Effective Date: March 16, 2020
1.0 DEFINED TERMS
"Access Information" : user name, password, and other log-in information for access to the NiX Solution.
"Content" : text, images, graphics, photos, video, audio, and any other content, information or data created, transmitted, derived from or accessible via use of the NiX Solution. The term "your Content" means Content originating or derived from your use of or that you input into the NiX Solution and/or Other Applications.
"NiX Service" : the cloud data service we provide, as may be updated or modified from time-to-time.
“NiX Software” : the software application we may make available to you, as may be updated or modified from time-to-time.
"NiX Solution" : NiX Service, NiX Software, Support Services, and the features, dashboards, functionality, websites, applications, and services that we may make available to you.
"Other Applications" : online or offline software, products, services, functionality, hardware, networks and Content not developed or provided by us, including any of the foregoing that is owned or licensed by you or other party, or that is processed, made available, or enabled for use and display, via the NiX Solution. The term Other Applications includes without limitation (a) e-commerce, shopping and other sites, applications, and services that have signed up to use the NiX Solution; and (b) ecommerce platforms or services, including BigCommerce, WooCommerce, Shopify and Magento.
"Support Services" : any services we may perform for you or for your benefit relating to the training, setup, use and/or support of the NiX Solution, which may include helpdesk services and consulting.
"We", "us", "our" or "NiX" : NiX, Inc., organized under the laws of Delaware, United States.
"You" or "your" : the individual using the NiX Solution, or clicking "accept" or "agree" or otherwise demonstrating acceptance of the Terms, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual, and all affiliates thereto.
2.0 ACCESS TO THE NIX SOLUTION
2.1 Availability . Subject to your compliance with these Terms, we will make available to you the NiX Solution. You acknowledge that your decision to use the NiX Solution is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us. You may not use the NiX Solution if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use the NiX Solution. If you are using the NiX Solution on behalf of a company, you warrant that you have full power and authority to bind such company to these terms. The NiX Service is not intended for and should not be used by anyone under the age of eighteen.
2.2 Consent to Emails . You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the NiX Solution, including notifications related to Support Services, administrative notices and service announcements or changes.
2.3 Reservation of Rights . We retain all right, title and interest in and to the NiX Solution, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the NiX Solution are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the NiX Solution, except for your own personal use or your own business operations, and solely in accordance with these Terms.
2.4 Your Content . You retain all right, title and interest in and to your Content and all associated intellectual property rights.
3.0 USE OF THE NIX SOLUTION
3.1 Necessary Systems . Access to and ability to effectively use the NiX Solution is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of the NiX Solution requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.
3.2 Feedback . You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the NiX Solution for our business purposes, including for product licensing, marketing, support and development, without any obligation or payment to you.
3.3 Information . You hereby consent to the collection and use by or for us of non-personally identifying or anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the NiX Solution, including in order to provide the functionality of and improve the NiX Solution, for product development and marketing purposes, to protect against spam and malware, and for verifying Terms compliance.
3.4 Unauthorized Use . You will not use the NiX Solution or participate in any activities via the NiX Solution in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the NiX Solution must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use or access the NiX Solution: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.5 Notifications to You . For purposes of service messages and notices about the NiX Solution to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
3.6 Notifications to Us . If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to firstname.lastname@example.org .
4.0 SOFTWARE LICENSE
4.1 License Grant . Subject to your compliance with the obligations of these Terms, we hereby grant to you a non-sublicensable, non-transferable, and non-exclusive license to install or download and use the NiX Software on any supported computing device owned by you or in your exclusive possession, for your internal or personal use in support of your business or personal operations.
4.2 Updates . The NiX Software may update automatically. Updates may be required for your continued use of the NiX Solution. You agree to accept such updates subject to these Terms unless other terms accompany the updates. If so, those other terms will apply. We are not obligated to make any updates available and do not guarantee that we will support the version of the NiX Software that you are currently using.
4.3 Unauthorized Use . Except as set forth above, you will not (a) copy the NiX Software except as required to load on to the device described in section 4.1 above; (b) distribute to or share use of the NiX Software with any third party; (c) modify, or create derivative works or improvements of, the NiX Software; or (d) sublicense, rent, lease, or host the NiX Software. All rights not expressly granted in this section are reserved to us. You will have no right or license to the NiX Software other than as set forth in section 4.1.
4.4 Ownership . We and our licensors retain all right, title and interest in the NiX Software and associated intellectual property rights, and all copies of the NiX Software. The structure, sequence, organization and code of the NiX Software constitute our and our licensors' valuable trade secrets and copyrighted confidential information. You will preserve and not suppress our proprietary notices, markings, and branding associated with or displayed via the use of the NiX Software.
