Durée et résiliation
1.1 Le présent accord restera en vigueur jusqu'à ce que tous les abonnements
accordées conformément au présent Accord ont expiré ou cet accord est résilié
par vous ou Nicoka (la «durée»). Si vous décidez d'utiliser le service
pour une période d'essai gratuite, le cas échéant, et ne pas acheter un
abonnement avant la fin de cette période, le présent Accord expirera à
la fin de la période d'essai gratuite.
1.2 L'abonnements de l'utilisateur que vous avez achetés commencent à
la date de début spécifiée lors du paiement et continuent pour la durée
de l'abonnement sélectionné au moment du paiement. Vous êtes seul responsable
de la bonne annulation de votre compte. Vous pouvez annuler votre compte
à tout moment par mail contact (@) nicoka.com.
1.3 Les deux partie peuvent mettre fin au présent Accord à tout moment
en cas de violation importante qui ne serait pas corrigée dans les 30 jours
de préavis écrit par la partie non défaillante (sauf dans le cas de votre
non-paiement (y compris dans le cas où votre carte de crédit ne peut pas
être chargée), auquel cas Nicoka peut suspendre ou résilier votre accès
au Service sur un tel non-paiement). Nicoka vous remboursera les frais
prépayés couvrant une période de la durée restante après la date de la
cessation de toutes les souscriptions. Cependant, aucun remboursement ne
sera accordé pour le mois courant.
1.4 A moins que votre compte soit résilié en raison de votre non-paiement,
vous continuerez à pouvoir accéder et télécharger les informations fournies,
entré ou téléchargées sur le service par vous ou en votre nom ("Données")
pendant 30 jours après la date effective d'expiration ou la résiliation.
Après cette période de 30 jours ou si votre compte est résilié en raison
de votre non-paiement, Nicoka n'aura aucune obligation de maintenir toutes
les données et sera par la suite, sauf si la loi l'interdit, supprimer
toutes vos données dans les systèmes de Nicoka ou autrement en sa possession
ou sous son contrôle.
1.5 Nicoka peut déclasser, résilier ou suspendre votre accès au Service
sans préavis et sans responsabilité si une telle action est basée sur (a)
de bonne foi de Nicoka que vous avez violé une disposition du présent Accord
(y compris le défaut de faire un paiement à raison), ou (b) vous ne vous
connectez pas à ou utiliser le service pour une période de 180 jours de
plus si vous avez un compte payant, et pour une période de 60 jours ou
plus si vous avez un compte gratuit.
Modification of this Agreement
2.1 The Service may be made available in free or paid versions at different
levels. Not all features and functionality of the Service may be available
in each version or level. Nicoka reserves the right, in its sole discretion,
to modify, add, or remove portions and/or functionality of the Service,
or to modify, add, or remove portions of this Agreement at any time by
making such modified Agreement available to you. The revised Agreement
will be effective immediately upon being made available to you, except
that in the event any such modification materially alters your rights hereunder,
Nicoka will attempt to notify you directly by sending a message to the
email address that you provided to us. Your use of the Service after modifications
to this Agreement become effective constitutes your binding acceptance
of such changes. In such case of a material modification, you will be required
to affirmatively agree to such modified Agreement. You can also review
the most current version of this Agreement at any time at:
http://www.Nicoka.com/terms.php. If you are dissatisfied with the
terms of the Agreement or any modifications thereof, then you agree that
your sole and exclusive remedy is to discontinue any use of the Service.
Usage Rights; Restrictions; Support
3.1 During the Term, Nicoka grants you a limited, non-transferable, non-sublicensable,
non-exclusive right to access and use the hosted software products and
related documentation included in the Service and all modifications and/or
enhancements to any of the foregoing (“Software”) via a web browser or
other device owned or controlled by you for your internal business use.
