A DiamWall é uma rede de distribuição de conteúdo Web, desenvolvida para proteger serviços com uma solução automatizada de última geração, garantindo segurança, privacidade, rapidez e confiabilidade contra ataques cibernéticos.
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THIS SELF-SERVE SUBSCRIPTION AGREEMENT (“SUBSCRIPTION AGREEMENT”), ANY PLAN OR FEATURE LIMITS, PRODUCT DISCLAIMERS, OR OTHER RESTRICTIONS PRESENTED TO YOU ON THE DIAMWALL/NXSR WEBSITE OR DOCUMENTATION, AND ALL OTHER APPLICABLE TERMS (COLLECTIVELY, THE “AGREEMENT”) GOVERN YOUR USE OF OUR SERVICES (AS DEFINED BELOW), INCLUDING BUT NOT LIMITED TO, ANY FREE, TRIAL, OR PAID DIAMWALL/NXSR SERVICES OR SOFTWARE WHERE THE SUBSCRIPTION AGREEMENT APPEARS OR IS LINKED TO.
THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS, AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST DIAMWELL OR NXSR.
By clicking on the “Create Account” button (or any similar button) that is presented to you at the time of sign-up, by using or accessing the Services (as defined below), or by otherwise indicating your acceptance of this Agreement, you agree to be bound by this Agreement. DiamWall/NXSR may modify this Agreement from time to time, subject to the terms in Section 14 (Changes to this Agreement) below.
If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to DiamWall/NXSR that you have the authority to bind such Entity to this Agreement, in which case the terms “you,” “your,” "Customer", or a related capitalized term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not use the Services (as defined below).
This Agreement governs the use of DiamWall/NXSR’s cloud-based solutions that are provided as part of a subscription or require a DiamWall/NXSR account, along with any software made available by DiamWall/NXSR in connection with such services, including software development kits and DiamWall/NXSR’s application programming interfaces (“APIs”) made available in connection with such cloud-based solutions (collectively, the “Services”).
Subject to your compliance with this Agreement (including, without limitation, all payment obligations), DiamWall/NXSR hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Services. If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. “Affiliate” means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
Unless otherwise expressly permitted in writing by DiamWall/NXSR, you will not and you have no right to:
You are permitted to perform benchmark tests of our Services. If you disclose results of any benchmark tests of our Services performed by you or a third party under your direction, you (i) will include in any disclosure or otherwise make available all information necessary to replicate such benchmark tests, and (ii) agree that we may perform and disclose the results of benchmark tests of your services, irrespective of any restrictions on benchmarks in the terms governing your services.
You are responsible for maintaining the confidentiality of all usernames, passwords, and other access credentials (such as API tokens and OAuth credentials) created by or assigned to you (“Credentials”) and are solely responsible for all activities that occur with such Credentials.
If you permit third parties to access your DiamWall/NXSR account (e.g., by providing your API token or using OAuth), you do so at your sole risk and DiamWall/NXSR will not be directly or indirectly responsible or liable to you in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with such permission. You acknowledge that by permitting a third party to access your DiamWall/NXSR account, the third party may obtain, modify, or delete your account data and settings.
You agree to notify DiamWall/NXSR promptly of any actual or suspected unauthorized use of any Credentials. DiamWall/NXSR reserves the right to terminate any Credentials that DiamWall/NXSR reasonably determines may have been accessed or used by an unauthorized third party and will provide immediate notice of such to you. For your added security, we strongly encourage you to enable two-factor authentication in conjunction with your Credentials.
All Services that are provided to you as Paid Services (each a, “Paid Service”) will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process (“Subscription Term”). All of your subscriptions to Paid Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Services’ account dashboard prior to your next scheduled billing date.
You and your End Users (as such term is defined in the Privacy Policy) will retain all right, title and interest in and to any data, content, code, video, images or other materials of any type that you or your End Users transmit to or through the Services (collectively, “Customer Content”) in the form provided to DiamWall/NXSR. Subject to the terms of this Agreement, you hereby grant us a non-exclusive, fully sublicensable, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of Customer Content, in each case to the extent necessary to provide the Services.
You must obtain all necessary rights, releases and permissions to provide Customer Content to DiamWall/NXSR, and Customer Content and its transfer must not violate any applicable local, state, federal and international laws and regulations (“Laws”) (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 6.2 (Security), we assume no responsibility or liability for Customer Content, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Customer Content.
DiamWall/NXSR may modify certain components of Customer Content on or transmitted to or from your website to enhance your website’s performance or security or the functionality of the Services. For example, depending on the Services you select or the Apps that you enable, DiamWall/NXSR may: (i) intercept requests determined to be threats and take actions, such as, presenting them with a challenge page, dropping the request, presenting alternative content, redirecting and other similar measures; (ii) add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page; (iii) add scripts to your pages to perform additional performance tracking; (iv) add firewall rules to your website; and (v) make other changes to increase the performance, security or analytic capabilities of your website. DiamWall/NXSR will make it clear whenever a feature will materially modify Customer Content and, whenever possible, provide you a mechanism to allow you to disable the feature.