4.5 Reverse Engineering . You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the NiX Software, or work around technical protections or limitations associated with the NiX Solution, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the NiX Software; (c) such activity is confined to those parts of the NiX Software which are necessary to achieve interoperability; and (d) we have not made such information available to you under reasonable terms and conditions. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the NiX Software.
4.6 Open Source . Certain components or libraries included in or bundled with the NiX Software may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open source licenses, and as required by their terms.
4.7 Our Marks . You agree that any use of our marks, branding and logos ("Marks"), whether permitted or otherwise, will inure to the sole beneﬁt of NiX. You will not directly or indirectly: (a) ﬁle or prepare any application for registration of any Marks; (b) assert any right, title, license to, or interest in the Marks; or (c) adopt, use, ﬁle for registration, or register, in whole or in part, any trademark, service mark, trade name, logo, or domain name which may be confusingly similar to or an infringement of the Marks or any of our domain names.
5.0 ACCESS INFORMATION & CONTENT
5.1 Access Information . You agree to maintain the confidentiality of Access Information and to be liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to email@example.com . We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
5.2 Responsibility for Content . We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate NiX Solution access, and disable NiX Software, in response to a violation or suspected violation of these Terms.
5.3 License to Content . You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, copy and transmit your Content solely for the purposes of providing the NiX Solution to or for the benefit of you.
6.0 OTHER APPLICATIONS
You are solely responsible for the Other Applications. We will not be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the NiX Solution and on reasonable terms or otherwise, we may cease providing such features of the NiX Solution, without entitling you to any refund, credit or other compensation. You may be subject to additional terms and conditions that may apply when you use Other Applications.
7.0 NIX SOLUTION INTEGRITY
7.1 Prohibited Acts . You are prohibited from breaching or attempting to breach any security features of the NiX Solution, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the NiX Solution, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the NiX Solution by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the NiX Service, our computer systems, or the technical delivery systems of us or our providers; (g) transmitting any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the NiX Solution by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the NiX Solution.
7.2 Illicit Access . You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the NiX Solution, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the NiX Solution in whole or in par, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the NiX Solution. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the NiX Solution.
8.0 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY & INDEMNITY
8.1 Disclaimer . TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide the NiX Solution on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE NIX SOLUTION, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the NiX Solution will meet your requirements, goals or needs, (b) NiX Solution access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the NiX Solution will be corrected. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the NiX Solution.
8.2 Exclusion . EXCLUDING ONLY DAMAGES ARISING OUT OF OUR LIABILITY FOR OUR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY EXCLUDE LIABILITY, WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR INABILITY TO USE THE NIX SOLUTION AND ANY CONTENT; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED DISPLAY, ACCESS TO OR DELETION OR ALTERATION OF CONTENT, INFORMATION OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR ANY OTHER MATTER RELATING TO US, THE CONTENT OR THE NIX SOLUTION. EXCLUDING ONLY OUR LIABILITY FOR OUR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY LIMIT LIABILITY, ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED IN THE AGGREGATE TO THE GREATER OF US$5 OR ALL AMOUNTS PAID BY YOU TO US DURING THE TWELVE-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE CLAIM OR INCIDENT. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
9.0 GENERAL PROVISIONS
9.1 Service Discontinuance/Modification . We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the NiX Solution. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
9.2 Account Termination . We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms; (b) abuse of NiX resources or any attempt to gain unauthorized entry to the NiX Solution; (c) use of the NiX Solution in a manner inconsistent with its purpose; or (d) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the NiX Solution for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.
9.3 Trademarks; Media . You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including NiX TM .
9.4 Georgia USA-Based . The NiX Solution is controlled by us from our offices in Atlanta, Georgia. Your use of or access to the NiX Solution will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than Georgia.
