NESAD™ TERMS OF SERVICE
Effective Date: November 1, 2016
Welcome to NESAD™, a cyber-secured, searchable, national reference depository of environmental, structural, and related physical due diligence report documents established to support and assist the commercial real estate mortgage lending, brokering, loan origination, and insurance industries with their environmental and structural due diligence and real estate asset evaluation objectives. By accessing and using the NESAD™ Website and its Services, you agree to be bound by these Terms of Service (“Terms”) and the NESAD™ Privacy Policy provided on the Website, which together form a binding agreement between you and the National Environmental Site Assessment Depository, Inc. (“NESAD™ ”, “we”, “us”, or “our”). If you do not agree to the Terms, or you are not eligible to use the NESAD™ Website, please do not use the NESAD™ Website or NESAD™’s Services.
NESAD™ uses the term “Website” to mean the website accessible at www.nesad.us, including without limitation all pages and subpages accessible via www.nesad.us and any content, program applications, functionality, materials, and modifications offered through or made to the Website pages. NESAD™ uses the term “Services” to mean the Website and all services offered through the Website.
As a NESAD™ subscriber and user, are responsible for regularly reviewing these Terms. Except where specifically noted herein, NESAD™ reserves the right, at its sole discretion, to change, modify, add, remove or terminate any portion of the Website or these Terms, in whole or in part, at any time, without prior notice. All changes to these Terms are effective immediately upon being posted to the Website. Your continued use of the NESAD™ Website and Services following any changes to these Terms will mean that you accept and agree to be bound by those changed Terms.
The use of certain Services offered by NESAD™ and/or through this Website may be subject to additional or modified Terms and Conditions, such as those contained within the NESAD Subscription Agreement that, depending on the case, may substitute, complete, and/or modify these Terms. Therefore, prior to the use of any such services, you must carefully read the corresponding specific Terms and Conditions.
ARBITRATION NOTICE: NESAD™ WANTS YOU TO BE AWARE THAT THESE TERMS OF SERVICE PROVIDE THAT ALL DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. BY USING THE NESAD™ WEBSITE AND THESE SERVICES, YOU ALSO AGREE TO RELINQUISH YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS ACTION CLAIM YOU MAY HAVE AGAINST NESAD™.
1.0 Eligibility for NESAD™ Depository-Archive Subscription and Use
1.1 NESAD™ Subscription and Depository-Archive Use Eligibility
As a precondition of use of the NESAD™ Website and the Services, you represent and warrant to NESAD™ that you are at least 18-years of age or have obtained the prior consent of your parents or guardians and that you possess the legal right and ability to enter into this Agreement, including without limitation that you have the authority to contractually bind the organization that you represent, and that you are not a person who is barred from using the NESAD™ Website or receiving the Services under the laws of the United States or any other applicable jurisdiction.
2.0 Your NESAD™ Depository-Archive Subscription
2.1 Registration of Your NESAD™ Subscription
To use or access certain Services offered by NESAD™ or program functionalities of the Website, you will be required to register with NESAD™ and/or subscribe and agree to the terms of the NESAD™ Subscriber Agreement, and to provide certain information, including personal information (collectively, “Information”) and materials (collectively with Information, “Materials”), to NESAD™. You may also be required to provide Information and/or Materials in the course of using the NESAD™ Website or the Services. By registering with NESAD™, subscribing to NESAD™’s Services, and using the NESAD™ Website and the Services, you represent and warrant that you will provide NESAD™ with full, true and correct Information, that you will not mislead NESAD™ as to your true identity, the identify of any company or other entity that you represent, and/or your authority to represent such third party company or entity, and that you will not impersonate or misrepresent your association with any person or entity. You agree to not register on the behalf of or at the request of any other entities.
