Last Updated: October 05, 2012
Welcome to nivio. Please read these terms of service (these "Terms") carefully as they form a contract between you and the nivio entity listed in Section 17 of these Terms ("nivio", "we," "us," or "our") that governs your access and use of: (i) the hosted storage solution provided by nivio for online storage and synchronization of files, materials, data, text, audio, video, images or other content (collectively, "Content"); (ii) the desktop solution provided by nivio which allows the use of a Windows® desktop on multiple devices; (iii) software provided or made available by nivio (the "Software"); and, (iii) any written or electronic documentation provided or made available by nivio (the "Documentation") (collectively the "Service(s)").
By using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to nivio that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization). You may use the Services only in compliance with these Terms and only if you have the power to form a contract with nivio and are not barred under any applicable laws from doing so. If you do not agree to be bound by these terms, you must not use the service. Should you have any questions concerning this Agreement, please contact firstname.lastname@example.org.
Please note that nivio doesn't provide warranties for the Service. This contract also limits our liability to you. See Sections 14 and 16 for details.
1. Changes to these terms
We reserve the right to modify or replace these Terms at any time in our sole discretion. We will indicate at the top of these Terms the date these Terms were last updated. Any changes will be effective upon posting the revised version of these Terms on the Service (or such later effective date as may be indicated at the top of the revised Terms). Therefore, we encourage you to check the date of these Terms whenever you visit www.nivio.com (the "Site") to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you don't agree to any of the changes, we're not obligated to keep providing the Service, and you must cancel and stop using the Service.
2. Access to the service
You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms, any licenses or other agreements that you may enter into with nivio or a third party relating to the Service, and all applicable laws.
3. Your account
To obtain access to certain Services, you may be required to obtain an account with nivio (become a "Registered User"), by completing a registration form and designating a user ID and password. Until you apply for and are approved by nivio to become a Registered User, in nivio's sole discretion, your access to the Service will be limited to the areas of the Service, if any, that nivio makes available to the general public. When registering with nivio you must: (a) provide true, accurate, current and complete information as requested by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. nivio may withdraw such approval at any time in its sole discretion, with or without cause.
Only you may use your Service account. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide an approved mechanism for such use. You must contact us right away if you suspect misuse of your account or any security breach in the Service. You are responsible for all activities that take place with your account. nivio will not be liable for any loss or damage arising from any unauthorized use of your accounts.
If a third party such as an employer gave you your account, that party has rights to your account and may: manage your account, create your user ID and password, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and add or remove Services from your account.
4. Consent to electronic communications and solicitation
By registering with nivio, you understand that we may send you communications or data regarding the Services, including but not limited to (a) notices about your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding nivio's products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.
Except for material that we license to you which is owned by us, we don't claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also don't control, verify, or endorse the Content that you and others may make available on the Service.
We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, such as the public share feature, anyone you've shared content with (including the general public, in certain circumstances) may have access to your Content.
You hereby grant nivio and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms.
You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content doesn't violate any law or these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. nivio will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content, even if nivio has been advised of the possibility of such damages.
You must immediately notify nivio in writing of any unauthorized use of any (a) Content (b) any account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide nivio with such cooperation and assistance related to any such unauthorized use as nivio may reasonably request.
6. Content may be stored in the United States
The Service is provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States. nivio reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days' notice of any such changes in the processing location.
7. Suspension and termination of customer's use of the service
You may stop using the Services at any time. We reserve the right, to temporarily suspend or terminate your access to the Service at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause nivio to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; (f) unplanned technical problems and outages. If, in nivio's determination, the suspension might be indefinite and/or nivio has elected to terminate your access to the Service, nivio will use commercially reasonable efforts to notify you through the Service. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination by nivio, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account. If you would like to keep a copy of the data stored in your account, you must remove such data prior to the termination date.
In addition to other termination provisions, if your account it not currently subject to a paid subscription plan with us, we may terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (b) you do not engage in any activity in your account for any period of sixty (60) consecutive days. We will send you an email describing the situation and informing you that your account will be closed within seven (7) days unless you begin to use the account during that period. At the conclusion of that seven (7) day period, absent any such activity we will close the account. Any Content you may have stored will be lost.
8. Acceptable use
You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or nivio. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it without express permission in writing from nivio; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by nivio) to access or use the Service. In addition, you promise that you will not and will not encourage or assist any third party to:
(a) modify, alter, tamper with, repair or otherwise create derivative works of any Software;
(b) reverse engineer, disassemble or decompile the software used to provide or access the Service, including the Software, or attempt to discover or recreate the source code used to provide or access the Service, except and only to the extent that the applicable law expressly permits doing so;
(d) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
(e) remove, obscure or alter any proprietary rights notice pertaining to the Service;
(f) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
(g) use the Service in connection with real time control systems or other situations in which the failure of the Service could lead to death, personal injury, or physical property or environmental damage;
(h) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through nivio; (iv) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) initiate a denial of service attack; (vi) store any Content that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vii) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(i) interfere with or disrupt servers or networks used by nivio to provide the Service or used by other users' to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Software or the Service;
(j) access or attempt to access nivio's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
(k) cause, in nivio's sole discretion, inordinate burden on the Service or nivio's system resources or capacity; or
(l) share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Service.
nivio reserves the right, in its sole discretion, to deactivate, change and/or require you to change your user ID and any vanity URL you obtain through the Services for any reason or for no reason. nivio may exercise such right at any time, with or without prior notice. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in our sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint. We will not assume or have any liability for any action or inaction with respect to any Content.
9. Updates to the service
nivio reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
If you receive Software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.
We may automatically check your version of the Software.
We may also automatically download to your computer or device new versions of the Software.
Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
11. Third party services and software
The Services may contain features and functionalities linking you or providing you with certain functionality and access to certain third party content, software or services; you acknowledge that we are not responsible for such content or services. Any use of third party software or services may be governed by terms and conditions provided by such third party and you agree to such terms and conditions prior to using or accessing such third party software or services. If you do not agree to the terms related to such third party software or services, you may not use the third party software or services through the Service. All transactions using nivio's services are between the transacting parties only. We are not responsible for any third party content, software or service you access with the Services, and you irrevocably waive any claim against us with respect to such third-party content, software and services. nivio shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.
12. nivio proprietary rights
As between nivio and you, nivio or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by nivio. In the event that you provide comments, suggestions and recommendations to nivio with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, "Feedback"), You hereby grant to nivio a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching these Terms. The technology or other means we use may hinder or break your use of the Service.
14. No warranty
nivio provides the service "as is" "with all faults" and "as available". To the maximum extent permitted by applicable law, nivio makes no (and specifically disclaims all ) representations or warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, any warranty that the service will be uninterrupted, error-free or free of harmful components, that the content will be secure or not otherwise lost or damaged, or any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement, and any warranty arising out of any course of performance, course of dealing or usage of trade. Some jurisdictions do not allow the foregoing exclusions. In such an event such exclusion will not apply solely to the extent prohibited by applicable law.
To the extent permitted by law, You will defend nivio against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of nivio's actions); or, (b) violates applicable law or these Terms. nivio will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.
16. Limitation of liability
To the fullest extent permitted by law, in no event will nivio, its affiliates, officers, employees, agents, suppliers or licensors be liable for (a): any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, revenue, goodwill, use or content) however caused, under any theory of liability, including, without limitation, contract, tort, warranty, negligence or otherwise, even if nivio has been advised as to the possibility of such damages. To the maximum extent permitted by applicable law, the aggregate liability of nivio and its affiliates, officers, employees, agents, suppliers or licensors, relating to the services will be limited to the greater of i) the aggregate amount paid for the service for the three months prior to the date the liability first arose or ii) five dollars ($5.00). The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose. Some jurisdictions do not allow the limitation of incidental, consequential or other damages. In such an event this limitation will not apply to you to the extent prohibited by law.
17. Contracting party; governing law; location for resolving disputes
You are contracting with nivio Americas corporation, a Delaware corporation with an address at 160 Green Tree Drive, Suite 101, Dover, DE 19904. The laws of the State of Delaware, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Delaware, for all disputes arising out of or relating to these Terms. nivio may assign this contract to another entity at any time.
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service. You may notify us via email to email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: 2825 El Camino Real, Palo Alto, CA 94306. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
Upon approval by nivio, you may be provided access to the Services free of charge on a trial basis (the "Free Trial"). During the Free Trial, nivio may restrict the Services, including but not limited to, the length of time you may use the Services, the storage limits for the Services, or the portion of the Service you may use.
If you are currently on a Free Trial, you may cancel or downgrade your account, free of charge, at any time until expiration of the Free Trial. For example, if you have a 30-day trial, you may cancel or downgrade your account, free of charge, at any time until thirty (30) days after your account was created. The day of creation constitutes the first day of a 30-day trial.
If you desire additional Services beyond the scope and limitations of the Services provided during the Free Trial, then you may register for the fee-based Services at any time.
20. Payments and refunds
The fees applicable for Service ("Fees") are available at the Site and as published within the Service. The price stated for the Service excludes all taxes and charges, unless you are subject to a value added tax or unless stated otherwise. You will pay the Fees in the currency nivio quoted for your account. nivio reserves the right to change the quoted currency at any time.
In addition to any Fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
You must be authorized to use the payment method that you enter when you create a billing account. You authorize us to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you've approved, and we'll notify you in advance of the difference for recurring subscription Services. We may bill you simultaneously for more than one of your prior billing periods. Once we have informed you that the Service will be provided indefinitely or automatically renewed, we may automatically renew your Service and charge you for any renewal term. You must keep all information in your billing account current. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
We'll notify you in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service. If you don't agree to these changes, you must cancel and stop using the Service by notifying us at firstname.lastname@example.org. If you cancel, your Service ends at the end of your current Service period or, if we bill your account on a period basis, at the end of the period in which you canceled.
Unless we notify you otherwise, if you're participating in any Free Trial, you must cancel the Service by the end of the trial period to avoid incurring new charges. If you do not cancel your Service and we have told you the Service will convert to a paid subscription at the end of the trial period, you authorize us to charge your payment method for the Service.
We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
If you subscribe to the Service through a third party reseller, the terms in this Section 20 may not apply to you.
21.1. Severability; entire agreement
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
21.2. Assignment and transfer
We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
21.3. Independent contractors; no third-party beneficiaries
nivio and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
Claims must be filed within one year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
21.6 Export restrictions
The Software may be subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's Lists to Check). You represent and warrant that you're not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
21.7 Government use
If you are a U.S. government entity, you acknowledge that any Software and Documentation that are provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
22. Copyright complaints and removal policy
nivio does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices can be reported by sending us a notice at the address listed below. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement is:
Attn: DMCA Copyright Agent
2825 El Camino Real
Federal law requires your DMCA Notice to include the following information:
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it;
- Your address, telephone number, and e-mail address;
- A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
- Your physical or electronic signature.
23. Intellectual property notices
All contents of the Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2011 nivio Americas Corporation, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.
nivio and the nivio logo are including without limitation, either trademarks, service marks or registered trademarks of nivio, Inc., and may not be copied, imitated, or used, in whole or in part, without nivio's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.
nivio may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted in those terms are reserved.