Nothing in this Agreement obligates Nicoka to deliver or make available
any copies of computer programs or code from the Software to you, whether
in object code or source code form. You agree to use the Service only in
compliance with all applicable local, state, national, and international
laws, rules and regulations (“Applicable Law”). You shall not, and shall
not agree to, and shall not authorize, encourage or permit any third party
use the Service to upload, transmit or otherwise distribute any content
that is unlawful, defamatory, harassing, abusive, fraudulent, obscene,
threatening, abusive, hateful, contains viruses, or is otherwise objectionable
as reasonably determined by Nicoka;
use the Service for any fraudulent or inappropriate purpose;
attempt to decipher, decompile, delete, alter or reverse engineer any
of the Software;
duplicate, make derivative works of, reproduce or exploit any part of
the Service without the express written permission of Nicoka;
use any robot, spider, other automated device, or manual process to monitor
or copy any content from the Service; or
rent, lease, distribute, or resell the Software, or use the Software for
developing a competitive solution (or contract with a third party to do
so), or remove or alter any of the logos, trademark, patent or copyright
notices, confidentiality or proprietary legends or other notices or markings
that are on or in the Software or displayed in connection with the Service.
3.2 Nicoka shall: (i) provide you with basic support in connection with
your use of the Service at no additional charge, and with upgraded support
if purchased separately, (ii) use commercially reasonable efforts to make
the Service available 24 hours a day, 7 days a week, except for: (a) planned
downtime (which Nicoka shall schedule to the extent practicable during
the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time),
or (b) any unavailability caused by circumstances beyond Nicoka’s reasonable
control, including acts of God, acts of government, floods, fires, earthquakes,
civil unrest, acts of terror, strikes or other labor problems (other than
those involving our employees), Internet service provider failures or delays,
or denial of service attacks, and (iii) provide the Service only in accordance
with Applicable Law.
3.3 Nicoka shall maintain commercially reasonable administrative, physical,
and technical safeguards for protection of the security, confidentiality
and integrity of your Data. Nicoka shall not (a) disclose your Data except
as compelled by Applicable Law or as you expressly authorize in writing,
or (b) access your Data except to provide the Service and prevent or address
service or technical problems, or at your request in connection with customer
support matters. In the event we are compelled by Applicable Law to disclose
your Data, we will provide you with notice thereof, if permitted by Applicable
3.4 If you integrate with Nicoka using our API, you must use efficient
programming, which will not cause too many requests to be made in too short
a period, as determined by Nicoka. Nicoka reserves the right to throttle
your API connections, or suspend or terminate your Nicoka account.
4.1 Your subscription to the Service renews automatically for the same
term selected upon initial payment (e.g., month-to-month, annual, etc.).
You may change your subscription term at any time by contacting us using
one of the methods set forth in the Contact Information section below.
Your credit card will be charged once a month for monthly subscriptions
and once a year (upon the anniversary of your subscription date) for annual
subscriptions. Nicoka will email you a receipt when your card has been
charged. If your card cannot be charged, your access to Services may be
suspended and you will need to update your card information in order to
resume use. There will be no refunds or credits for partial months of service,
upgrade/downgrade accounts, or for months unused with an open account.
4.2 Yearly subscription pricing requires a one-year minimum commitment.
If you cancel your subscription, or your subscription is suspended for
nonpayment, before the end of the one-year commitment period, you will
no longer qualify for yearly subscription pricing and you will be charged
the difference between the monthly and yearly commitment pricing for the
number of months your subscription was active.
4.3 All fees are exclusive of all taxes or duties imposed by governing
authorities. You alone are responsible for payment of all such taxes or
4.4 Nicoka may at any time, upon notice of at least 90 days or a longer
period if required by Applicable Law, change the price of your subscription
or any part thereof, or institute new charges or fees. Price changes and
institution of new charges implemented during your one-year subscription
period will come into effect for any subsequent one-year subscription periods
and to all new subscribers after the effective date of the change. If you
do not agree to any such price changes, then you must cancel your subscription
and stop using the Service prior to the commencement of the renewal subscription
period for which the price change applies.
