This Agreement, titled "Terms & Conditions of Use" (hereinafter "Agreement") is in electronic form and constitutes an agreement between NIVIN, Inc., a Delaware corporation duly authorized to do business in the State of California ("NIVIN," "we," "us," or "our") and "you" (as defined in section 1.g below) with respect to your use of the websites, systems and services of NIVIN (collectively, the "Services"). Your use of the Services, whether or not paid for, legally binds you to this Agreement.
By checking the box that reads "I have read the Terms and Conditions of Use and agree to be bound by them," or by using our Services you represent and warrant that you have the right and authority to bind the person on whose behalf you have set up an account. If you do not have such right and authority, or if you do not agree to all of the terms and conditions contained herein, then you may not create an account or use the Services.
“Administrator Account” means an account established for a person who provides the Services to third parties by establishing Client Accounts and maintaining control over user names, passwords, and activity in those Client Accounts;
“Client Account” means an account established for a person who uses the Services in connection with such End User’s social media accounts;
“End User” means anyone who uses the Services;
“Person” means a natural person or any entity, such as a corporation, limited liability company, partnership, or association.
“Reseller Account” means an account established for a person who re-sells the Services (A “Reseller”) to third parties, which third parties either establish their own Client Accounts or take control of Client Accounts set up by the Reseller;
Wherever the word “use” is referred to this Agreement in connection with the Services, it shall be construed to include accessing, using and/or receiving the Services; and
“You” or “your” means a person who establishes, or uses the Services through, a Client Account, Administrator Account, or Reseller Account.
The Services consist of various online marketing services and applications. We may periodically modify or eliminate existing Services, or add new ones, for example, to reflect changes in online social media, to provide new features, to comply with new regulatory requirements, to improve the efficacy of the Services, or to better address the needs of our customers.
We may also make modifications to this Agreement (“Modifications”) by amending, deleting or adding new provisions at any time, and such Modification shall be effective as of the date on which we post the modified Agreement on this page or notify you via email (“Effective Date”). You can determine when this agreement was last revised by referring to the "Last Updated" legend at the top of this Agreement. Your continued use of the Services following the Effective Date of the modified Agreement constitutes your acceptance thereof. NIVIN shall not be bound by any terms or conditions other than those contained in this Agreement (as may be modified from time to time) unless such terms and conditions are contained in a writing and signed by our duly authorized representative.
Social Media Posting. When you provide us with access to your social media accounts (e.g., Facebook, Twitter, Instagram, Pinterest), you understand and agree that you are authorizing us to publish and post to such social media accounts such “Client Content” (as hereinafter defined) as we determine.
Client Content Publishing. If the publication or posting of “Client Content” (as hereinafter defined) is included in the Services provided to you:
Grant. You hereby grant to us the worldwide, royalty-free, fully-paid, non-exclusive, sublicensable (as necessary to perform the Services) right and license to use, reproduce, publicly perform, publicly display, publish, distribute, create derivative works of, and otherwise exploit such “Client Content,” all as we deem appropriate to perform the Services. As used herein, “Client Content” means all content, data and other information made available by you to us in connection with the Services, including but not limited to text, trademarks, logos, photos, videos, and advertisements. You further agree to respond in a timely manner to any request by us to review and approve information generated for you and acknowledge that we may make unilateral content publishing decisions on your behalf should you fail to meet the applicable response deadlines.
Non-Infringement. You warrant and represent that our use of Client Content as authorized by you in section 3.b above does not and will not infringe upon or violate any right of any kind or nature belonging to a third party.
Non-Compliance. We reserve the right to remove at any time any of your Client Content that violates this Agreement or any policy of NIVIN, whether or not stated in writing.
Backup. It is your sole responsibility to use the Services as instructed and to back up your Client Content. We shall have no obligation to you whatsoever to back up or preserve Customer Content
User Names and Passwords. In order to use the Services, you are required to open one or more accounts. You are entirely responsible for maintaining the confidentiality of the information you hold for all of your account(s), including your password, and any and all activity that occurs under your account. If you are a Reseller and open Client Accounts for third parties, you must instruct those third parties to change the passwords that you used to open their accounts.