2.2 Security of Your NESAD™ Subscription and Password
When you register your NESAD™ subscription, and receive a NESAD Map Search™ password, you are responsible for maintaining the confidentiality of your unique NESAD™ subscriber code and password, and for restricting access to your computer systems. You accept full responsibility and liability for all activities that occur under your NESAD™ subscription and password. If you have knowledge that your NESAD™ subscription or password has been compromised or used without your authorization, you should inform NESAD™ immediately in order to recover your subscription. In the event that your NESAD™ subscription or password is compromised, you agree to cooperate with NESAD™ in every reasonable way to help NESAD™ prevent the further unauthorized use or threat of unauthorized use of the NESAD™ Website or Services or deposited documents, or the disclosure or threat of disclosure of your account information and/or your password. NESAD reserves the right to refuse service, terminate accounts, or remove content in its sole discretion. Of note, you are able to change your own password under Subscriber Settings on the NESAD™ Website.
2.3 Restrictions on Use of NESAD™ and NESAD™ Depository-Archive
You agree to use the NESAD™ Website and NESAD™ depository-archive only as provided herein. You will not:
(a) use the NESAD™ Website in any manner which could damage, disable, overburden, or impair the NESAD™ Website or interfere with any other party’s use and application of the NESAD™ Website,
(b) use the NESAD™ Website in any manner that could create a risk to any person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement,
(c) obtain or attempt to obtain, share, or distribute any document materials or information through any means not intentionally made available or provided for through the NESAD™ Website, including document materials only available to a NESAD™ subscriber to NESAD™’s services without subscribing and agreeing to the terms of the NESAD™ Subscription Agreement ,
(d) provide any fraudulent, falsified, or distorted documents or Materials or Information to NESAD™, including subscriber data uploaded pursuant to the terms of a NESAD™ Subscriber Agreement ;
(e) violate any applicable laws or regulations, including any privacy or intellectual property laws or regulations, or violate these Terms, or
(f) misrepresent or attempt to misrepresent your identity while using the NESAD™ Website, including misrepresentation stating or implying our endorsement of you or your product or activity.
If you make any use of the NESAD™ Services other than as provided herein, you may violate applicable state and federal laws of the United States and other countries, in addition to breaching these Terms, and you may be subject to substantial damages FOR WHICH YOU SHALL BE SOLELY LIABLE. NESAD™ reserves the right to terminate any registered subscriber’s NESAD™ subscription at any time for any reason, cause, or purpose.
3.0 NESAD™ Representations, Warranties and Disclaimers
3.1 NESAD™ Subscriber-User Representations and Warranties
By using or accessing the NESAD™ Website, using the NESAD™ Services, and/or providing document or other Materials to NESAD™, you represent and warrant that (1) you have all right, power and authority to enter into these Terms and to fully perform hereunder, (2) you own or otherwise control all of the rights to your documents or Materials necessary to grant the licenses granted in these Terms, including, without limitation, all the rights necessary for you to submit the documents or other Materials, (3) your use of the NESAD™ Website, Website content and/or NESAD™ Services does not and will not violate or infringe any third party right, including but not limited to any third party intellectual property right, right of publicity or privacy, right of trade secret or confidentiality, or contractual right, or violate these Terms, the NESAD™ Privacy Policy, the NESAD™ Subscriber Agreement, or any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject, and (4) you will only submit and use documents Materials that may be used in accordance with the licenses you have granted herein. NESAD™ WARRANTS THAT UNLESS ALREADY IN THE PUBLIC RECORD OR ORDERED BY A COURT OF LAW, NESAD™ DOES NOT SHARE OR DISTRIBUTE ANY DOCUMENT(S) WITHOUT THE EXPLICIT AUTHORIZATION OF THE DOCUMENT DEPOSITOR AND/OR OWNERS.
3.2 Disclaimer of Representations and Warranties by NESAD™
You agree that your use of the NESAD™ Website and NESAD™ Services is at your own risk. Efforts by NESAD™ to modify the NESAD™ Website shall not be deemed a waiver of these limitations. The NESAD™ Website, including all content, information or NESAD™ Services provided through, or in conjunction with, the NESAD™ Website, is provided “as is,” as a convenience to all subscribers without representation or warranty of any kind to you or any third party, including, without limitation, any express or implied warranties (1) of merchantability or fitness for a particular purpose, (2) of informational content or accuracy, (3) of non-infringement, (4) of quiet enjoyment, (5) of title, (6) that the NESAD™ Website will operate in an error free, timely, secure, or uninterrupted manner, is current and up to date and accurately describes NESAD™’s products and services, or is free of viruses or other harmful components, (7) that any defects or errors in the NESAD™ Website will be corrected, or (8) that the NESAD™ Website is compatible with any particular hardware or software platform. NESAD™ may impose limits on certain features and NESAD™ Services or restrict your access to part or all of the NESAD™ Services without notice or liability.