By transmitting Customer Content to or through the Services, you represent and warrant that Customer Content does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
DiamWall/NXSR retains all right, title, and interest in all models, observations, reports, analyses, statistics, databases and other information created, compiled, analyzed, generated or derived by DiamWall/NXSR from server, network or traffic data generated by DiamWall/NXSR in the course of providing the Service (“Network Data”), and shall have the right to use Network Data for purposes of providing, maintaining, developing, and improving its Services. DiamWall/NXSR may monitor and inspect the traffic on the DiamWall/NXSR network, including any related logs, as necessary to perform the Services. To the extent the Network Data includes any Personal Data (as defined below), DiamWall/NXSR will handle such Personal Data in compliance with applicable data protection laws.
We may offer free or trial versions of the Services (“Free Services”). With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by DiamWall/NXSR in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
By using the Services you are agreeing, among other things, that you will not use the Services to (a) falsely imply any sponsorship or association with DiamWall/NXSR; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.
The Services are offered primarily as a platform to cache and serve web pages and websites. Unless explicitly included as part of a Paid Service purchased by you, you agree to use the Services solely for the purpose of (i) serving web pages as viewed through a web browser or other functionally equivalent applications, including rendering Hypertext Markup Language (HTML) or other functional equivalents, and (ii) serving web APIs subject to the restrictions set forth in this Section 2.8. Use of the Services for serving video or a disproportionate percentage of pictures, audio files, or other non-HTML content is prohibited, unless purchased separately as part of a Paid Service. If we determine you have breached this Section 2.8, we may immediately suspend or restrict your use of the Services, or limit End User access to certain of your resources through the Services.
You may access or use, at your sole discretion, certain third-party products and services that interoperate with the Services (“Third-Party Products”), including, but not limited to, third-party apps provided on DiamWall/NXSR Apps, third-party service integrations made available through the DiamWall/NXSR dashboard or APIs, and third-party products or services that you authorize to access your DiamWall/NXSR account using OAuth or other Credentials. DiamWall/NXSR does not make any representations, warranties, or guarantees regarding the Third-Party Products and the providers thereof, including, but not limited to, as to their continued availability, security, and integrity. If DiamWall/NXSR makes a Third-Party Product available to you, it is on an “AS IS” and “AS AVAILABLE” basis, and DiamWall/NXSR may cease providing it without entitling you to any refund, credit, or other compensation. Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third party provider. Your access or use of a Third-Party Product is solely between you and the applicable Third-Party Product provider. DiamWall/NXSR will not be directly or indirectly responsible or liable to you in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Products.
In order to access those Services for which we require a fee (“Paid Services”) you will be required to provide DiamWall/NXSR with your credit card or other payment information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly, annual, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that you sign up for. Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. DiamWall/NXSR will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.
We reserve the right to change the fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
Unless otherwise stated, our charges will include value-added taxes, whenever applicable, according to the Portuguese Tax Rules concerning Portugal, other EU countries and the rest of the world.
From time to time, we may make non-production Services (“Beta Services”) that are under development available to you at no charge. You may access these Beta Services at your sole discretion. Beta Services are intended for testing purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. DiamWall/NXSR is not obligated to provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services testing period will expire upon the earlier of one year from the testing start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue, suspend, or remove Beta Services (including any of Customer Content stored as part of the Beta Services) or your access thereto at any time in our sole discretion and may never make them generally available. You understand that any information you obtain regarding Beta Services is DiamWall/NXSR confidential information, and you agree not to disclose such information until a Beta Service becomes generally available, except as required by law, and to only use such information in connection with your use of the Beta Services. Notwithstanding Section 12, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
If Customer Content includes the personal data of European data subjects as those terms are defined by EU and UK Data Protection Laws and all data defined as ‘personal information’ under the California Consumer Privacy Act (“CCPA”) (collectively, “Personal Data”), then DiamWall/NXSR is a data processor or sub-processor, as applicable, and DiamWall/NXSR will handle such Personal Data in compliance with DiamWall/NXSR’s (“Data Processing Addendum”), which is hereby incorporated by reference into this Agreement. “EU and UK Data Protection Laws” means all Laws and regulations of the European Union, the European Economic Area, their member states, Switzerland, and the United Kingdom, applicable to the processing of Personal Data including (where applicable), the Swiss Federal Act on Data Protection, the UK Data Protection Act and the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data).
We implement security procedures to help protect Customer Content from security threats. However, you understand that your use of the Service necessarily involves transmission of Customer Content over networks that are not owned, operated or controlled by us, and we are not responsible for any of Customer Content that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Customer Content will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
You will comply with all Laws. You agree that you are responsible for determining whether use of the Service will satisfy your individual compliance obligations. You will not use the Service for any reason if you or any party that owns or controls you (if you are a legal entity), are subject to sanctions or otherwise designated on any list of prohibited or restricted parties or services, including but not limited to the lists maintained by the European Union or its Member States, or other applicable government authority. You will not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited. You further acknowledge that performance of the Agreement may be subject to EU anti-corruption and anti-bribery Laws, rules, and regulations. You therefore covenants that you will make no payments, including charitable donations, of money or anything of value, nor will such be offered, promised or paid, directly or indirectly, to any person or entity (a) to improperly influence the acts of such person or entity, (b) to induce such person or entity to use its influence with a government to obtain or retain business, or (c) to gain an improper advantage in connection with any business venture or contract in which DiamWall/NXSR is a participant.
You will lose your license to use the Service if you violate any provision of this Agreement. DiamWall/NXSR’s policy is to investigate violations of this Agreement. We reserve the right to suspend or terminate your user account upon receiving any number of DMCA notifications from content owners regarding your website(s), or upon learning through other means that you are a repeat infringer. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by DiamWall/NXSR are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of DiamWall/NXSR or our third-party licensors. Except as expressly authorized by DiamWall/NXSR you may not make use of the Materials. DiamWall/NXSR reserves all rights to the Materials not granted expressly in this Agreement.
You hereby grant DiamWall/NXSR a non-exclusive, royalty-free, worldwide, transferable, irrevocable, sublicensable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, corrections, or other feedback (“Feedback”) you provide to DiamWall/NXSR relating to the Services.
DiamWall/NXSR will defend you against any third party claim brought against you, to the extent that such claim is based on an allegation that a Paid Service, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a "Claim"), and we will indemnify you against any damages and costs (including reasonable legal fees) finally awarded by a court of competent jurisdiction attributable to such a Claim or agreed to settlement by DiamWall/NXSR. If any portion of a Paid Service becomes, or in DiamWall/NXSR’s opinion is likely to become, the subject of an infringement claim, DiamWall/NXSR may, at DiamWall/NXSR’s option: (a) procure the right for you to continue using the Paid Service; (b) replace the Paid Service with non-infringing services which do not materially impair the functionality of the Paid Service; (c) modify the Paid Service so that it becomes non-infringing; or (d) terminate the Paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the Paid Service. DiamWall/NXSR will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon: (w) any use of a Paid Service not in accordance with this Agreement or the applicable DiamWall/NXSR documentation; any use of a Paid Service in combination with third party products or services not supplied by DiamWall/NXSR; or (z) any modification of a Paid Service by any person other than DiamWall/NXSR or its authorized agents. THIS SUBSECTION SETS FORTH DIAMWALL/NXSR’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE DIAMWALL/NXSR ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE DIAMWALL/NXSR ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE DIAMWALL/NXSR ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE DIAMWALL/NXSR ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL THE DIAMWALL/NXSR ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE DIAMWALL/NXSR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE DIAMWALL/NXSR ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO DIAMWALL/NXSR TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This Agreement will be governed by the laws of the Portugal without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and DiamWall/NXSR agree to submit to the personal and exclusive jurisdiction of the state and courts located in EU.
DiamWall/NXSR reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
While translations of this document may be provided in multiple languages for your convenience, the English language version hosted at the link above is binding for all users of the Service.
This Agreement constitutes the entire and exclusive understanding and agreement between you and DiamWall/NXSR regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2.5.1 and Sections 9 through 19.
In the interest of resolving disputes between you and DiamWall/NXSR in the most expedient and cost effective manner, you and DiamWall/NXSR agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DIAMWALL/NXSR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding Subsection 17.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and DiamWall/NXSR will be governed by the Commercial Arbitration Rules and Mediation Procedures ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). DiamWall/NXSR's address for Notice is: DiamWall/NXSR, Inc., 101 Townsend St., San Francisco, CA 94107. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or DiamWall/NXSR may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in Portugal provided that if the claim is for €10.000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse DiamWall/NXSR for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
YOU AND DIAMWALL/NXSR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and DiamWall/NXSR agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that DiamWall/NXSR makes any future change to this arbitration provision (other than a change to DiamWall/NXSR's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to DiamWall/NXSR's address for Notice, in which case your account with DiamWall/NXSR will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Notwithstanding Section 16, if Subsection 17.1 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to this Agreement.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
You agree to allow us to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page, to display your logo on the DiamWall/NXSR website, and to otherwise refer to you in print or electronic form for marketing or reference purposes. If you do not wish for DiamWall/NXSR to use your name or logo in any of the preceding ways, please contact support@diamwall.com.
The Service is offered by NXSR, Lda., located at Rua Fialho de Almeida, 14, 2.Esq – Esc BS09, 1070-129 Lisboa, Portugal. You may contact us by sending correspondence to the foregoing address or by emailing us at support@diamwall.com.
A DiamWall é uma rede de distribuição de conteúdo Web, desenvolvida para proteger serviços com uma solução automatizada de última geração, garantindo segurança, privacidade, rapidez e confiabilidade contra ataques cibernéticos.
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