Promptly notify us if you learn of or suspect a security breach related to your account(s) or the Services;
Ensure that NIVIN always has current billing and other information necessary for billing and continuation of the Services; and
Keep all personally identifying information secure. As used herein, “personally identifying information,” or “PII,” means any information that permits a specific individual to be contacted physically or online, including but not limited to his or her first and last name, physical street address, email address, telephone number and social security number.
You shall not:
Use the Services or any part thereof to engage in, facilitate or further unlawful conduct, including but not limited to using the Services as a destination linked to or from any unsolicited bulk messages or unsolicited commercial messages (so-called “spam”);
Use the Services or any part thereof in such a way as to bring harm or risk of harm to other clients, NIVIN, or the Services;
Damage, disable, overburden and impair the Services or interfere with anyone's use and enjoyment of the Services;
Use any means not authorized by NIVIN in writing to modify or reroute, or attempt to modify or reroute, the Services;
Copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, modify, alter, transfer or sell any information provided by the Services; or
Resell or redistribute the Services or any part thereof.
NIVIN treats your PII as highly confidential both to you and to our operations. We do not sell, trade, rent or furnish your PII to anyone, and we do not partner or enter into business relationships with ad server companies. Our Services are managed and run on Amazon Web Services (AWS).
Notwithstanding the foregoing,
NIVIN may need to disclose PII:
To comply with any applicable law, regulation, legal process or enforceable governmental request;
To enforce this Agreement, including investigation of potential violations;
To detect, prevent, or otherwise address fraud, security or technical issues; or
To protect against harm to the rights, property or safety of NIVIN, other clients, or the public;
If NIVIN is sold or transferred to another entity, your PII is likely to be part of the sale or transfer in order to provide you with a continuity of Services; and
From time to time, we may use your address, including your email address, to send you notices or offers about our Services and website. Your use of the Services constitutes your consent to receive such notices from us.
Fees and Auto-Renewal. Your payment obligations for any month in which you use the Services, whether as an individual, Reseller, or Administrator, are non-cancelable, and all fees paid are non-refundable. You understand and acknowledge that our Services operate on an auto-renewal, subscription basis, such that your credit card, debit card, electronic payment, or other method of payment (“Payment Methods”) will be assessed the specified fees at monthly intervals based on the Services to which you subscribe, whether on behalf of yourself or third parties. We may increase our fees provided that we have given you no less than thirty (30) days’ prior notice of such increase via email. You represent and warrant that you have the full legal right to use the Payment Methods and hereby authorize us to use such Payment Methods on a monthly basis, in advance, to pay for all Services to which you have subscribed for such month, whether on behalf of yourself or third parties.
Cancellation. To cancel any of the Services, you must either email us at firstname.lastname@example.org or call us at (855) 979-8090. Our business hours are from 8:00 a.m. – 5:00 p.m. PST, Monday – Friday, excluding US federal holidays. When you cancel the Service, your account will remain active for the remainder of the month, but will not renew, and you will no longer be billed. If you are on a free trial, you must cancel one (1) business day prior to the end of your trial period to avoid being charged for use of the Services.
Late Fees and Penalties. You shall be responsible for paying any applicable taxes related to your use of the Services. If any fees due to us are not received by the due date, or if we receive any chargebacks for a payment already made, then we may charge you interest on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If the amount owing is thirty (30) or more days overdue, we may, without limiting our other rights and remedies, we may suspend the Services until such amounts are paid in full.
Representations and Warranties. You represent and warrant that: (i) you have the right, power and authority to enter into and perform your obligations under this Agreement; (ii) all information provided by you is accurate, truthful and not misleading; (iii) you have the right to grant us the licenses specified in this Agreement with respect to Client Content, if applicable; (iv) the execution and performance of this Agreement does not violate any applicable law or other contract or obligation to which you are a party or are otherwise bound; and (v) the Client Materials do not infringe any rights of any third party, including but not limited to intellectual property rights (e.g., copyrights, trademarks, and rights in trade secrets), rights of privacy, and rights of publicity.
NIVIN’S LIMITED WARRANTIES.
NIVIN PROVIDES THE SERVICES "AS IS.”
