USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Nuon, your right to use any and all Services is subject to the Agreement.
- Nuon Software. Use of any software and associated documentation that is made available via the Services (“Software”) is governed by the Agreement. Subject to your compliance with the Agreement, Nuon grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Services solely for your internal business purposes, subject to any limitations set forth in this Agreement and the terms of your subscription. Some Software may be offered under open source licenses that we will make available to you upon your request. There may be provisions in the open source licenses that expressly override some of these terms.
- Updates. You understand that the Services are evolving. As a result, Nuon may require you to accept updates to the Services that you have installed on your computer. You acknowledge and agree that Nuon may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
- Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Software or the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Nuon’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 the Software or the 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 any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Software or the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Nuon, its suppliers and service providers reserve all rights not granted in the Agreement.
- Support. As a component of the Services, subject to your payment of applicable fees, Nuon will provide you the support services (“Realtime Support”) for which fees have been paid in accordance with our Service Level Addendum available at: [INSERT URL] (“SLA”). Use of Realtime Support is governed by this Agreement.
- Nuon Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Nuon and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO [____] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO [___] FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES.
- Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Nuon through the Services (“Account”).
- Access Through a Data Hosting Provider. To access certain features of the Software, you must have an account in good standing on a data hosting provider such as Amazon Web Services or Google Cloud Platform (each, a “Data Hosting Provider,” and each account on such platform, a “Data Hosting Provider Account”). To access these features, you must link your Account with your Data Hosting Provider Account by allowing Nuon to access your Data Hosting Provider Account, as is permitted under the applicable terms and conditions that govern your Data Hosting Provider Account. You acknowledge that each Data Hosting Provider Account, including access to and use thereof and uptimes related thereto, is solely determined by Data Hosting Provider. Nuon will have no liability for any unavailability of the Data Hosting Provider Account, or Data Hosting Provider’s decision to discontinue, suspend, or terminate a Data Hosting Provider Account.
- Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Nuon Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Nuon immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Nuon has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Nuon has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per Data Hosting Provider at any given time. You agree not to create an Account or use the Services if you have been previously removed by Nuon, or if you have been previously banned from any of the Services.
- Services. You agree that Nuon and its suppliers own all rights, title and interest in the Software and Services. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Software or Services.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nuon through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Nuon 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 Nuon a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive 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, in connection with the operation and maintenance of the Services and/or Nuon’s business.
FEES AND PURCHASE TERMS.
- Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You must provide Nuon with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (each, a “Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Nuon with your credit card number and associated payment information, you agree that Nuon is authorized to immediately invoice your Account for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Nuon of any change in your billing address or the credit card used for payment hereunder. Nuon reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
- Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your payment package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Nuon for the Services until Nuon accepts your order by a confirmatory e-mail or other appropriate means of communication.
Annual Subscriptions. Payment of any annual Service Subscription Fee shall be paid prior to the Service Commencement Date.
Monthly Payments. Unless you have subscribed for an annual subscription, payment for the Services shall be due monthly.
- Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Nuon to have the charges reversed.
INDEMNIFICATION. You agree to indemnify and hold Nuon, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Nuon Party” and collectively, the “Nuon Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of any Service in violation of the Agreement; (b) your violation of any rights of another party, including your Data Hosting Provider; or (c) your violation of any applicable laws, rules or regulations. Nuon 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 agree to fully cooperate with Nuon in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
DISCLAIMER OF WARRANTIES AND CONDITIONS. You agree to indemnify and hold Nuon, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Nuon Party” and collectively, the “Nuon Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of any Service in violation of the Agreement; (b) your violation of any rights of another party, including your Data Hosting Provider; or (c) your violation of any applicable laws, rules or regulations. Nuon 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 agree to fully cooperate with Nuon in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NUON EXPRESSLY DISCLAIMS 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 AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
NUON MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NUON OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, NUON may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at NUON’s sole discretion. The provisions of this section apply with full force to such features or tools.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NUON PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NUON PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Nuon to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL NUON PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT NUON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A NUON PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A NUON PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A NUON PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, NUON PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF $50 OR THE TOTAL AMOUNT PAID TO NUON by you during the twelve (12)-month period prior to the act, omission or occurrence giving rise to such liability.
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NUON AND YOU.
TERM AND TERMINATION.
- Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
- Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
- Termination of Services by NUON. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Nuon will refund your Service Subscription Fee, if already paid pursuant to Section 4.1 (Payment) or 4.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Nuon is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Nuon has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Nuon’s sole discretion and that Nuon shall not be liable to you or any third party for any termination of your Account.
- Termination of Services by You. If you want to terminate the Services provided by Nuon, you may do so by (a) notifying Nuon at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing or via e-mail, to Nuon’s address set forth below.
- Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. Nuon will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Nuon community, is discontinued by Nuon due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Nuon community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Nuon reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
INTERNATIONAL USERS. The 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 Nuon intends to announce such Services or Content in your country. The Services are controlled and offered by Nuon from its facilities in the United States of America. Nuon makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- Governing Law. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES 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 ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Nuon agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
- Electronic Communications. The communications between you and Nuon may take place via electronic means, whether you visit the Services or send Nuon e-mails, or whether Nuon posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Nuon in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nuon provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
- Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nuon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Nuon 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, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
- Notice. Where Nuon requires that you provide an e-mail address, you are responsible for providing Nuon with your most current e-mail address. In the event that the last e-mail address you provided to Nuon is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Nuon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nuon at the following address: [______] or at the following e-mail address: [______]. Such notice shall be deemed given when received by Nuon by letter delivered by nationally recognized overnight delivery service, first class postage prepaid mail at the above address, or by e-mail with a delivery confirmation.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of the 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.
- Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the 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 the 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. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Nuon are subject to the export control laws and regulations of the United States.
- 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 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Entire Agreement. The Agreement is 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.
SERVICE LEVEL ADDENDUM.
Realtime Support. Nuon Realtime Support Plan provides Nuon users who have paid the applicable fee (“Nuon Named Users”) live technical and support services and is available via a shared Slack or Teams channel twenty-four (24) hours a day, seven (7) days per week. Nuon will send Nuon Named Users a link to access the channel within twenty-four (24) hours of receipt of the applicable fee.Application Migrations. The Realtime Support Plan includes assistance with application migrations, twenty-four (24) hours a day, seven (7) days per week.Office Hours. The Realtime Support Plan includes office hours.Customer Support. Customer Support is available to Nuon Named Users for support related to the use of the Software, including help with troubleshooting existing configurations, basic usability assistance, and break/fix support.Targeted Response Time**.** Nuon will use commercially responsible efforts to respond to each incident within two (2) hours.Nuon Named Users’ Obligations for Support. When contacting Nuon Realtime Support, the Nuon Named User, as applicable, will be responsible for (and must be capable of) providing Nuon with all information and access to Nuon Named User’s resources as reasonably required in order for Nuon to provide the requested technical assistance.