1.4 ARBITRATION NOTICE AND CLASS ACTION WAIVER FOR CUSTOMERS LOCATED IN THE UNITED STATES: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 11 (DISPUTE RESOLUTION, GOVERNING LAW AND ARBITRATION) BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NOSTO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. THE SERVICE
2.1 The Service is a cloud service intended for use in online web shops. The Service collects and analyzes an end user’s online behaviour and makes it possible to calculate and automatically represent different types of intelligent product recommendations; create, manage and optimize advertising campaigns on social media channels; and offer other marketing automation functionalities. You can find a more comprehensive description of the Service and its features at www.nosto.com, as amended from time to time.
2.2 The Service is designed to help the Customer increase their sales, but the Customer remains responsible for how the Service is used and for achieving the intended goals and results. It is the responsibility of the Customer to ensure that the output and results of the Service meet the Customer’s expectation and requirements.
2.3 Nosto may provide user assistance to the Customer upon reasonable request. If required, the Customer must allow Nosto to access the necessary information and facilities, and, to the best of its ability, also otherwise contribute to the delivery of the Service. If reasonably requested by the Customer, Nosto officials can modify the Customer’s recommendation templates, marketing campaigns, Customer online store and other settings based on mutually agreed instructions. All assistance shall be provided during Nosto’s standard business hours and at Nosto’s reasonable discretion.
2.4 Unless otherwise agreed in writing, you may use the Service solely in connection with, and for the purposes of your Online Store. You may represent and allow access to the displays generated with the Service on your Online Store only. Creating hyperlinks to the displays generated with the Service from a website other than your Online Store’s website is prohibited. Any modifications to Nosto scripts, plugins or other parts of Service in an attempt to misuse or abuse the Service and/or bypass the obligation to pay Nosto fees for services rendered is forbidden.
2.5 Nosto is constantly developing the Service. Therefore, we may amend features of the Service by removing, modifying or adding existing or new features without giving you notice. We will, however, inform you of any material changes in the Service by posting a notice at www.nosto.com.
4. YOUR ONLINE STORE
4.1 You are solely responsible for your Online Store and your conduct and any data, text, links, information, image and/or any other material (“Content”) that you choose to display through the Service on your Online Store.
5. RIGHT TO USE AND PROPRIETARY RIGHTS
5.2 Customer shall not
i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Nosto Software in any form or media or by any means;
iii) use the Service for unlawful purposes or against the terms and policies applicable to any social media channels (for example Facebook) in which the advertising campaigns are conducted;
iv) access all or any part of the Service in order to build a product or service which competes with the Service;
v) attempt to obtain, or assist third parties in obtaining, unauthorized access to the Service;
vi) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise make the Service available to any unauthorized third party; or
vii) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the Service (except and only to the extent any foregoing restriction is prohibited by applicable law).
5.4 In case the Customer comments on the Service or provides suggestions for improving the Service, the Customer agrees that all such comments, suggestions and ideas thereof will be fully assigned to Nosto and hence Nosto shall own all rights to use and incorporate them into the Service.
5.5 The Service Provider is entitled to use Customer’s name and the use of the Service for reference purposes.
6. CUSTOMER DATA
6.1 When you use the Service, our servers (which may be hosted by a third party service provider, such as Amazon Web Services) collect information automatically from your Online Store. We will act as the data controller with respect of the personal data we may have collected from you during registration or provision of support services, if any. To the extent we collect any personal data of end users of your Online Store, we will act as your data processor with respect to such personal data.
6.2 For more information on our data collection practices of your personal data and the end users of your Online Store, please review our Data Processing Addendum at www.nosto.com/dpa/.
6.3 We do not knowingly collect or solicit personally identifiable information from individuals under sixteen (16) years of age; if you or any of your end users are under sixteen (16), please do not attempt to register for or otherwise use the Service or send us any personal information. If we learn we have collected personal information from an individual under sixteen (16) years of age, we will delete that information as quickly as possible. If you believe that an individual under sixteen (16) may have provided us personal information, please contact us at firstname.lastname@example.org.
7. LIMITED WARRANTY
7.1 We, our officers, directors, employees and our suppliers provide the Service on a reasonable effort basis. While we endeavour to ensure that the Service is available at all times, we make no warranty that the Service will meet your requirements, or that the Service will be uninterrupted, timely, secure or error-free, nor do we make any warranty as to the results that may be obtained from the Service or as to the accuracy or reliability of any information obtained through the Service, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Service. Products and services purchased or offered (whether or not following such recommendations and suggestions) as a result of use of the Service are provided “AS IS” and without any warranty of any kind from Nosto or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). We warrant that in the event that the Service is not available or that there are errors in its operation we will use every reasonable effort to remedy the event. This is your sole remedy in the event of interruption or errors in the Service.