NIVIN MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRITY OF DATA, TITLE OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS.
NIVIN DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFICIENCIES IN THE SERVICES WILL BE CORRECTED.
NIVIN MAKES NO WARRANTY AS TO THE USE OR THE RESULTS OF USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, GIVEN BY NIVIN OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THE LIMITATIONS ON WARRANTIES CONTAINED IN THIS SECTION 8.
SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS ON WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATIONS ON NIVIN’S LIABILITY.
IN NO EVENT SHALL NIVIN OR ITS OWNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES (“RELATED PERSONS”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR: ANY COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT SERVICES OR GOODS; LOSS OR CORRUPTION OF DATA; LOSS OF ANTICIPATED SAVINGS, BUSINESS, BUSINESS INFORMATION, CONTRACTS, GOODWILL, PRODUCTION, PROFITS OR REVENUES; WASTED OPPORTUNITY OR WASTED MANAGEMENT AND/OR STAFF TIME; BUSINESS INTERRUPTION; FAILURE TO MEET ANY DUTY, INCLUDING THAT OF GOOD FAITH OR REASONABLE CARE; NEGLIGENCE; LOSSES ARISING OUT OF PERSONAL INJURY OR DEATH; ANY INDIRECT, SPECIAL, REMOTE OR SPECULATIVE DAMAGE; OR ANY OTHER DAMAGE ARISING OUT OF OR RELATED TO THE INSTALLATION, USE, INABILITY TO USE, OR NON-USE OF SERVICES EVEN IF NIVIN AND ITS RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, THE LIABILITY OF NIVIN AND ITS RELATED PERSONS SHALL BE LIMITED TO DIRECT DAMAGES WHICH, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, SHALL NOT EXCEED THE LESSER OF ONE HUNDRED ($100) DOLLARS OR THE FEE PAID BY THE CLIENT FOR THE MONTH IN WHICH SUCH DAMAGES FIRST OCCUR. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION You shall and hereby do indemnify, defend and hold harmless NIVIN and its Related Persons from and against any and all claims, demands, proceedings or lawsuits, and any and all losses, costs, damages and expenses (including reasonable attorney’s fees, court costs and legal expenses) resulting therefrom or related thereto, which claims, demands, proceedings or lawsuits, arise out of or relate to: (a) your use, inability to use, or non-use of the Services; or (b) any breach or alleged breach by you of any of the warranties and representations made by you in this Agreement.
NIVIN, Youtily, SocialClique, ValueAds, and other marks indicated on our website or Services, together with any logo forms thereof, are trademarks and/or service marks of NIVIN and may be registered in the United States or in other jurisdictions, including internationally. NIVIN’ trademarks, service marks and trade dress may not be used in connection with any product or service that is not approved in writing by NIVIN and/or in any manner that is likely to cause confusion among customers as to the true source or sponsorship of such products or services and/or or in any manner which disparages or discredits NIVIN or the Services. Any trademark or service mark not owned by NIVIN that appears on our website or Services is the property of its owner who may or may not be affiliated with, connected to, or sponsored by NIVIN. No association with any company, entity, product, domain name, e-mail address, logo, person, place or event is intended and none may be inferred.
NIVIN retains all right, title and interest in and to the Services, including all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein and thereto. This Agreement shall not be deemed to grant or imply any right of any kind or nature to any NIVIN’ trademarks, trade names, logos, software, system, intellectual property or personal property.
Amendments in Writing. No amendment to or modification of this Agreement or any of its terms and conditions shall be valid or binding on the Parties except as provided in section 2 above.
Assignment. You may not transfer or assign this Agreement or any of your rights hereunder, or delegate any of your obligations, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger, consolidation, dissolution, operation of law or any other manner, without NIVIN’ prior written consent.
Binding Effect. The rights and benefits of this Agreement shall be binding upon and inure to the benefit of, and be enforceable by the Parties' respective successors and permitted assigns.
Enforceability/Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect.
Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to said subject matter.
Governing Law. This Agreement and any dispute or controversy arising out of or related to this Agreement and/or the relationship between the Parties established herein (“Claims”) shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of California without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction serving San Diego, California, and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
Rights of Third Parties. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever.