Last updated: May 2024
Reference is made to your subscription in the form of a Play Pass Card to access certain services (e.g. catalog of games) on your Nex Playground with NEX Team Inc., a Delaware corporation (“Nex”). This agreement (this “Agreement”) is entered into by and between Nex and you in connection with your purchase and/ or use of the Play Pass Card.
Note that your use and/ or access to Nex’s hardware products (e.g. Nex Playground) and Nex’s software products/ services (e.g. games available on Nex Playground) is subject to your acceptance of the respective terms of use of such hardware and software. A copy of such terms is available at https://nex.fun/npgtou and https://nex.fun/terms-of-use respectively.
1. Play Pass allows you access to a select catalog of games on your Nex Playground (see https://playground.nex.inc/pages/games for details) for the duration stated on the Play Pass Card starting from the date of your activation of Play Pass. You will find a unique activation code on the Play Pass Card. To access the games covered by Play Pass, you will have to first activate Play Pass on your Nex Playground within 1 year of your purchase of the Play Pass Card (subject to applicable law that may allow for longer duration) or the activation code may become invalid. One (1) activation code is valid to activate Play Pass on one (1) Nex Playground only. No refund will be available. Internet connection is required to activate Play Pass and to download and access all features of the games. Game number, titles, features, and content may vary over time and by region. System software updates may be required from time to time.
2. Unless you acquired your access to a game other than through Play Pass (e.g. you purchased the game separately), your rights to access to the games covered by the Play Pass will be terminated and your progress and scores in such games may be deleted from our cloud storage, if stored on our cloud storage, upon the expiration/ termination of Play Pass. Such game progress and scores may or may not be able to be restored upon any subsequent re-activation of Play Pass.
3. The Play Pass Card cannot be redeemed for cash or credit and cannot be returned or resold unless required by law. Nex is not responsible for any loss or damage resulting from lost, stolen or fraudulently obtained cards or use without permission.
4. IN NO EVENT SHALL NEX (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PLAY PASS OR THE PLAY PASS CARD. FURTHER, UNDER NO CIRCUMSTANCES WILL NEX BE LIABLE TO YOU (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) FOR MORE THAN THE AMOUNT YOU HAVE PAID TO US FOR THE PLAY PASS IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID US ANY SUCH AMOUNTS IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE PLAY PASS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT OUR LICENSORS OR OTHER SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THE PLAY PASS OR THIS AGREEMENT.
Some jurisdictions do not allow the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitation or exclusion may not apply to you. To the extent that we may not, as a matter of applicable law, limit our liability as set forth herein, our liability shall be the minimum permitted under such applicable law.
5. Please read this Arbitration Agreement carefully. It is part of your contract with Nex and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Nex that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Nex, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Nex should be sent to: NEX Team Inc., 333 W San Carlos St., Suite 600, San Jose, CA 95110. After the Notice is received, you and Nex may attempt to resolve the claim or dispute informally. If you and Nex do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA"), an established alternative dispute resolution provider (“ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules") governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Nex made to you prior to the initiation of arbitration, Nex will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney's fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Nex pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Nex, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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 Nex.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Nex in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nex.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Nex may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California, for such purpose.
6. This Agreement is subject to occasional revision and its latest version (with the revision date stated) will be made available at https://nex.fun/playpass-card-terms . Any changes to this Agreement will be effective upon public posting of such revisions and without notice to you. We will, however, post a notice of any changes to this Agreement on our web site after the changes are effective. You are responsible for regularly reviewing our web site for changes and notice of any changes. These changes will be effective immediately for new users of the Play Pass Card.
7. This Agreement and any action related thereto or to the Play Pass Card will be governed by the laws of the State of California without regard to its conflict of laws provisions.
8. For any enquiries/ issues related to the Play Pass Card and/ or this Agreement, you may contact us by writing to us at the following address:
NEX Team Inc.
333 W San Carlos St., Suite 600
San Jose, CA 95110
Email: playground-help@nex.inc