Terms of Service
Updated September 20, 2017
This Terms of Service ("Agreement") governs your use of and access to the Services provided by Nikktto, Inc., a Washington corporation (“Nikktto”), whether in connection with a Service Plan or a free trial of the Service.
This Agreement is effective as of the date you submit your registration on Nikktto.com (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity, please do not check the box below (or, if applicable, do not sign this Agreement).
Nikktto may modify the terms of this Agreement upon 30 days prior written notice to you. You will have an opportunity to review and accept the modified Agreement. Any such acceptance shall become effective upon the commencement of your next renewal term. If you fail to accept such modified Agreement, Nikktto reserves the right to terminate your access and use of the Service upon the termination of your Subscription Term.
During the Subscription Term, and subject to all terms and conditions of this Agreement, Nikktto will use commercially reasonable efforts to provide the Services to you consistent with your Service Plan. Nikktto may provide the Services using third party vendors or service providers. You agree to pay Nikktto the fees, in the amounts and at the times specified in your selected Service Plan.
1.2 CHANGES TO THE SERVICE.
Nikktto reserves the right to modify or discontinue the Service or any Service Plan (in whole or in part) at any time by giving at least 30 day’s written notice to you. Nikktto may also make commercially reasonable modifications to the Service from time to time without prior notice.
Nikktto will not be responsible or liable for any failure in the Services resulting from or attributable to (a) your Systems, (b) network, telecommunications or other service or equipment, (c) your, or third partys’ products, services, negligence, acts or omissions, (d) any force majeure or cause beyond Nikktto's reasonable control, (e) scheduled maintenance or (f) unauthorized access or breach by third parties. You are responsible for maintaining the confidentiality of your account access password, and for all activities that occur under your account.
You shall obtain and operate all Systems needed to use the Services, and provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services.
2.1 CUSTOMER CONTENT.
As between the parties, you shall own all Customer Content. You hereby grant Nikktto a nonexclusive and royalty-free right and license to use, copy, perform, display, and distribute said Customer Content and to prepare derivative works of Customer Content solely for the purpose of providing the Services, both to you and End-Users. You agree to indemnify and hold Nikktto harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys' fees) arising out of any use or disclosure of Customer Content and your use of the Services.
You understand that you are solely responsible for all Customer Content posted on, transmitted through, or linked from the Service, including any Customer Content created or provided by End-Users. You acknowledge that Nikktto does not pre-screen or approve Customer Content, but that Nikktto shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Customer Content that is available via the Service for violating the letter or spirit of this Agreement or for any other reason.
You agree to create archival copies or backup copies of all Customer Content. You hereby expressly acknowledge that the Services are not intended to be a data backup service, and you agree not to use the Services as a data backup service. Although Nikktto does not claim ownership of Customer Content, you represent and warrant that you have the right to grant the foregoing license to Nikktto.
2.2 NO IMPLIED LICENSE.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted to you, no other use is permitted and Nikktto (and its licensors) shall retain all right, title and interest in and to the Service and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). You shall not take any action inconsistent with such rights.
Any reproduction, modification, creation of derivative works from or redistribution of the Nikktto.com website, and/or copying or reproducing the Nikktto.com website or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Nikktto. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service.
You shall not alter, obscure or remove any printed or on-screen trademark, copyright or other proprietary or legal notice.
3. Service Plans
3.1 SERVICE PLAN UPGRADES
Your Service Plan includes certain restrictions on your use of the Services. In the event your use of the Services exceeds any such limitations at any time, you consent and agree to your Service Plan being upgraded at the beginning of your next monthly billing cycle, to the Service Plan appropriate for your usage level. Any such upgrade shall not require your prior consent or any notice to you.
3.2 TRIAL PERIODS
If you signed up for a “Free Trial”, you will be permitted to access and use the Services until the end of your Trial Period. Upon the termination of such Trial Period, you must select a Service Plan other than a “Free Trial” and begin paying Subscription Charges as set forth in this Agreement.
