Terms and Conditions of use
This is the fun stuff.
Nove Self-Serve Subscription Agreement
Effective Sept 13, 2018
THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS, AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST NOVE.
By clicking on the “Create Account” button (or any similar button) that is presented to you at the time of sign-up or by using or accessing the Service, you indicate your assent to be bound by this Agreement. Nove may modify this Agreement from time to time, subject to the terms in Section 14 (Changes to this Agreement) below.
If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Nove that you have the authority to bind such Entity to this Agreement, in which case the terms “you,” “your” or a related capitalized term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not use the Service.
GENERAL TERMS AND CONDITIONS
This Agreement governs Nove’s internet-based solution, including this website. Section 2 (Software) applies specifically to Software (including Nove’s application, and email services). Unless otherwise specified, all other Sections of this Agreement apply to both the website and the Software (collectively, the “Service”).
2.1 License Grant
Subject to the terms and conditions of this Agreement, Nove grants you a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except to Affiliates) license to install and use the Software during your use of the applicable Cloud Services in accordance with this Agreement and any Nove documentation (“License”). Your License will end upon the earlier of the termination of your use of the Software or the termination of this Agreement. Some Software may contain open source or third party software, which may have additional terms and restrictions regarding such software’s use.
You will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, you may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of your own or third party software with the Software, and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) you have first requested such information from us and we fail to make such information available (for a fee or otherwise) under reasonable terms and conditions.
2.3 Software Modifications
Subject to the terms and conditions of this Agreement, for any elements of the Software provided to you in source code form you may modify such source code solely to the extent necessary to support your permitted use of the Software (collectively, “Modifications”). Unless expressly stated otherwise, you may not distribute your Modifications to any third party. Nove has no support, warranty, indemnification or other obligation or liability with respect to your Modifications or their combination, interaction or use with our Cloud Services. You agree to indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Modifications.
3.1 Recurring Billing
In order to access those Services for which we require a subscription fee (“Paid Services”) you will be required to provide Nove with your credit card information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly or annual basis, or as otherwise applicable for the subscription fees associated the Paid Services that you sign up for. Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. Nove will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.
3.2 Price Changes
We reserve the right to change the subscription fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
3.3 No Refunds
SUBSCRIPTION FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
4. Beta Services
From time to time, we may make early stage or non-production Software (“Beta Services”) available to you at no charge. You may access these Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. Nove may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Notwithstanding Section 10, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
We implement security procedures to help protect your Data from security threats. However, you understand that your use of the Service necessarily involves transmission of Your Information over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Information that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6. Termination of Use; Discontinuation and Modification of the Service
You will lose your license to use the Service if you violate any provision of this Agreement. Nove’s policy is to investigate violations of this Agreement. We may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.
7. Ownership; Proprietary Rights
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Nove are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Nove or our third-party licensors. Except as expressly authorized by Nove you may not make use of the Materials. Nove reserves all rights to the Materials not granted expressly in this Agreement.
8.1 By Nove
Nove will defend you against any third party claim brought against you, to the extent that such claim is based on an allegation that a Paid Service, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a "Claim"), and we will indemnify you against any damages and costs (including reasonable legal fees) finally awarded by a court of competent jurisdiction attributable to such a Claim or agreed to settlement by Nove. If any portion of a Paid Service becomes, or in Nove’s opinion is likely to become, the subject of an infringement claim, Nove may, at Nove’s option: (a) procure the right for you to continue using the Paid Service; (b) replace the Paid Service with non-infringing services which do not materially impair the functionality of the Paid Service; (c) modify the Paid Service so that it becomes non-infringing; or (d) terminate the Paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the Paid Service. Nove will have no obligation under this Section 8 or otherwise with respect to any infringement claim based upon: (w) any use of a Paid Service not in accordance with this Agreement or the Documentation; any use of a Paid Service in combination with third party products or services not supplied by Nove; or (z) any modification of a Paid Service by any person other than Nove or its authorized agents. THIS SUBSECTION SETS FORTH NOVE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
8.2 By You
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Nove and its officers, directors, employees, consultants, Affiliates, subsidiaries and agents (collectively, the "Nove Entities") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
9. Disclaimers; No Warranties
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE NOVE ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE NOVE ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE NOVE ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE NOVE ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED2 INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. Limitation of Liability
IN NO EVENT WILL THE NOVE ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE NOVE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE NOVE ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO NOVE TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. Governing Law
This Agreement will be governed by the laws of the State of Washington without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Nove agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within King County, Washington for the purpose of litigating all such disputes.
12. Changes to this Agreement
Nove reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
The authoritative version of Nove’s Self-Serve Subscription Agreement is available at: www.nove.io/subscription. While translations of the Subscription Agreement may be provided in multiple languages for your convenience, the English language version hosted at the link above is binding for all users of the Service.
This Agreement constitutes the entire and exclusive understanding and agreement between you and Nove regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Subscription Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2.5.1 and Sections 6 through 16.
15. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Nove in the most expedient and cost effective manner, you and Nove agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NOVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding Subsection 15.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Nove will be governed by the Commercial Arbitration Rules and Mediation Procedures ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
15.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Nove's address for Notice is: Seattle Wa 98106. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Nove may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in Seattle, WA provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Nove for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No Class Actions
YOU AND NOVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Nove agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that Nove makes any future change to this arbitration provision (other than a change to Nove's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Nove's address for Notice, in which case your account with Nove will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
If Subsection 15.1 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 10 will govern any action arising out of or related to this Agreement.
16. Consent to Electronic Communications
17. Contact Information
The Service is offered by Nove, Inc., located in Seattle Wa 98106. You may contact us by emailing us at [email protected]