The NicoBoard mobile application provided to you on behalf of your medical provider (“Application”) and the Nicolette website at www.nicolette.com (“Site”) are provided to you by Nicolette, Inc.

PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND NICOLETTE, INC. (“NICOLETTE,” “WE,” OR “US”).

SECTION 14 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 14 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

By accessing or using the Site or downloading, installing or using the Application, accessing or using any content, information, services, features or resources available or enabled via the Site or Application (collectively with the Application, the “Services”), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time through the Site and Application; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract with Nicolette; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. References to “you,” “User” and “Users” in this Agreement refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives (including without limitation, medical providers and parents or legal guardians using the Services). Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

Subject to Section 15.9 of this Agreement, Nicolette reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

If you are medical provider, your use of the Services is also subject to any additional agreements that we have entered into with the medical facility through which you are providing medical services (“Supplemental Agreements”). Such Supplemental Agreements are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and a Supplemental Agreement, the terms of the Supplemental Agreement will control with respect to the subject matter of such agreement.

1. No Medical Advice. YOU ACKNOWLEDGE AND AGREE THAT NICOLETTE DOES NOT PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND THAT NICOLETTE DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION THROUGH THE SERVICES. THE CONTENTS OF THE SERVICES (INCLUDING ALL GRAPHICS, IMAGES, INFORMATION, AND OTHER MATERIALS) ARE FOR INFORMATIONAL PURPOSES ONLY. THE PROVISION OF SUCH CONTENT DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP, AND DOES NOT CONSTITUTE A MEDICAL OPINION, MEDICAL ADVICE, OR DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR DOCTOR, PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.

2. Registration. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Nicolette immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account at any given time. Nicolette reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Nicolette. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE USING YOUR ACCOUNT WHETHER OR NOT SUCH ACCESS TO AND USE OF YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU.

3. Ownership of and License to Use Services.

3.1 Use of the Services. Nicolette and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Nicolette grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Nicolette, its suppliers, and its service providers reserve all rights not granted in this Agreement.

3.2 Trademarks. Nicolette's stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Nicolette and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

4. User Content.

4.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“User Content”). Nicolette has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Nicolette reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Nicolette shall have the right to remove any content that violates this Agreement or is otherwise objectionable.

4.2 Ownership of Your Content. Nicolette does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Nicolette the license set forth in Section 4.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.

4.3 License to Your Content. Subject to any applicable Account settings, you grant Nicolette a right to copy, use, and display Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Services. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.

4.4 Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Nicolette's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Nicolette; or (vi) discloses any personal or confidential information about another person without the express written consent of such person (except if you are a parent or legal guardian disclosing information about your child who is a patient to your child’s medical provider).

5. Restrictions on Use of the Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Nicolette’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Nicolette reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Nicolette pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Nicolette under law, equity, statute, or otherwise.

6. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Nicolette (“Feedback”) is at your own risk and that Nicolette has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nicolette a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.

7. Third-Party Services.

7.1 Third-Party Websites, Applications & Ads. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Nicolette does not control and is not responsible for Third-Party Links. Nicolette provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

7.2 App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Nicolette and not with the App Store. Nicolette, not the App Store, is solely responsible for Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.

7.3 Additional Terms for Apple Apps. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:

(a) You acknowledge and agree that (i) this Agreement is concluded between you and Nicolette only, and not Apple, and (ii) Nicolette, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Nicolette and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nicolette.

(d) You and Nicolette acknowledge that, as between Nicolette and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation[, including in connection with the App Store Sourced Application’s use of the HealthKit framework].

(e) You and Nicolette acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Nicolette and Apple, Nicolette, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

(f) You and Nicolette acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

8. Indemnification. You agree to indemnify and hold the Nicolette, its parents, subsidiaries, affiliates, officers, directors, employees, contractors, and agents and its licensors and suppliers (“Nicolette Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; (f) if you are a medical provider, your violation of any professional codes of conduct or other standards applicable to your profession; or (g) any claims brought against any Nicolette Parties arising from your acts or omissions. Nicolette reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nicolette in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to Services.