7.2 THE SERVICE IS PROVIDED BY NOSTO (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS. THERE ARE NO OTHER WARRANTIES THAN WHAT IS EXPRESSLY STATED IN THIS SECTION AND WE DO NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE) REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, TO THE GREATEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7.3 The Customer acknowledges that the use of the Service might be dependent on a social media channel (for example Facebook) in which the Customer’s advertising campaigns are carried out and that the actions of the Customer and third-party data providers may also affect the use of the Service. Nosto does not accept any liability for the operation and function of any third party products and services or acts or omissions of any third party including but not limited to the third party data providers, Customer or social media channel or any third parties who operate in such a social media channel in which Customer’s advertising campaigns are carried out. Furthermore, Nosto does not accept any liability for the use of the Service contrary to the Facebook or other social media channel terms and policies.
8.1 The Parties shall not at any time during the Term of the Agreement or thereafter use (except as required to perform its obligations hereunder) or disclose to any person or entity any Confidential Information learned or obtained by a Party during the term of the Agreement.
8.2 As used herein, the term “Confidential Information” means information disclosed to the other Party or known by that Party as a consequence of or through its dealings with Nosto or one of its affiliates under the Agreement which in any way relates to (i) a Party’s or one of its affiliates’ Customers and suppliers, including but not limited to, the identity, purchase patterns, business practices, contact persons and records of any Customer or supplier, (ii) a Party’s or one of its affiliates’ business arrangements, including but not limited to, systems and methods of doing business and (iii) a Party’s or one of its affiliates’ business, technical or product information, including but not limited to, financial data, know-how, trade secrets, R&D road map, methods of operation, pricing, programs, merchandising and distribution.
9. LIABILITY LIMITATION
The aggregate total liability of Nosto towards you in respect of any cause of action relating to or arising out of the Service is at all times limited to the fees and expenses paid by you to us hereunder during the three (3) months immediately prior to the date on which the cause of loss or damage giving rise to the claim arose. To the fullest extent allowed by applicable law, in no event and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall Nosto be liable for any loss of production, loss of or corruption to software or data, loss of profits or of contracts, loss of business or of revenues, loss of operation time, loss of goodwill or reputation, LOSSES ARISING OUT OF MATTERS BEYOND NOSTO’S REASONABLE CONTROL, whether caused directly or indirectly, or for any indirect, special, incidental, punitive or consequential loss, damage, cost or expense whatsoever. The aforesaid limitations do not apply to loss or damage arising out of gross negligence or willful misconduct. Some states do not allow the exclusion or limitation of incidental or consequential or certain other damages, so the above limitation and exclusions may not apply to you.
11. DISPUTE RESOLUTION, GOVERNING LAW AND ARBITRATION
11.1 In the event a dispute arises between you and us, please email us at email@example.com, and we will work quickly towards a solution.
12. TERM AND TERMINATION
12.1 In case of Incubator plans only, where a separate Order Form or similar document is not executed, a party may terminate the Service at any time upon 30-day prior written notice to the other Party. Customer’s written termination notice shall be sent to firstname.lastname@example.org. Nosto’s written termination notice shall be sent to the email address you have provided upon registration.
12.2 Unless earlier terminated in accordance with this Section 12 (Term and Termination), upon completion of the Initial Service Term (as defined in the Order Form), the Agreement will renew for successive 12-month terms, unless either party provides written notice of non-renewal no less than thirty (30) days prior to expiration of the end of the then-current term. The Initial Service Term and any renewal thereof are collectively referred to in this Agreement as the “Term”.
12.3 During the Term, Nosto may terminate the Agreement or suspend Your use of the Service upon written notice in the event that Customer fails to pay any fees due hereunder in a timely manner, or if Customer’s Online Store becomes, or is likely to become, the subject of a claim of intellectual property or data protection infringement.
12.4 Only in case of a material breach, the non-breaching party may terminate the Service with immediate effect by a written notice if the other party commits a material breach of the Agreement and fails to remedy the same within fourteen (14) days after receipt of a written demand from the non-breaching party to cure the breach. Customer’s written termination notice shall be sent to email@example.com.
12.5 Upon termination, except in situations of Nosto’s material breach, all fees payable to Nosto until the end of the then-current Agreement term, if any, will become immediately due and payable, your right to use the Service ceases and we will remove your account.