Intellectual Property Rights
5.1 As between the parties, Nicoka owns and shall retain all right, title
and interest in and to (a) the Software and the Service, including all
intellectual property rights, and (b) transactional and performance data
related to your use of the Service. Nicoka may collect, use and disclose
all such transactional and performance data for its business purposes (including
software use optimization and product marketing) provided that such use
does not reveal your identity, any of your confidential information or
any personally identifiable information that belongs to you.
5.2 You retain all right, title and interest to your Data. Nicoka has
no right, title or interest in any personally identifiable information
related to your Data.
5.3 You have no obligation to give Nicoka any suggestions, enhancement
requests, recommendations, comments or other feedback (“Feedback”) relating
to the Service. To the extent Nicoka receives any Feedback from you, Nicoka
may use and include any such Feedback to improve the Services or for any
other purpose. Accordingly, if you provides Feedback, you agrees that Nicoka
shall own all such Feedback and Nicoka and its affiliates, licensees, clients,
partners, third-party providers and other authorized entities may freely
use, reproduce, license, distribute, and otherwise commercialize the Feedback
in the Service or other related technologies, and you hereby assign, irrevocably,
exclusively and on a royalty-free basis, all such Feedback to Nicoka.
5.4 From time to time during the Term, Nicoka may develop, author or prepare
custom documents, designs, computer programs, computer documentation and
other tangible materials (“Deliverables”), in each case pursuant to a statement
of work executed by you and Nicoka. Nicoka shall own and retain all right,
title and interest in and to such Deliverables and hereby grants to you
a limited, non-transferable, non-sublicensable, non-exclusive license for
you to use such Deliverables for your internal use during the Term. Nicoka
may reuse any Deliverables, provided that such use does not reveal your
identity or your confidential information.
6.1 During the Term, Nicoka may disclose your name as a customer of Nicoka
and/or subscriber of the Service, and you hereby grant Nicoka the right
to display your name and logo in its marketing materials and on Nicoka’s
public website, in each case in accordance with any branding guidelines
you may provide to Nicoka.
Warranties and Liability
7.1 Nicoka represents, warrants, and covenants as follows: (a) Nicoka
possesses all rights necessary to grant you the rights set forth in this
Agreement; (b) Nicoka uses commercially reasonable measures to screen for
time-bombs, viruses, technically limiting devices, and/or technically limiting
code; (c) the Software will perform substantially in accordance with the
technical requirements documents that are generally provided by Nicoka
in connection with the Software (“Documentation”); and (d) any professional
services performed for you by Nicoka will be performed in a professional
and workmanlike manner, with the degree of skill and care that is required
by sound professional procedures and practices.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE
LIMITED WARRANTY PROVIDED ABOVE, Nicoka HEREBY DISCLAIMS ALL OTHER WARRANTIES,
EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION,
DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. Nicoka DOES NOT WARRANT
THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
7.3 EXCEPT FOR EITHER PARTY’S BREACH OF ITS INDEMNIFICATION OBLIGATIONS
HEREUNDER OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A)
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT,
AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT
TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, TO THE FEES COLLECTED BY Nicoka FROM YOU PURSUANT TO THIS AGREEMENT
IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE.
8.1 External Breach: In the event of a security breach by anyone other
than your employee, contractor or agent, Nicoka will: (a) initiate remedial
actions that are consistent with industry standards; and (b) notify you
of the security breach, its nature and scope, the nature and scope of remedial
actions Nicoka will undertake, and the timeline within which Nicoka expects
to remedy the breach.
8.2 Internal Breach: In the event of a security breach by your employee,
contractor or agent, you shall have sole responsibility for initiating
remedial actions and shall notify immediately Nicoka of the breach and
steps you will take to remedy the breach.
9.1 You agree to indemnify, defend and hold harmless Nicoka, and its affiliates,
officers, agents, and employees from and against any costs, damages, expenses
(including reasonable attorneys’ fees), judgments, losses and other liabilities
(including amounts paid in settlement) (“Liabilities”) incurred as a result
of any third-party action, claim, demand, proceeding or suit (“Claim”)
to the extent arising from or connected with your use of the Software and/or
Service in breach of this Agreement.