9.6 Arbitration .
Any disputes between or claims brought by you or us arising out of or
related to the Subject Matter (as defined in section 9.5), including tort
as well as contract claims, and whether pre-contractual or
extra-contractual, as well as the enforceability of this section 9.6 and
the arbitrability of any disputes (subject to sections 9.6(d) and 9.6(e)
below) will be referred to and finally settled by (1) informal means as
set forth in section 9.6(b), and if such means are unsuccessful at
resolving the dispute(s), (2) binding arbitration as specified in this
section 9.6. If you are a US resident, such arbitration will be conducted
before a single arbitrator conducted by the American Arbitration
Association (AAA), in accordance with (except as inconsistent with this
section 9.6) the AAA Consumer Arbitration Rules in effect at the time of
arbitration (current version available
), and venue for the arbitration will be any one of the following cities
that is closest to your residence: New York City, New York, Chicago,
Illinois, or San Francisco, California. If you are not a resident of the
US, arbitration will be conducted before a single arbitrator of the
International Court of Arbitration in accordance with (except as
inconsistent with this section 9.6) the Rules of Arbitration of the
International Chamber of Commerce, Expedited Procedures (current version
), and venue will be held in any one of the following cities that is
closest to your residence: New York City, New York; Chicago, Illinois; San
Francisco, California; or London, England. All arbitral proceedings,
hearings and submissions will be in the English language.
The parties agree that this section 9.6 states the exclusive means of
resolving disputes between the parties regarding the Subject Matter, and
that the parties therefore waive the right to a trial by jury.
(b) Except for actions or claims described in section 9.6(e)(2) or 9.6(e)(3), we will first try to resolve dispute(s) between us informally and neither of us may start a formal arbitration proceeding for at least thirty days after one of us notifies the other of a dispute in writing. Notice of the dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested.
(c) The arbitration will be conducted without in-person appearances (as in a live hearing) if (1) the credibility of testifying witnesses is unnecessary to the resolution of the dispute; (2) the parties agree to waive in-person appearances; (3) the applicable arbitration rules permit waiver of or otherwise don't require in-person appearances; (4) the claim does not exceed $10,000; or (5) the arbitrator determines that in-person appearances are unnecessary or unhelpful, or would be burdensome to any of the parties to the arbitration or to their staff. If in-person appearance is required, such hearings will be held via videoconference unless the arbitrator determines, in the arbitrator's reasonable discretion, that a videoconference is not suitable. For clarity, nothing in these terms abrogates either party's right to a transcription of all arbitration proceedings at such party's own expense.
(d) The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. The validity and effectiveness of this section 9.6(d) is not arbitrable.
(e) Notwithstanding the foregoing, nothing in this section 9.6 will preclude the right and ability of either party to bypass arbitration and file and maintain at any time: (1) an individual action in any US small claims court of competent jurisdiction; (2) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto; and (3) an action claiming infringement or misappropriation of intellectual property rights in any court of competent jurisdiction under the laws applicable thereto. Such actions, either party's right to pursue such actions, and the validity and effectiveness of this section 9.6(e) are not arbitrable. For clarity, nothing in these Terms will be construed as either party's consent to the exercise of the jurisdiction of any court except as set forth in section 9.5.
(f) Subject to sections 9.6(d) and 9.6(e), all claims and disputes between the parties relating to the Subject Matter must be resolved using arbitration in accordance with this section 9.6. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.
(g) Except to the extent required by law or in order to enforce arbitral awards in court, the parties shall keep confidential, make no public announcements regarding, and shall not disclose the existence of (1) any dispute, (2) the existence or details of the arbitration proceeding, and (3) all related documents, materials, evidence, judgments and awards therein.
(h) The arbitrator will apply the law specified in section 9.5, without regard to conflicts of law rules. If you are a US resident, the parties agree that these Terms evidence a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this section 9.6.
(i) The parties acknowledge that if one or more provisions of this section 9.6 is found to be unenforceable, invalid, preempted or unlawful for any reason, the parties' intention is to (1) maintain the enforceability of such invalid or unenforceable provision in any circumstances other than those this in which the provision is held to be unenforceable, (2) modify such provision to the extent the provision can be rendered enforceable, and (3) sever such invalid or unenforceable provision from the remaining section 9.6 so as to preserve as much of the remaining as possible, so that such provision will not impact the ability to compel arbitration of any remaining claims on an individual basis. To the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in the courts specified in section 9.5, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
9.7 Limitation . You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
9.8 Assignment . These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
9.9 Injunctive Relief . You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the NiX Solution, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
9.10 Force Majeure . No delay, failure or omission by or caused by us to carry out or observe any of our obligations hereunder will give rise to any claim against us or be deemed to be a breach of this Agreement if and for as long as such failure or omission arises from any cause beyond our reasonable control.
9.11 Miscellaneous . The Terms constitute the entire agreement between you and us and govern your use of the NiX Solution, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms and any NiX website page (including any page describing or summarizing your or our rights, obligations, and/or these Terms), these Terms will control. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties hereto confirm that they have requested that these Terms and all attachments and related documents, if any, be drafted in English.