Throughout this document, we may use certain words or phrases, and it is important that you understand the meaning of them. The following is a non-exhaustive list of definitions of words and phrases found in this document:
- “App” refers to our mobile software application;
- “Nekst” refers to our company, known as “Nekst LLC”; our Site; our Service; our App; or a combination of all or some of the preceding definitions, depending on the context of in which the word is used;
- “Service” refers to the services that Nekst LLC provides, including our Site and App;
- “Site” refers to our website, www.nekstapp.com;
- “User” refers to anyone who downloads and/or uses our App (regardless of whether they are a paid or registered user) or any other portion of our Service and, without limiting the generality of the foregoing, includes general visitors to our Site;
3. What Nekst Offers
Nekst’s Site is designed for real estate agents and brokers who can manage their business and daily tasks within an online platform as well as through our App. Members of the Service have the ability to attract non-members into a project where they can be provided with information and education regarding a given real estate transaction.
In order to use our Service, you must meet a number of conditions, including but not limited to:
- You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, Nekst, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
- You must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, must not be less than 18 years of age.
- You must not sign up on behalf of a natural person other than yourself.
- You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
- You must install our App, if using it, only on a device on which you are authorized to install it.
- You must be licensed to operate in the capacity of a real estate agent or broker (including other authorized professions such as attorneys).
5. Nature of Service
Nekst is offered on an as-is basis. Although we believe that Nekst is useful for many applications, you agree that it is your sole responsibility to determine whether Nekst is suitable for your specific situation and you hereby agree to release Nekst from any and all liability relating to the use of our App or any other portion of our Service.
6. Rules of Use
We require that you agree to certain Rules of Use in order to have permission to use our Service. You must not:
- Violate the laws of the United States, its states, or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
- Act as a real estate agent or broker when not authorized to do so.
- Post or send anything through our App or other parts of our Service that is violent, threatening, pornographic, racist, hateful, or otherwise objectionable according to the opinion of Nekst.
- Be fraudulent or negligent in your representations to any person.
- Infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party.
- Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Nekst Site, Service, or its Users’ computers.
- Do anything else which could bring Nekst into disrepute or which could violate the rights of any person.
7. Payment & Refund Policy
Payment can be made on our Site through our third party payment provided, Authorize.net. All prices are listed in United States dollars and specific terms of payment are posted on our Site and hereby incorporated into this Agreement by reference.
Subscriptions are available in monthly or yearly packages. You may cancel your Service at any time, and we will not rebill you at the beginning of the next subscription period. Nekst does not offer any refunds for cancelled portions of our Service, even if on a pro rata basis, but Users will continue to have access to the Service until the end of their subscription period.
Discounts may be made available to new Users in the form of a promotional code; current Users shall not be permitted to use such codes. Nekst may refuse to honor such promotional codes for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason.
9. Chargebacks and Credit Card Cancellations
Where a User conducts a chargeback against Nekst, Nekst shall be entitled to recover the amount of that chargeback from the User as liquidated damages, as well as any reasonable attorneys’ fees, collection agency fees, court costs, disbursements, and other expenses incurred in Nekst’s enforcement of its rights under this section.
In the event that a credit card expires, is declined, or is otherwise cancelled in such a way that affects the renewal of a User’s subscription, Nekst shall have the right to cancel the provision of its Service to that User immediately and delete any information stored on Nekst’s servers relating to that User, though Nekst will usually attempt to contact the User to permit the User to provide proper payment information before deleting the User’s information.
10. Limited License
Users who use our App agree that they are purchasing the right to download and install one copy of the App on their mobile device at the price listed for the duration of the subscription period applicable to their purchase. Users must not attempt to reverse engineer, redistribute, or otherwise manipulate or copy our App without our permission.
Nekst may revoke its license to a User at any time for any reason, at which point the User shall immediately take all necessary steps to delete the App and any derivative files from any hardware device in their possession. If Nekst revokes a license without cause, Users shall be entitled to a pro rata refund of their unused subscription period. If Nekst revokes a license with cause, Users shall not be entitled to any refund whatsoever. A revocation of a license shall be deemed to be a revocation with cause where the User has breached any provision of this Agreement or any applicable law.
11. Our Copyright
Nekst’s intellectual property is important to us as it distinguishes us from third party competitors. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site or in the App without receiving our prior written permission.
12. Your Copyright
Nekst must be assured that it has the right to use the content that is posted to its Site by its Users. Such content may include, but is not limited to, photographs, videos, text, audio, and other materials. Whenever submitting content to our website, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of the content that you submit to us, to the extent that is necessary to provide you with our Service. You warrant to us that you have the right to grant us this right over the content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.
“Nekst” is a trademark used by us, Nekst LLC, to uniquely identify our Site, Service, App, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our website or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own website or mobile application, regardless of whether it is related to real estate.
14. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
15. Copyright & Trademark Infringement
We take copyright infringement very seriously, and we have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act. If you believe that your copyright has been infringed, please send us a message which contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our website of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification electronically and send it to our Copyright Agent at firstname.lastname@example.org.
Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us similar information to that above in regards to any allegation of trademark infringement, and we will address it as soon as practicable.
16. Data Charges
Users of our App may be subject to data charges assessed by their mobile carriers. Users agree that they are solely responsible for any data charges incurred as a result of using Nekst on their mobile devices, and hereby release Nekst from any liability for such charges. Users are advised to contact their respective mobile carriers to determine the actual cost of using Nekst on their mobile devices.
17. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY FRAUD, NEGLIGENCE, BREACH OF CONTRACT, OR OTHER UNLAWFUL, TORTIOUS, OR OTHERWISE ACTIONABLE CONDUCT COMMITTED BY A USER AGAINST YOU, WHETHER IN RELATION TO A REAL ESTATE TRANSACTION OR OTHERWISE.
WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING YOUR CREDIT CARD COMPANY OR AUTHORIZE.NET, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
19. Choice of Law
This Agreement shall be governed by the laws in force in the State of Ohio. The offer and acceptance of this contract are deemed to have occurred in the State of Ohio.
20. Forum of Dispute
You agree that any dispute arising from or relating to this Agreement which names Nekst as a defendant or other interested party shall be heard solely by a court of competent jurisdiction in the State of Ohio. Specifically, where the subject matter of a dispute is eligible for it, you agree that any disputes shall be heard solely within a municipal or county court of the State of Ohio’s small claims division (“Small Claims Court”) in accordance with the Ohio Revised Code, Chapter 1925.
If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court.
If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. At the time of drafting this Agreement, Section 1925.02(A)(1) of the Ohio Revised Code sets the monetary jurisdiction of the Small Claims Court at $3,000.
You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
21. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Nekst shall have the sole right to elect which provision remains in force.
Nekst reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
24. Termination & Cancellation
We may terminate your access to our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
25. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will post the changes here and e-mail you to inform you that amendments have been made. Your continued use of our Service shall constitute your acceptance of the amended version of this Agreement.
27. California Users and Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Nekst must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to email@example.com.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Last Modified: October 16, 2013