4.1 CREDIT CARD INFORMATION.
In order to set up an account with Nikktto, you must provide Nikktto with accurate and complete billing information including legal name, address, telephone number, and a valid credit card. By submitting such credit card information, you give Nikktto permission to charge all Subscription Charges and any other fees incurred for using the Services to the designated credit card. Nikktto reserves the right to terminate this Agreement and your access to and use of the Services in accordance with Section 7 hereto if you do not provide a valid credit card for the payment of fees hereunder, or if any Subscription Charges or other charges are not timely paid.
4.2 PAYMENT TERMS.
The Subscription Charges are billed in advance upon commencement of your Subscription Term, and thereafter on a monthly basis and are non-refundable. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds. For any upgrades or downgrade in Service Plan level, your credit card will automatically be charged the new rate beginning with the next billing cycle. Any add-on features or Services not provided in your Service Plan will be billed in accordance with specific terms provided at the time the add-on features or Service is requested by you.
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Nikktto's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
4.4 REVISING SUBSCRIPTION CHARGES
Nikktto may revise Subscription Charges for the Services by providing you written notice (which may be by email) at least thirty days prior to the start of the following renewal term of your Subscription Term.
5.1 DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NIKKTTO DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, NIKKTTO HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
6. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS Agreement, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO NIKKTTO HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS Agreement AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
7. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue in effect for the initial term specified in the Service Plan. If no initial term is specified in the Service Plan, the initial term shall be 1 month. Unless terminated earlier as permitted herein, the Agreement will be extended automatically for additional terms of 1 month at the end of the initial term and each renewal term (collectively, the “Subscription Term”). Either party may elect not to renew this Agreement by giving written notice thereof, which shall include notice via email, to the other party at least 30 days prior to the end of the then current initial or renewal term.
This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, (b) upon 30 days written notice to the other party for any reason, or (c) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
7.3 EFFECTS OF TERMINATION.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the Effective Date of termination (including without limitation, all payment obligations) shall survive, (b) Nikktto may, but shall not be obligated to, delete Customer Content and (c) the provisions of Sections 2 (Proprietary Rights), 4 (Payments), 5 (Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section 7.3 shall survive. Following any termination or expiration of this Agreement, you shall have 30 days to access your account and download / export your Customer Content.
8. GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT.
This Agreement (together with the applicable Service Plan(s)) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Service Plan, the terms and conditions in the Service Plan will prevail and be controlling. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If this Agreement is required to be registered with any governmental authority, you shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
8.2 GOVERNING LAW / Binding Arbitration
This Agreement shall be treated as though executed and performed in the state of Washington, and shall be governed by and construed in accordance with the laws of Washington, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement.
Any dispute relating in any way to your use of the Services shall be submitted to confidential arbitration in Washington, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Indiana. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Indiana. Arbitration under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. Nikktto operates the Service from its offices in the State of Washington.
In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 2, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed email, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Service Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder may be assigned upon 10 days prior written notice to the non-assigning party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
8.6 INDEPENDENT CONTRACTORS.
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9. Standards of Use
You agree to not use the Services to:
- upload, post, sell, buy, or email or otherwise transmit anything that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm or unlawfully exploit minors in any way (including but not limited to uploading, posting, emailing, or otherwise transmitting any submission involving the unlawful exploitation of a minor);
- upload, post, email otherwise transmit anything depicting gratuitous animal cruelty;
- impersonate any person or entity, including, but not limited to, a Nikktto employee, contractor or representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of anything transmitted through the Service;
- upload, post, email or otherwise transmit anything that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email or otherwise transmit any submission that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
- upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
- “Customer Content” means all of your registration information and other information provided by you in connection with your use of the Services, including without limitation information, content, data, messages, text, files, images, photos, video, sounds, other materials, and any of the foregoing provided by and End-User via your or their use of the Services.
- “End-User” means any person or entity other than you with whom you or your Affiliates interact using the Service.
- “Service Plan” means the plan chosen by you during, or subsequent to your registration to use the Services.
- “Services” means the application provided by Nikktto that allows you to create and update a website, as further described in your Service Plan. Any new or modified features added to the Service are also subject to this Agreement.
- “Subscription Charges” means fees payable by you for your use of (a) the Services, as specifically set forth in your Service Plan, or (b) any add-on features or Services requested by you from time to time.
- “Systems” means modems, servers, software, network and communications equipment and ancillary services and hardware that are owned, controlled or procured by you.