- Term and Termination
1.1 This Agreement will remain in effect until all subscriptions granted in accordance with this Agreement have expired or this Agreement is terminated by you or Nicoka (the "Term"). If you elect to use the Service for a free trial period, if any, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
1.2 User subscriptions purchased by you commence on the start date specified upon payment and continue for the subscription term selected at the time of payment. You are solely responsible for the proper cancellation of your account. You may cancel your account at any time by emailing contact (@) nicoka.com.
1.3 Either party may terminate this Agreement at any time in the event of a material breach that is not cured within 30 days of written notice by the non-breaching party (except in the case of your nonpayment (including in the event your credit card cannot be charged), in which event Nicoka may suspend or terminate your access to the Service upon any such nonpayment). Nicoka will refund to you any prepaid fees covering any period of the term remaining after the date of termination for all subscriptions. However, no refund will be granted for the then-current month.
1.4 Unless your account is terminated due to your nonpayment, you will continue to have the ability to access and download the information provided, inputted or uploaded to the Service by you or on your behalf ("Data") for 30 days after the effective date of expiration or termination. After such 30-day period or if your account is terminated due to your nonpayment, Nicoka shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited, delete all of your Data in Nicoka’s systems or otherwise in its possession or under its control.
1.5 Nicoka may downgrade, terminate or suspend your access to the Service without prior notice and without liability if such action is based on (a) Nicoka’s good faith belief that you have violated any provision of this Agreement (including a failure to make any payment when due), or (b) you do not log in to or otherwise use the Service for a period of 180 days of more if you have a paid account and for a period of 60 days or more if you have a free account.
- Modification of this Agreement
2.1 The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. Nicoka reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service, or to modify, add, or remove portions of this Agreement at any time by making such modified Agreement available to you. The revised Agreement will be effective immediately upon being made available to you, except that in the event any such modification materially alters your rights hereunder, Nicoka will attempt to notify you directly by sending a message to the email address that you provided to us. Your use of the Service after modifications to this Agreement become effective constitutes your binding acceptance of such changes. In such case of a material modification, you will be required to affirmatively agree to such modified Agreement. You can also review the most current version of this Agreement at any time at: http://www.nicoka.com/terms. If you are dissatisfied with the terms of the Agreement or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
- Usage Rights; Restrictions; Support
3.1 During the Term, Nicoka grants you a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (“Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Nicoka to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
- use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Nicoka;
- use the Service for any fraudulent or inappropriate purpose;
- attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
- duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Nicoka;
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service; or
- rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
3.2 Nicoka shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which Nicoka shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Nicoka’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with Applicable Law.
3.3 Nicoka shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. Nicoka shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters. In the event we are compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, if permitted by Applicable Law.
3.4 If you integrate with Nicoka using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period, as determined by Nicoka. Nicoka reserves the right to throttle your API connections, or suspend or terminate your Nicoka account.
- Payment Terms
4.1 Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). You may change your subscription term at any time by contacting us using one of the methods set forth in the Contact Information section below. Your credit card will be charged once a month for monthly subscriptions and once a year (upon the anniversary of your subscription date) for annual subscriptions. Nicoka will email you a receipt when your card has been charged. If your card cannot be charged, your access to Services may be suspended and you will need to update your card information in order to resume use. There will be no refunds or credits for partial months of service, upgrade/downgrade accounts, or for months unused with an open account.
4.2 Yearly subscription pricing requires a one-year minimum commitment. If you cancel your subscription, or your subscription is suspended for nonpayment, before the end of the one-year commitment period, you will no longer qualify for yearly subscription pricing and you will be charged the difference between the monthly and yearly commitment pricing for the number of months your subscription was active.
4.3 All fees are exclusive of all taxes or duties imposed by governing authorities. You alone are responsible for payment of all such taxes or duties.
4.4 Nicoka may at any time, upon notice of at least 90 days or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your one-year subscription period will come into effect for any subsequent one-year subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
- Intellectual Property Rights
5.1 As between the parties, Nicoka owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. Nicoka may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.
5.2 You retain all right, title and interest to your Data. Nicoka has no right, title or interest in any personally identifiable information related to your Data.
5.3 You have no obligation to give Nicoka any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent Nicoka receives any Feedback from you, Nicoka may use and include any such Feedback to improve the Services or for any other purpose. Accordingly, if you provides Feedback, you agrees that Nicoka shall own all such Feedback and Nicoka and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to Nicoka.
5.4 From time to time during the Term, Nicoka may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”), in each case pursuant to a statement of work executed by you and Nicoka. Nicoka shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. Nicoka may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
6.1 During the Term, Nicoka may disclose your name as a customer of Nicoka and/or subscriber of the Service, and you hereby grant Nicoka the right to display your name and logo in its marketing materials and on Nicoka’s public website, in each case in accordance with any branding guidelines you may provide to Nicoka.
- Warranties and Liability
7.1 Nicoka represents, warrants, and covenants as follows: (a) Nicoka possesses all rights necessary to grant you the rights set forth in this Agreement; (b) Nicoka uses commercially reasonable measures to screen for time-bombs, viruses, technically limiting devices, and/or technically limiting code; (c) the Software will perform substantially in accordance with the technical requirements documents that are generally provided by Nicoka in connection with the Software (“Documentation”); and (d) any professional services performed for you by Nicoka will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, Nicoka HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. Nicoka DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
7.3 EXCEPT FOR EITHER PARTY’S BREACH OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY Nicoka FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE.
- Security Breach.
8.1 External Breach: In the event of a security breach by anyone other than your employee, contractor or agent, Nicoka will: (a) initiate remedial actions that are consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the nature and scope of remedial actions Nicoka will undertake, and the timeline within which Nicoka expects to remedy the breach.
8.2 Internal Breach: In the event of a security breach by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and shall notify immediately Nicoka of the breach and steps you will take to remedy the breach.
9.1 You agree to indemnify, defend and hold harmless Nicoka, and its affiliates, officers, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or connected with your use of the Software and/or Service in breach of this Agreement.
9.2 Nicoka agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Nicoka have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Nicoka, and (b) any content, information or data provided by you, your end users, or other third parties.
9.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnified party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim; grant such sole control; and/or provide such cooperation, information and assistance shall not relieve the indemnifying party of its obligations under this Article 9, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
10.1 If you use the iOS version of the Service, you acknowledge the statements set forth in this Section. This Agreement is between you and Nicoka only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the functionality or content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty and if you purchased a subscription to the Service through Apple, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by Applicable Law, Apple has no other warranty obligation whatsoever with respect to the Service. As between Apple and Nicoka, Nicoka is responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty, subject to the terms of this Agreement. Apple is not responsible for addressing any claims brought by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement
10.2 If you connect your google account to synchronize your emails or your agenda with Nicoka, be aware that Nicoka use of information received from Gmail APIs will adhere to Google's Limited Use Requirements.
10.3 This Agreement encompass the entire agreement between you and Nicoka with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by an instrument executed by both parties. The failure of Nicoka to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties, and shall not affect the validity and enforceability of any remaining provisions. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement. As used herein, the words “including,” “included” and “includes” mean inclusion without limitation. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Nicoka’s prior written consent. If you have any questions regarding this Agreement please contact Nicoka at tos (@) Nicoka dot com.
- Contact Information
13.1 If you have any questions about the Service or this Agreement, you may call us at +33156331543 email us at email@example.com or write to us at:
56 rue de Londres,