3.3 Liability Disclaimer by NESAD™
The Website and Services offered thereon include search engine(s), database(s) and other platform(s) that allow certain users the ability to search for and obtain environmental site assessment reports (“Third Party Reports”) done by third parties. NESAD™ makes no representation as to the accuracy of Third Party Reports, nor does NESAD™ have any control over the nature and conditions of the information reflected in Third Party Reports. NESAD™ does not endorse any third party whose Third Party Reports may be provided to you via the Website or Services, and NESAD™ disclaims all liability with respect to any inaccurate, misleading, or outdated information in Third Party Reports. Moreover, as a user, you agree to hold harmless and seek to defend any third party document subscriber-depositor, its officers, and any related entities from any claim or loss. Subscriber-users of the NESAD™ depository-archive do so at their on sole potential peril and risk; documents within the NESAD™ depository-archive are for informational purposes and not for, or represented as for, any specific reliance.
IN NO EVENT SHALL NESAD™ OR ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, INTERNAL OPERATING UNITS, AFFILIATES, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, DEPOSITING SUBSCRIBERS, OR THEIR RELATED PARTIES (COLLECTIVELY, WITH NESAD™, THE “COMPANY ENTITIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS AND CONDITIONS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR BODILY HARM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE NESAD™ WEBSITE OR ITS ARCHIVED DOCUMENTS OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE NESAD™ WEBSITE, OR FOR ANY INFORMATION, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE NESAD™ WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, CRIMINAL STATUTE, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF NESAD™ HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM NESAD™’S NEGLIGENCE OR GROSS NEGLIGENCE. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, LIABILITY OF THE COMPANY ENTITIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. ADDITIONAL DISCLAIMERS MAY APPEAR WITHIN THE BODY OF THE NESAD™ WEBSITE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE NESAD™ WEBSITE OR THE DOCUMENT MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. THIS LIMITATION OF LIABILITY SHALL APPLY TO THIRD PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.
In using the NESAD™ Website and NESAD™ Services, you acknowledge that NESAD™ is not engaged in rendering consulting, engineering, medical, legal, counseling, or other professional services, advice, or interpretive guidance. NESAD™ encourages you to seek appropriate professional guidance from the appropriate professional subcriber promptly for any situation or problem that you may incur. NESAD™ shall not be liable to you or any third party for accepting or not accepting your documents or other Materials or for deleting or not deleting your document Materials, in whole or in part.
3.4 NESAD™ Indemnification
You will indemnify, defend (or settle) and hold harmless the NESAD™ Company Entities from all claims, actions, proceedings, losses, settlements, judgments, liabilities, suits, damages, disputes or demands, including without limitation any proceeding, investigation or claim by a self-regulatory organization, state or federal securities agency or commission, and including reasonable attorneys fees and all other costs, fees, and expenses (collectively, “Claims”) against any of the NESAD™ Company Entities to the fullest extent permitted by law arising out of or in connection with (1) your conduct, provision of content or use of the NESAD™ Website, or such actions by any third party through you, (2) your violation of the rights of another person or party, (3) any Materials provided or made available by you, and (4) any breach or violation by you of your obligations under these Terms, including without limitation any breach of your representations and warranties herein. You will not settle any indemnified claim without the prior written consent of NESAD™, such consent not to be unreasonably withheld. In connection with any Claims that may give rise to your indemnification obligations as set forth above, the NESAD™ Company Entities shall have the exclusive right, at their option, to defend, compromise and/or settle the suit, action or proceeding, and you shall be bound by the determination of any suit, action or proceeding so defended or any compromise or settlement so effected. The remedies provided in this Section are not exclusive of and do not limit any other remedies that may be available to the NESAD™ Company Entities pursuant to this Section.
