user as defined in 15 C.F.R § 744.

It's important to note that this Section 21 isn't meant to provide a comprehensive summary of the Global Trade Laws and Regulations that govern Nyxion, the Service, or the Trappin Holdings Platform, the App, or the Software. You're downloading and using the Software at your own risk, and it's your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.

V. Liability

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22. Limitation of Liability

To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service, including any downloads from the Nyxion Site; (ii) we and our Team won't be liable for any indirect, punitive, special, or consequential damages, including any loss of data, profits, revenues, business opportunities, goodwill, or anticipated savings under any circumstances, even if they're based on negligence or we've been advised of the possibility of those damages; and (iii) in any calendar month, the total liability of Nyxion and our third-party providers, licensors, distributors, or suppliers to you arising out of or relating to the Agreement-whether in contract, tort (including negligence), breach of statutory duty, or otherwise-will be no more than what you paid us for the Service the preceding month.

For the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.

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23. No Warranties

Except as expressly stated in these Terms, the Service is provided as-is and we don't provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn't limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Service, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can't guarantee that it'll meet your specific needs.

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24. Indemnity

You agree to indemnify and hold us and our Team harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses in connection with any claims you make that aren't allowed under these Terms due to a "Limitation of Liability" or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses, in connection with any claims arising out of or relating to (i) your Content, Campaigns, or Sites, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any terms of the Agreement, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you've made to us.

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25. Equitable Relief

Your violation of these Terms may cause irreparable harm to us and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms (meaning we may request a court order to stop you).

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26. Subpoena Fees

If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.

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27. Disclaimers

We and our Team aren't responsible for the behavior of any third parties, agencies, linked websites, or other Members, including third-party applications, products, or services for use in connection with the Service (each, a "Third-Party Integration"). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration. Any use of Quickbooks Online integration will be governed by the Trappin Holdings Terms of Service.

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VI. Other Important Stuff

28. Notice to U.S. Government End Users

The Software and the Nyxion Site, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, and consist of "Commercial Computer Software" and "Commercial Computer Software Documentation." The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:

only as Commercial Items,

with the same rights as all other end users, and

according to the Terms.

Published and unpublished rights are reserved under the copyright laws of the United States.

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29. Assignments

You may not assign any of your rights under the Agreement to anyone else. We may assign the Agreement and any of our rights and obligations hereunder to any other individual or entity at our discretion.

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30. Choice of Law

The State of Georgia laws and the Federal Arbitration Act will govern all disputes arising out of or relating to the Service and the Agreement, regardless of conflict of laws rules.

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31. Dispute Resolution

If you are a U.S. customer:

You and Nyxion agree that, except as provided below, any dispute, claim or controversy arising out of or relating in any way to the Service or this Agreement (a "Claim") will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction.

Either you or Nyxion can seek to have a Claim resolved in small claims court if all the requirements of the small claims court are satisfied. Either you or Nyxion may seek to have a Claim resolved in small claims court in your county of residence or the small claims court in closest proximity to your residence, and you may also bring a claim in small claims court of Fulton County, Georgia.

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 is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and Nyxion are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of the Agreement and/or the termination of your Service.

If you elect to seek arbitration, you must first send to Nyxion a written Notice of your Claim ("Notice of Claim"). The Notice of Claim to Nyxion should be sent in care of our registered agent Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808. The Notice of Claim should include both the mailing address and email address you would like Nyxion to use to contact you. If Nyxion elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your address on file. A Notice of Claim, whether sent by you or by Nyxion, must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific amount of damages or other relief sought.

