Terms of use agreement

PLEASE READ THIS TERMS OF USE AGREEMENT (THE "TERMS OF USE," THE "TERMS," OR THE "AGREEMENT") CAREFULLY. THIS WEBSITE AND ITS SUBDOMAINS (COLLECTIVELY, THE "WEBSITE"), THE INFORMATION ON THE WEBSITE, AND THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A "SERVICE" AND COLLECTIVELY, THE "SERVICES"), ARE CONTROLLED BY NUON ("NUON"). THESE TERMS OF USE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE "AGREEMENT"), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, BROWSING THE WEBSITE, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NUON, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR SUCH LEGAL ENTITY, AS APPLICABLE. IF YOU, OR IF APPLICABLE, SUCH LEGAL ENTITY, DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU, AND IF APPLICABLE, SUCH LEGAL ENTITY, MAY NOT ACCESS OR USE ANY OF THE SERVICES.

PLEASE BE AWARE THAT SECTION 1.5 (NUON COMMUNICATIONS) OF THE AGREEMENT BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

PLEASE NOTE THAT The Agreement IS subject to change by NUON in its sole discretion at any time. When changes are made, NUON will make a copy of the UPDATED Agreement available at the Website and update the "Last Updated Date" at the top of these Terms of Use. If you do not agree to THE UPDATED AGREEMENT, you MUST stop using ALL Services UPON THE EFFECTIVE DATE OF THE UPDATED AGREEMENT. Otherwise, your continued use of ANY OF the Services after the effective date OF THE UPDATED AGREEMENT constitutes your acceptance of THE UPDATED AGREEMENT. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT. YOU AGREE THAT NUON'S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED AGREEMENT.

1. 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.

1.1 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.

1.2 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.

1.3 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; (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.

1.4 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 ("SLA"). Use of Realtime Support is governed by this Agreement.

1.5 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.

2. REGISTRATION

2.1 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").

2.2 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"). 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.

2.3 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.

3. OWNERSHIP

3.1 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.

3.2 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 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.

4. FEES AND PURCHASE TERMS

4.1 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.

4.2 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.

4.3 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.

5. 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.

6. DISCLAIMER OF WARRANTIES AND CONDITIONS

6.1 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.

6.2 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.

6.3 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.

7. LIMITATION OF LIABILITY

7.1 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.

7.2 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.

7.3 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.

8. TERM AND TERMINATION

8.1 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.

8.2 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 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, Nuon has the right to, immediately and without notice, suspend or terminate any Services provided to you.

8.3 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.

8.4 Effect of Termination

Termination of any Service includes removal of access to such Service and barring of further use of the Service. 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.

9. 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. 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.

10. THIRD-PARTY SERVICES PROVIDER

Nuon uses Stripe, Inc. and its affiliates as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a "Payment Processor"). By buying or selling on any Nuon Property, you agree to be bound by Stripe's Privacy Policy and its Terms of Service and hereby consent and authorize the Nuon and Stripe to share any information and payment instructions you provide with one or more Payment Processor(s) to the minimum extent required to complete your transactions.

11. GENERAL PROVISIONS

11.1 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.

11.2 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.

11.3 Electronic Communications

The communications between you and Nuon may take place via electronic means. 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.

11.4 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.

11.5 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.

11.6 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.

11.7 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. 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.

11.8 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.

11.9 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.