3.5 NESAD™ Information Disclosure
NESAD™ reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, including personally identifiable information, or to edit, refuse to allow or to remove any information or materials, in whole or in part, in NESAD™’s sole discretion. However, NESAD™ shall disclose any such action with the appropriate registered NESAD™ subscriber.
4.0 NESAD™ Copyrights and Intellectual Property Rights
4.1 NESAD™ Site and NESAD Map Search™ Application Ownership
The NESAD™ Website (including the NESAD Map Search™ application) and all content, organization, graphics, design, compilation, translation, and other matters related to the NESAD™ Website (collectively, “Content”) are protected under applicable copyrights, trademarks, patents, and other proprietary (including but not limited to intellectual property) rights pursuant to international conventions and U.S. and other laws. The NESAD™ Website and all Content is the property of NESAD™ and/or third party licensors, and all right, title and interest in and to the NESAD™ Website and Content will remain with NESAD™ or identified third party licensors. Other product and company and subscriber names mentioned herein may be and will be treated as trademarks of the respective owners. You do not acquire ownership rights to the NESAD™ Website or any Content other than any rights in the documents or other Materials that you may have. You will abide by any and all additional copyright notices, information, or restrictions contained in any Content. You will not take, duplicate, modify, adapt, translate, reverse engineer, decompile, or disassemble the NESAD™ Website, the NESAD Map Search™ application, or any Website Content for any personal, business, or other organized enterprise. You may only use the NESAD™ Website, the NESAD Map Search™ application, and the Content as expressly permitted herein, and any other use is prohibited. Any copying, republication, or redistribution of the NESAD™ Website, the NESAD Map Search™ application, and the Content including by caching, framing, or similar means, is expressly prohibited without the prior written consent of the NESAD™ Company and/or the respective intellectual property rights holder identified in the subject content, which consent to be granted or withheld at the sole discretion of the rights holder.
4.2 Copyright Infringement Claims Against NESAD™
NESAD™ respects the intellectual property rights of others and expects both NESAD™ subscribers and non-subscribers to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide NESAD™’s Designated Copyright Agent, identified below, with all information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512, summarized as follows: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works on the NESAD™ Website are covered by a single notification, a representative list of such works; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party; (5) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (7) any other materials or information as may be required under the DMCA as amended from time to time or by the U.S. Copyright Office. We will respond to notices of alleged copyright infringement that comply with the above guidelines and applicable law. NESAD™ reserves the right to remove Materials alleged to be infringing and/or terminate your ability to use or access the NESAD™ Website or any portion thereof, without prior notice, at our sole discretion, and without liability to you.
4.3 NESAD™ Dedicated Copyright Agent
NESAD™ makes a good faith effort to avoid violating the copyright and intellectual copyrights of others. If you believe a copyright is being violated, and pursuant to the Digital Millennium Copyright Act (DMCA), please submit written notification of claimed copyright infringement to NESAD™’s Designated Copyright Agent (DCA) using the following contact information:
NESAD Designated Copyright Agent (DCA)
National Environmental Site Assessment Depository, Inc. (NESAD, Inc. also works)
1314 Bedford Avenue, Suite 102
Baltimore, Maryland 21208
copyrightagent@nesad.us AND contact@nesad.us
ALL INQUIRIES NOT RELEVANT TO THE ABOVE PROCEDURE WILL NOT RECEIVE A RESPONSE.
5. 0 NESAD™ Subscriber Documents and Materials
5.1 NESAD™ License Retention in Documents and Other Materials
Except as set forth in any NESAD™ Subscriber Agreement to which you agree in exchange for a subscription to certain of NESAD™’s Services, NESAD™ does not claim ownership of any documents, document data, Information (personal or otherwise), or other Materials or Feedback (as defined below) that you provide for the purpose of obtaining NESAD™’s Services. By providing or submitting documents or other Materials and/or Feedback, you grant to NESAD™, its affiliated companies, and sublicensees a non-exclusive, royalty-free, worldwide right to use the Materials and/or Feedback to provide you with NESAD™’s Services, and to use and archive your documents, Information, and Materials and/or Feedback in the manner specified in the NESAD™’s Privacy Policy. Such documents, Information, and Materials and/or Feedback are only retained by NESAD™ as long as reasonably necessary to provide the NESAD™ Services for which such Materials and/or Feedback were submitted.
5.2 NESAD™ Feedback
If you provide NESAD™ with feedback about the NESAD™ Website or Services provided through the NESAD™ Website (collectively, “Feedback”), then in addition to the license granted in the documents and Materials, NESAD™ will have the right to use such Feedback at NESAD™’s discretion, including but not limited to incorporating such Feedback into the NESAD™ Website and the right to assign, license or otherwise use such Feedback. You hereby give NESAD™ a perpetual, irrevocable, non-exclusive license under all rights necessary to incorporate such Feedback and use such Feedback for any purpose. No compensation will be paid with respect to the use of your Materials.
5.3 Your Responsibility for Document Materials and NESAD™‘s Monitoring Rights
You will be responsible for your own Materials and Feedback and the consequences of transmitting those Materials and/or Feedback. NESAD™ has no obligation to monitor your or any other user’s use of the NESAD™ Website. NESAD™ reserves the right to review and monitor your use of the NESAD™ Website and any Materials and/or Feedback submitted to the NESAD™ Website, and to remove any Materials and/or Feedback that NESAD™ believes at its sole discretion violate these Terms. NESAD™ reserves the right to restrict or terminate your access to the NESAD™ Website, including, without limitation, your access to any or all of the Services provided thereunder at any time without notice if we believe you have violated these Terms or are likely to violate these Terms or for any other purpose. Your sole remedy against NESAD™ in the event of a dispute arising out of these Terms, the NESAD™ Website or your use thereof, is to terminate these Terms by ceasing your use of the NESAD™ Website. In the event of termination of these Terms, NESAD™ will delete and/or store, in its discretion, Materials, Feedback and data associated with your use of the NESAD™ Website. NESAD™ may also change, suspend, or discontinue any aspect of the publicly available portion of the NESAD™ Website at any time, including the availability of any NESAD™ Website feature, database, or content.
6.0 Dispute Resolution (Arbitration Clause)
6.1 Binding Arbitration with NESAD™
You and NESAD™ each agree to submit to binding arbitration in the event of a dispute, controversy or claim (each, a “Dispute”) arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation or validity thereof (including the determination of the scope or applicability of these Terms to arbitrate), your or NESAD™’s rights and obligations under these Terms, the NESAD™ Website, the use of the NESAD™ Website, and/or the Information, Content, services and/or products that may be provided by or through or in connection with the NESAD™ Website. The arbitration will be held in Baltimore, Maryland before one arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a dispute as a class action. You also expressly waive your right to a jury trial. Each party shall be responsible for its own attorney, expert and other fees, unless such fees are awarded by the arbitrator to the prevailing party. Notwithstanding anything to the contrary in this Section, to the extent you have in any manner violated or threatened to violate NESAD™’s intellectual property rights, NESAD™ may seek (and you will not contest) injunctive or other appropriate relief in any local or federal court in Baltimore, Maryland, and you consent to exclusive jurisdiction and venue in such courts.
6.2 Arbitration Final with NESAD™
The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state law concerning arbitration, governs all arbitration under this clause. Any court having jurisdiction may enter judgment on the arbitrator’s award. If any part of this clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. Notwithstanding anything to the contrary contained herein, if the waiver of class action rights contained herein is not enforceable as to any person or persons, such non-enforceability shall apply to such person or persons only, and all other persons shall continue to be governed by the Arbitration Clause.
6.3 Giving Up Right of Class Action Against NESAD™
These Terms provides that all Disputes will be resolved by binding arbitration and not in court or by jury trial. IF A DISPUTE IS ARBITRATED, YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE NESAD™ COMPANY ENTITIES INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN ANY STATE STATUTE.