You and Nyxion agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Nyxion therefore agree that, after a Notice of Claim is sent but before either you or Nyxion commence arbitration or file a claim in small claims court against the other, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Claim covered by the Agreement. If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference. Likewise, if Nyxion is represented by counsel, its counsel may participate in the conference as well, but Nyxion agrees to have a company representative fully participate in the conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

If we do not reach an agreement to resolve the Claim within sixty (60) days after the Notice of Claim is received, you or Nyxion may commence an arbitration proceeding by filing a Demand for Arbitration or, alternatively, by filing a Claim in small claims court. You agree that you may not commence any arbitration or file a claim in small claims court unless you and Nyxion are unable to resolve the claim within 60 days after we receive your completed Notice of Claim and you have made a good faith effort to resolve your claim directly with Nyxion during that time. If a Claim qualifies for small claims court, but a party commences an arbitration proceeding, you and Nyxion agree that either party may elect instead to have the Claim resolved in small claims court, and upon written notice of a party's election, the American Arbitration Association ("AAA") will administratively close the arbitration proceeding. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration will be conducted by the AAA before a single AAA arbitrator under the AAA's rules, which are available at www.adr.org or by calling 1-800-778-7879, except as modified by these Term. Unless Nyxion and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim.

The arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of Georgia or the state of your residence and will be selected by the parties from the AAA's National Roster of arbitrators. The arbitrator will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates meeting this criteria; (b) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. The arbitrator is bound by these Terms. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.

You and Nyxion agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and a Nyxion company representative shall appear at the administrative conference via telephone. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.

The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. Nyxion will not seek to recover its attorneys' fees and costs in arbitration from you unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of these Terms.

Unless you or Nyxion seek to have a Claim resolved in small claims court, the arbitrator shall determine all issues of liability on the merits of any Claim asserted by you or Nyxion and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or Nyxion prevail on a Claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator.

Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You are required to pay AAA's initial filing fee, but Nyxion will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in Fulton County, Georgia. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was 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 and Nyxion will not reimburse your initial filing fee. You and Nyxion agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or Nyxion, and you and Nyxion waive any objection to such fee modification.

You and Nyxion 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, if you have elected arbitration, unless both you and Nyxion agree otherwise, the arbitrator may not consolidate any other person's Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If Nyxion believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that Nyxion may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Dispute Resolution Section shall be null and void.

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32. Force Majeure

We won't be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.

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33. Survivability

Even if the Agreement is terminated, the following sections will continue to apply: Feedback and Proprietary Rights, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Dispute Resolution, Choice of Law, Severability, and Entire Agreement.

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34. Severability

If it turns out that a section of these Terms isn't enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.

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35. Interpretation

The headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms won't affect the way the Agreement is interpreted.

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36. Waiver

If we don't immediately take action on a violation of these Terms, we're not giving up any rights under the Terms, and we may still take action at some point.

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37. No Changes in Terms at Request of Member

Because we have so many Members, we can't change these Terms for any one Member or group.

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38. Further Actions

You'll provide all documents and take any actions necessary to meet your obligations under these Terms.

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39. Notification of Security Incident

If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we'll notify you if required by law. In that event, we'll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we're prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of Nyxion for such incident.

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40. Beta Services

From time to time, (i) we may invite you to try products or features related to our Service that are not generally available to all of our Members or the public or (ii) we may release products or features related to our Service that are identified in the App as beta, preview, pilot, limited release, or by a similar designation (collectively, "Beta Services"). Beta Services may be provided for evaluation or testing purposes only, and, therefore, may contain bugs or errors, and may not be as reliable as other features of the Service. The Beta Services are provided as-is. Your use of such features may include additional rules or restrictions that we may place on their use. We may discontinue Beta Services at any time in our sole discretion, and we may decide not to make Beta Services generally available. For the avoidance of doubt, Beta Services are a part of the Service, and, therefore, are subject to the terms of the Agreement, including, without limitation, Sections 22 and 23.

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41. Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Nyxion Site. Please note that, for purposes of providing notice, we may use any email or physical address within your account, including contact information associated with an account's primary contact, billing contact, owner profile, or any other profile or seat associated with the account. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Nyxion, 675 Ponce de Leon Ave NE, Suite 5000, Atlanta, Georgia, 30308, or any addresses as we may later post on the Nyxion Site.

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42. Entire Agreement

The Agreement, including these Terms and any Additional Terms you've agreed to by enabling any Add-ons, make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate or use the corresponding Add-on or feature of the Service.

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Where there's a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.

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Congratulations! You've reached the end.