9. Medical Provider Warranties. If you are a medical provider, you hereby represent and warrant that: (i) any communications or other content provided by you through the Services will not conflict with or violate any applicable law, rule, or regulation, or any guidelines, rules or regulations required of professionals in your profession; (iii) your conduct on the Services will at all times be professional; and (iv) you have all necessary qualifications, registrations, and licenses required by the applicable law and you are in good standing and qualified to provide medical services.

10. Disclaimer of Warranties and Conditions.

10.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE NICOLETTE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10.2 NICOLETTE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE, COMPLETE, OR CURRENT; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; (5) YOUR USE OF THE SERVICES WILL NOT EXPOSE YOUR HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; OR (6) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICES.

10.3 YOU ACKNOWLEDGE AND AGREE THAT THE NICOLETTE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE NICOLETTE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

10.4 NONE OF THE NICOLETTE PARTIES ENDORSE OR RECOMMEND ANY USER CONTENT OR PROVIDER SERVICES MADE AVAILABLE THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY USER (INCLUDING WITHOUT LIMITATION, MEDICAL PROVIDERS) THROUGH THE SERVICES. YOU ACKNOWLEDGE THAT THE SERVICES MERELY ACT AS A CONDUIT THAT ALLOWS USERS TO COMMUNICATE. NONE OF THE NICOLETTE PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO, ANY TRANSACTION, COMMUNICATION OR INTERACTION BETWEEN YOU AND ANY OTHER USER, INCLUDING WITHOUT LIMITATION, YOUR PROVIDER, OR FOR ANY RESULTS CAUSED BY RELYING ON USER CONTENT OR PROVIDER SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEATH, BODILY INJURY OR HEALTH PROBLEMS.

10.5 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11. Limitation of Liability.

11.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NICOLETTE PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NICOLETTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE NICOLETTE PARTIES ARE LIABLE TO YOU EXCEED $100. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THE LAWS OF SOME OTHER STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.

11.3 User Content and Settings. The Nicolette Parties assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any content, User communications, or personalization settings.

11.4 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Nicolette and you.

12. Termination. At its sole discretion, Nicolette may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Nicolette reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Nicolette for any purchases will remain due.

13. International Users. Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Nicolette intends to announce or promote the availability of such services or content in your country. Services are controlled and offered by Nicolette from its facilities in the United States of America. Nicolette makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.

14. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nicolette and limits the manner in which you can seek relief from us.

14.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services, the Rewards Program, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and we may assert claims in small claims court if the claims qualify; and (2) you or Nicolette may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

14.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Nicolette, Inc., 100 W. Broadway, Suite 3000, Long Beach, CA 90802,. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Nicolette will pay them for you.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

14.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Nicolette. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

14.4 Waiver of Jury Trial. YOU AND NICOLETTE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nicolette are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

14.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 14.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and brought into the state or federal courts located in California in accordance with Section 15.4. All other claims shall be arbitrated.

14.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Nicolette, Inc., 100 W. Broadway, Suite 3000, Long Beach, CA 90802, or email to support@nicolette.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.

14.7 Severability. Except as provided in Section 14.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

14.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Nicolette.

14.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nicolette makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Nicolette at the following address: Nicolette, Inc., 100 W. Broadway, Suite 3000, Long Beach, CA 90802,.

15. General Provisions.

15.1 Electronic Communications. The communications between you and Nicolette use electronic means, whether you visit Services or send Nicolette e-mails, or whether Nicolette posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Nicolette in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Nicolette provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.

15.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nicolette’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

15.3 Force Majeure. Nicolette shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

15.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Nicolette agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in Los Angeles County, California or federal courts located in the Central District of California.

15.5 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.

15.6 Notice. Where Nicolette requires that you provide an e-mail address, you are responsible for providing Nicolette with your most current e-mail address. In the event that the last e-mail address you provided to Nicolette is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Nicolette’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nicolette at the following address: Nicolette, Inc., 100 W. Broadway, Suite 3000, Long Beach, CA 90802,. Such notice shall be deemed given when received by Nicolette by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

15.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: Nicolette, Inc., 100 W. Broadway, Suite 3000, Long Beach, CA 90802, or e-mail support@nicolette.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

15.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.9 Severability. Subject to Section 14.7, if any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

15.10 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

15.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

15.12 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.