6.4 Choice Of Law; Jurisdiction And Venue; Waiver Of Jury Trial
To the maximum extent permitted by law, these Terms are governed by the laws of the United States of America and the State of Maryland, excluding any law or conflicts of law principle that would apply the law of another jurisdiction. To the extent a Dispute is not governed by the Arbitration Clause, you hereby consent to the exclusive jurisdiction and venue of courts in Baltimore, Maryland in all disputes arising out of or relating to the use of the NESAD™ Website or under these Terms; provided, however, that in the event NESAD™ is sued or joined by a third party in any other court or in any other forum in respect of any matter which may give rise to a claim by NESAD™ hereunder, you consent to the jurisdiction of such court or forum over any claim which may be asserted by NESAD™ therein. You irrevocably consent to the exercise of personal jurisdiction by such courts in any such action. In addition, and notwithstanding the foregoing, you irrevocably waive, to the fullest extent permitted by law, any objection that you may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon you and may be enforced in any court in which you are subject to a jurisdiction by a suit upon such judgment. Use of the NESAD™ Website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this paragraph. To the extent a claim is not governed by the Arbitration Clause, NESAD™ and you each hereby waive the right to a trial by jury in any court and in any suit, action or proceeding, whether in tort, contract, or otherwise, in which any such party is a party, as to any claim arising out of or in connection with these Terms, your or NESAD™ ’s rights and obligations under these Terms, the NESAD™ Website, use of the NESAD™ Website, and/or the services and/or products that may be provided by or through or in connection with the NESAD™ Website.
7.0 Miscellaneous NESAD™ Items
7.1 Viewing, Accessing and Use of the NESAD™ Website Outside the United States
NESAD™ makes no claims that the NESAD™ Website or any products or Services referenced therein may be lawfully viewed, accessed or used outside the United States. Access or use of the NESAD™ Website or any products or Services referenced therein may not be legal by certain persons or in certain countries. If you access or use the NESAD™ Website from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.
7.2 No Joint Venture Is Formed or Exists with NESAD™
You agree that no joint venture, partnership, employment or agency relationship exists between you and the National Environmental Site Assessment Depository, Inc.™, NESAD™, or NESAD-US™ as a result of these Terms or your use of the NESAD™ Website or Services.
7.3 Terms of Service Headings
Section headings and other captions in these Terms are used solely for the convenience of the parties, have no legal or contractual significance, and shall not be used in interpreting, construing or enforcing any of the provisions of these Terms.
7.4 Survival
The provisions of the following sections shall survive any termination or expiration of these Terms: Information Disclosure, Materials, Representations, Warranties and Disclaimers, Indemnification, Copyright and Other Intellectual Property, Dispute Resolution (Arbitration Clause), Choice of Law, Jurisdiction and Venue, Waiver of Jury Trial, and Miscellaneous.
7.5 No Waiver
The failure of NESAD™ to enforce any provision of these Terms will not be construed as a waiver or limitation of NESAD™’s right to subsequently enforce and compel strict compliance with that provision or any other provision of these Terms.
7.6 Assignment
No assignment, delegation or other conveyance of these Terms may be made by you (by operation of law or otherwise) without the prior written consent of NESAD™, to be given in its sole discretion. NESAD™ may assign its rights and obligations hereunder to any other party.
7.7 Statute of Limitations Against NESAD™
Any cause of action you may have with respect to your use of the NESAD™ Website must be commenced within one (1) year after the claim or cause of action arises; thereafter, any such claim will be forever barred, without regard to any contrary legislation.
7.8 NESAD™ Terms of Service Agreement Binding
In the event that any provision of these Terms is deemed to be unenforceable, said provision will be interpreted to reflect the original intent of the parties in accordance with applicable law, and the remainder of these Terms will continue in full force and effect.
7.9 Deliverable Notices to NESAD™
Notices to NESAD™ under these Terms shall be sufficient only if in writing and transmitted via personal delivery, delivered by a major commercial rapid delivery courier service, or mailed, postage or charges prepaid, by certified or registered mail, return receipt requested, to NESAD™ at the address listed below, with such notices being effective as of the date of actual, confirmed receipt by NESAD™. Notices to you are deemed effective if sent to the email, fax, mail address or other contact information provided by you, and are deemed effective upon the earlier of being confirmed received or one day after having been sent.
If you have questions or concerns regarding these Terms, contact NESAD™ at its physical Central Depository-Archive address:
National Environmental Site Assessment Depository, Inc. (NESAD, Inc. also works)
1314 Bedford Avenue, Suite 102
Baltimore, Maryland 21208