FELICITY INC. (“NEST PAYROLL”) 

TERMS OF SERVICE

Last Updated: March 16, 2019

These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other online products and services (collectively, our “Services”) provided by Felicity Inc., a Delaware Corporation doing business as Nest Payroll. By registering for our Service, you agree to these Terms. It is your responsibility to review these terms of service periodically. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16, do not access or use our Services.

By accessing or using any website or service made available by Nest Payroll, you acknowledge that you (i) have read and agree to be bound by these terms of service and (ii) agree to comply with all applicable laws and regulations, including US state and federal tax laws and regulations. 

You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.

YOU AGREE THAT BY USING THE SERVICES YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.

Our Services are not tax or accounting advice and there is no tax or accounting professional-client relationship between you and us. 

Nest Payroll is not an accounting or tax firm and does not provide any tax advice. Our Services are not substitutes for the advice of an accountant or tax professional and if you need professional advice for your specific matter, you should consult a tax professional in your area. At no time is a tax professional or accountant-client relationship or any other special relationship created between you and Nest Payroll or any employee or other person associated with Nest Payroll, and any information you provide us is not protected by accountant or tax professional-client privilege. You are and will be representing yourself in any matter you undertake using the Services. 

We provide online tools and information to assist you with the preparation and execution of your household payroll and related information. The forms, reports and other materials available through the Services, including any descriptions, information and other help resources such as tips or blog posts (collectively, the "Document Materials") are for informational purposes only; they are not professional tax advice and are not guaranteed to be correct, complete or up-to-date. We do not review the Document Materials or any information you input for accuracy or tax compliant sufficiency, draw tax compliant conclusions, provide professional advice or apply the tax law to the facts of your particular situation. You understand that our providing of the Services to you is neither tax nor accounting advice nor the practice of tax law, and that the Service and Document Materials are not customized to your particular needs. 

If you have any questions about these Terms or our Services, please contact us at info@nestpayroll.com.

1     Service

1.1 Household Payroll. As long as you meet your payment obligations and comply with the terms of this Agreement, Nest Payroll will provide you the Service for the purpose of calculating payroll, including: calculating gross and net pay, providing pay stubs that meet legal requirements; preparing / filing / sending any required state and/or federal tax returns; enabling or facilitating related payroll tax payments in a timely manner; prepping and filing your year-end tax documents W2 and W3 forms, and providing your signature ready Schedule H to be filed with your personal return.

The Service may only be used for its intended purpose of calculating household payroll and its associated tax liabilities for your household employees. The Service may not be used by businesses, for independent contractors or on a professional basis for anyone other than you, a household employer or a household/domestic employee. Anything other than household payroll will result in incorrect information that you will be solely responsible for. In performing the Service, you acknowledge and agree that Nest Payroll is not acting in a fiduciary capacity for you and/or your household and using the Service does not relieve you of your obligations under federal or state laws or regulations to retain records relating to your data contained in Nest Payroll’s files.

1.2 The Service does not include calculation of deductions or taxes other than those that apply to household payroll, nor does it include calculation or reporting of penalties or interest on delinquent tax payments. Nest Payroll cannot correct or change any past payments, payroll or tax history of your household employee(s).

1.3 Nest Payroll Account Registration. You must open an account with us to use the Services. During registration we will ask you for information, including your name and other personal information. We ask you for information that we are required to obtain in order to process your household payroll properly with the federal and state goverment. You must provide accurate and complete information in response to our questions, and keep that information current. You are fully responsible for all activity that occurs under your Account, including any actions taken by persons to whom you have granted access to the Account. We reserve the right to suspend or terminate the Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

1.4 Electronic Signature Consent  You agree to Nest Payroll’s electronic signature consent when presented, including any federal, state or local powers of attorney, authorization to obtain a federal employer identification number and/or a state tax ID number if needed, to receive legal notices electronically and to file tax returns and aid the payment of taxes due on your behalf, including estimated taxes to the IRS.

1.5 Electronic Forms Consent  You consent to Nest Payroll furnishing you and your employees with electronic delivery of tax forms, whether through email, text, push notification or delivered through the application itself, including W2s for your employee(s). If your employee refuses to receive his or her W2 electronically, please contact us at info@nestpayroll.com. 