9.2 Nicoka agrees to indemnify, defend and hold harmless you, and your
affiliates, officers, agents, and employees from and against any Liabilities
incurred as a result of any third-party Claim to the extent arising from
or connected with an allegation that your use of the Software and/or Service
in accordance with this Agreement infringes the intellectual property rights
of a third party. Notwithstanding the foregoing, in no event shall Nicoka
have any obligations or liability arising from: (a) use of the Software
and/or Service in a modified form or in combination with materials or software
not furnished by Nicoka, and (b) any content, information or data provided
by you, your end users, or other third parties.
9.3 A party seeking indemnification hereunder shall (a) promptly notify
the other party in writing of the Claim, (b) give the indemnifying party
sole control of the defense of such Claim and all negotiations for the
compromise or settlement thereof (provided that if any settlement requires
any action or admission by the indemnified party, then the settlement will
require the indemnified party’s prior consent), and (c) provide the indemnified
party with all reasonable cooperation, information and assistance in connection
with such Claim; provided, however, that failure by the indemnified party
to provide prompt notice of a Claim; grant such sole control; and/or provide
such cooperation, information and assistance shall not relieve the indemnifying
party of its obligations under this Article 9, except to the extent that
the indemnifying party is materially prejudiced by such failure. The indemnified
party may be represented by its own counsel, at its own expense.
10.1 If you use the iOS version of the Service, you acknowledge the statements
set forth in this Section. This Agreement is between you and Nicoka only,
not with Apple Inc. (“Apple”), and Apple is not responsible for the Service
or the functionality or content thereof. Apple has no obligation whatsoever
to furnish any maintenance and support services with respect to the Service.
In the event of any failure of the Service to conform to any applicable
warranty and if you purchased a subscription to the Service through Apple,
then you may notify Apple and Apple will refund the purchase price for
the relevant Service to you; and, to the maximum extent permitted by Applicable
Law, Apple has no other warranty obligation whatsoever with respect to
the Service. As between Apple and Nicoka, Nicoka is responsible for any
claims, losses, liabilities, damages, costs or expenses attributable to
any failure of the Service to conform to any warranty, subject to the terms
of this Agreement. Apple is not responsible for addressing any claims brought
by you or any third party relating to the Service or your possession and/or
use of the Service, including, but not limited to: (a) product liability
claims; (b) any claim that the Service fails to conform to any applicable
legal or regulatory requirement; and (c) claims arising under consumer
protection or similar legislation. Apple is not responsible for the investigation,
defense, settlement and discharge of any third party claim that your possession
and use of the Service infringes that third party’s intellectual property
rights. You agree to comply with any applicable third party terms, when
using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries
of this Agreement, and upon your acceptance of this Agreement, Apple will
have the right (and will be deemed to have accepted the right) to enforce
this Agreement against you as a third party beneficiary of this Agreement.
10.2 This Agreement encompass the entire agreement between you and Nicoka
with respect to the subject matter hereof and supersede all prior representations,
agreements and understandings, written or oral. This Agreement may only
be altered, amended or modified by an instrument executed by both parties.
The failure of Nicoka to exercise or enforce any right or provision of
this Agreement shall not constitute a waiver of such right or provision.
If any part of this Agreement is found invalid or unenforceable by a court
of competent jurisdiction, the remainder of the Agreement shall be interpreted
so as to reasonably effectuate the intention of the parties, and shall
not affect the validity and enforceability of any remaining provisions.
No purchase order or other form submitted by you will modify, supersede,
add to or in any way vary the terms of this Agreement. As used herein,
the words “including,” “included” and “includes” mean inclusion without
limitation. You may not assign or otherwise transfer any of your rights
or obligations under this Agreement without Nicoka’s prior written consent.
If you have any questions regarding this Agreement please contact Nicoka
at tos (@) Nicoka dot com.
13.1 If you have any questions about the Service or this Agreement, you
may call us at
+33156331543 email us at email@example.com or
write to us at:
56 rue de Londres,