1.6 Electronic Disclosures, Notices and Updates We may provide disclosures, updates and notices required by law and other information about your Account to you electronically, by posting it on our website, texting to your phone number listed in your account, pushing notifications through the Services, or by emailing it to the email address listed in your Account. Electronic disclosures and notices have the same meaning and effect as if Nest Payroll had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent, you may need to terminate your Nest Payroll Account.

You give Nest Payroll permission to obtain, verify, and record information that identifies the individual who opens an account or accesses the Service, as well as the Employees of the Employer. Nest Payroll may ask for your name, address, date of birth, Employer Identification Number and/or State Employer Identification Number for Household Employers if you already have one, social security numbers and other information that will allow us to identify you or your employee for the purposes of payroll. You consent to and authorize Nest Payroll at any time to verify social security numbers, and to report adverse credit information about you, to others, including the Internal Revenue Service and any applicable state taxing authorities. You also hereby represent, understand and expressly agree that Nest Payroll does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included during any verification process. Nest Payroll will not communicate the results to any third party, though we reserve the right to do so for law enforcement or other safety-related purposes.

Nest Payroll may, at its discretion, decline to offer the Service to you for any reason, including in the event that the enrollment process is not satisfactorily completed, not accurate, not true, or incomplete information is provided, or failure to comply with the account registration requirements occurs.

2     Your Responsibilities and Duties as a Household Employer. 

2.1 You must input all required information in the Services registration. The information you provide to us must be accurate and complete, otherwise the tax calculations or any reports may be inaccurate, and the Nest Payroll service may not perform accurately. You are solely responsible for the data that you enter, including accurate social security numbers, spelling of names, any current Employer Identification Numbers, the hours you input for work performed by your household employee(s) including overtime, and any other data we require from you. It is your responsibility to verify that all paychecks, paystubs and calculations are accurate during the review process that is provided to you, before you approve a paycheck.  Nest Payroll will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information you supply. 

THE SERVICE WILL HELP YOU FILE AND MAKE PAYMENTS IN A TIMELY MANNER. HOWEVER, IT IS YOUR SOLE RESPONSIBILITY TO TAKE ACTION IN A TAX COMPLIANT MANNER WITH THE DUTIES OF A HOUSEHOLD EMPLOYER.

For more information, please reference the IRS Publication 926, as well as your state tax laws for household employers. In form 926, the IRS states “Outsourcing payroll duties. Generally, as an employer, you're responsible to ensure that tax returns are filed and deposits and payments are made, even if you contract with a third party to perform these acts. You remain responsible if the third party fails to perform any required action. Before you choose to outsource any of your payroll and related tax duties (that is, withholding, reporting, and paying over social security, Medicare, FUTA, and income taxes) to a third-party payer, such as a payroll service provider or reporting agent, go to IRS.gov/OutsourcingPayrollDuties for helpful information on this topic. For more information on the different types of third-party payer arrangements, see section 16 in Pub. 15. It is your responsibility to keep any payroll, tax or other records you may need for reference, even though we may have information about the records and payments in our files.”

2.2  In general, we calculate your payroll taxes based on the assumption that the wages you pay to household employees are subject to all payroll taxes applicable to your geographical area. For example, per the IRS Publication 926, we assume you will pay cash wages of $2,100 or more in this calendar year to any one household employee, OR you will pay total cash wages of $1,000 or more in any calendar quarter to household employees (2019). The Service assumes you are subject to pay Social Security and Medicare taxes, and federal unemployment tax as well as applicable state taxes. 

2.3  You are responsible for maintaining the confidentiality of your User ID, password, and any applicable challenge questions (Security Devices). If you grant access to your account to one or more additional users, you are responsible for ensuring that they maintain the confidentiality of their respective User IDs, passwords, and challenge questions, and comply with all terms and conditions of this Agreement. You are responsible for (i) all actions taken on the Services Website or application using your Security Devices, whether or not authorized by you, and (ii) any transactions resulting from your failure to maintain the confidentiality of the Security Devices. You agree that your User ID and password have the same effect as your written signature authorizing actions on the Services application. You agree to notify us immediately if you become aware of any unauthorized use of your Security Devices (notify us at info@nestpayroll.com). You acknowledge and agree that the Security Devices are intended to confirm authenticity of your instructions and not to detect errors in the contents or transmission of your instructions, and that the Security Devices are a commercially reasonable means of authentication.

3     Fees

You agree to pay us in accordance with our terms of sale. 

3.1 Certain aspects of the Services may be provided for a fee or other charge. If you elect to use paid aspects of the Services, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges. Nest Payroll may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. You authorize Nest Payroll, or a designated third-party provider, to charge your credit card for all fees and charges incurred in connection with your use of the Services, including Nest Payroll's fees and other third party fees. 

Nest Payroll may offer Services to be paid for on a recurring basis (“Subscription Services”) or on an as-used basis. Nest Payroll has the right to change, delete, discontinue or impose conditions on Paid Services or any feature or aspect of a Paid Service. Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes as set forth in your Account settings or as otherwise agreed in writing (“Subscription Fee”). Services that are on an as-used basis may subject you to fees charged per usage and/or terms. By using as-used basis Services, you agree to pay the fees and any taxes incurred at the time of usage.

Paid Service Fees may be paid by debit card or credit card, or linked to your bank account or through a third-party provider, such as Stripe https://stripe.com/us/connect-account/legal. If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your debit, credit card or your linked bank account.

If you register with us, you may cancel your account at any time; however, there are no refunds for cancellation. In the event that Nest Payroll suspends or terminates your account or this terms of service, you understand and agree that you shall receive no refund or exchange for any Nest Payroll Content, any unused time or service on a subscription, any subscription fees for any portion of the Services, any content or data associated with your account, or for anything else. Nest Payroll charges a monthly fee, which is paid in advance on or about the first of every month. If you cancel the service after the first day of the month, you will not be refunded for that month.

You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. 

3.2 If we cannot collect fees due to credit limits on your credit card or any other reason, or if you sign up for electronic payment options and we cannot collect amounts due because of insufficient funds in your account or any other reason, you must pay the amount due immediately upon demand, plus any exceptions processing fees, plus any bank fees or charges, plus interest at the lesser of 18% annually or the maximum allowed by law, plus attorney's fees and other costs of collection as allowed by law. In addition, we may terminate this Agreement, discontinue the Service (either entirely, or only with respect to electronic payment options, in our sole discretion) and avail ourselves of any other available remedy. We may make appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.

4     Customer Support We provide reference materials, frequently asked questions, and in-app access to email customer support to help you set up your household payroll correctly and run your household payroll, according to our standard practices. If you have questions, please email info@nestpayroll.com.

5     User Accounts and Account Security If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account. You are fully responsible for all activity that occurs under your Account, including for any actions taken by persons to whom you have granted access to the Account. 

6     Privacy Please refer to our Privacy Policy (https://nestpayroll.com/privacy-policy) for information about how we collect, use and disclose information about you.

7     Prohibited Conduct and Content

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:

▪      Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

▪      Use or attempt to use another user’s account without authorization from that user and Nest Payroll;

▪      Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

▪      Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

▪      Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;

▪      Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;

▪      Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

▪      Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;

▪      Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;

▪      May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;

▪      Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;

▪      Impersonates, or misrepresents your affiliation with, any person or entity;

▪      Contains any unsolicited promotions, political campaigning, advertising or solicitations;

▪      Contains any private or personal information of a third party without such third party’s consent;

▪      Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or

▪      Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Nest Payroll or others to any harm or liability of any type.

In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.

8       LIMITED LICENSE; COPYMARK AND TRADEMARK

Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Nest Payroll Content”) are owned by or licensed to Nest Payroll and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Nest Payroll and our licensors reserve all rights in and to our Services and the Nest Payroll Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Nest Payroll Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Nest Payroll Content; (b) copy, reproduce, distribute, publicly perform or publicly display Nest Payroll Content, except as expressly permitted by us or our licensors; (c) modify the Nest Payroll Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Nest Payroll Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Nest Payroll Content other than for their intended purposes. Any use of our Services or Nest Payroll Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

9       FEEDBACK

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Nest Payroll or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of Nest Payroll. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

10       COPYRIGHT COMPLAINTS

We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Nest Payroll at info@nestpayroll.com.

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Nest Payroll for certain costs and damages.

11     INDEMNIFICATION

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Nest Payroll, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Nest Payroll Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify Nest Payroll Parties of any third party Claims, cooperate with Nest Payroll Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees).  You also agree that the Nest Payroll Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Nest Payroll or the other Nest Payroll Parties.

12    DISCLAIMERS

We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.

YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE PAYROLL SERVICE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE PAYROLL SERVICE AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE PAYROLL SERVICE. NEST PAYROLL AND ITS SUPPLIERS DISCLAIM ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE PAYROLL SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PAYROLL SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.

WITHOUT LIMITING THE FOREGOING, NEST PAYROLL AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.

 The Services may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Nest Payroll. Nest Payroll does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the Services, you do so at your own risk, and you understand that this terms of service and Nest Payroll’s Privacy Policy do not apply to your use of such sites. You expressly relieve Nest Payroll from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Nest Payroll shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Nest Payroll does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Nest Payroll will make payroll calculations based on your data input as accurate and precise as possible, it is your responsibility to check for accuracy. Nest Payroll is not your accountant, tax advisor, lawyer or advisor. It is your responsibility to check the accuracy of the paychecks, pay your employee(s), and ensure your taxes have been filed on time to the federal government and to your state, and make your tax payments in full when due. It is recommended that you consult a tax professional to verify your personal tax situation. 

You provide us your data at your own risk and consent to have it processed in the United States

We care about the privacy of our Users. You can view our privacy policy at https://nestpayroll.com/privacy-policy. You consent to have your personal data collected, used, transferred to and processed in the United States. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You agree that you provide your personal information and other data provided to Nest Payroll at your own risk.

13    LIMITATION OF LIABILITY

Nest Payroll and the other Nest Payroll Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Nest Payroll or the other Nest Payroll Parties have been advised of the possibility of such damages.

The total liability of Nest Payroll and the other Nest Payroll Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Nest Payroll or the other Nest Payroll Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

14     RELEASE

To the fullest extent permitted by applicable law, you release Nest Payroll and the other Nest Payroll Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

15     TRANSFER AND PROCESSING DATA

By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.

16    DISPUTE RESOLUTION; BINDING ARBITRATION

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Nest Payroll and limits the manner in which you can seek relief from us.

Legal actions and proceedings are governed under California law and heard in California courts. 

You agree that: (i) the Services shall be deemed solely based in California; and (ii) the Services shall be deemed passive that do not give rise to personal jurisdiction over Nest Payroll, either specific or general, in jurisdictions other than California. You expressly agree that your rights and obligations, this terms of service and any disputes shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law rules The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and Nest Payroll that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California, unless submitted to arbitration as set forth in the following paragraph.

Limited arbitration rights

You and Nest Payroll agree that any dispute arising out of or related to these Terms or our Services is personal to you and Nest Payroll and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and Nest Payroll waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in [Santa Clara County, CA] in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS")[i], which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.  

You and Nest Payroll agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law.  As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Nest Payroll agree that for any arbitration you initiate, you will pay the filing fee and Nest Payroll will pay the remaining JAMS fees and costs.  For any arbitration initiated by Nest Payroll, Nest Payroll will pay all JAMS fees and costs.  You and Nest Payroll agree that the state or federal courts of the State of California and the United States sitting in Santa Clara, CA have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.  

ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND NEST PAYROLL WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.  

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by sending an email to info@nestpayroll.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 16. 

17     GOVERNING LAW AND VENUE

These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara, CA.

 18    CHANGES TO THESE TERMS

We may amend the General Terms, any Additional Terms, or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website, app or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute that arose before the changes will be governed by the General Terms, Additional Terms or Policies in place when the Dispute arose.

Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes.  If you do not agree to the amended Terms, you must stop accessing and using our Services.

19    Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

20    Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

21    Miscellaneous

These Terms constitute the entire agreement between you and Nest Payroll relating to your access to and use of our Services. The failure of Nest Payroll to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.