Terms of Service

Welcome to the Nuvolex Platform (defined below). By using it, you are agreeing to these Terms of Use (defined below). Please read them carefully. If you have any questions, contact us at support@nuvolex.com.

Acceptance of Terms of Use

Nuvolex, Inc. (“Nuvolex” “we” or “us” or “our”) owns and operates the website located at http://www.nuvolex.com (the “Site”), and the platform (the “Platform”) offered by us through the Site.

By using the Platform, and the services offered through the Platform, you agree to these Terms of Use (defined below) and any additional terms applicable to certain programs in which you may elect to participate. You also agree to our Privacy Policy, located at http://www.nuvolex.com/privacy, and acknowledge that you will regularly visit the Terms of Use (defined below) to familiarize yourself with any updates. The Privacy Policy, together with these terms of use, and any other terms contained herein or incorporated herein by reference, are collectively referred to as the “Terms of Use.”

IF YOU DO NOT AGREE TO THESE TERMS OF USE, IMMEDIATELY STOP USING THE PLATFORM.

1. Introduction

Through the Site, Nuvolex provides access to the Platform to (a) Clients, which either are (i) entities that have executed agreements or orders (including online enrollment forms) for the Platform directly with Nuvolex (each a “Service Order Form”) and have accepted these Terms of Use (the “Nuvolex Customer”) or (ii) entities that have executed an agreement with a Nuvolex Customer to use the Platform in accordance with these Terms of Use, and (b) users authorized by a Client to access and use the Platform for the benefit of the applicable Client (“Authorized Users”). Clients may be companies or sponsoring organizations such as businesses, universities and government agencies. A Customer may create individual Authorized User accounts for individuals within the Customer to use the Platform. Each Customer agrees that its Authorized Users shall be required to comply with the Terms of Use, and such Customer shall be liable for any breach of these Terms of Use by any of its Authorized Users.

The following Terms of Use set forth the entire agreement regarding the use of the Site, the Platform and any Software (as defined below). Certain features of the Platform may be subject to additional guidelines, terms, or rules, which will be posted on the Site. All such additional guidelines, terms, and rules are hereby incorporated by reference into this Agreement.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING AND/OR USING THE PLATFORM, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AN AUTHORIZED USER OF A CLIENT, (B) IF YOU ARE THE FIRST AUTHORIZED USER OF A CLIENT TO REGISTER FOR AN ACCOUNT ON THE SITE OR IF YOU ARE CREATING A MASTER ACCOUNT, YOU HAVE THE AUTHORITY TO BIND THE CLIENT TO THIS AGREEMENT, AND (C) YOU AGREE TO THIS AGREEMENT. IF YOU CANNOT MAKE ANY OF THE FOREGOING REPRESENTATIONS AND WARRANTIES, DO NOT ACCESS THE SITE OR USE THE PLATFORM.

2. License to and Description of the Platform and Software

a. Nuvolex hereby grants Client and its Authorized Users a nonexclusive and nontransferable license to access and use the Platform solely during the term of this Agreement and in accordance with this Agreement, and solely for internal business purposes. Nuvolex will provide Client with access to the Platform identified on a Service Order Form. Nuvolex may, from time to time in the ordinary course of business, refine, modify, or improve current functionality or develop additional functionalities for which it reserves the right to charge additional fees.

b. Client, and each Authorized User, agrees not to: (i) permit any third party to access or use the Platform; (ii) license, sublicense, sell, resell, transfer, assign, or distribute the Platform; (iii) modify or make derivative works based upon the Platform; (iv) introduce software or automated agents or scripts to the Platform so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Platform; (v) “frame” or “mirror” any content contained on, or accessible from, the Platform on any other server or Internet-based or Internet-connected device or service; or (vi) reverse engineer or access the Platform in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Platform, or (C) copy any ideas, features, functions or graphics of the Platform.

c. Content contained in the Platform, excluding User Content (as defined below), is referred to as “Nuvolex Content.” Nuvolex Content may not be modified, republished, reproduced, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of Nuvolex. Client and all Authorized Users must abide by all copyright notices, information, or restrictions related to any Nuvolex Content.

d. Nuvolex reserves all rights of ownership in the Platform not expressly granted to Client or any Authorized User in writing herein.

e. Nuvolex collects, uses, and discloses personally identifiable information of Client and Authorized Users in accordance with the terms set forth below and the Nuvolex Privacy Policy, available at http://www.nuvolex.com/privacy.

f. In using the Platform, Client may have the opportunity to download software from Nuvolex. If Client elects to download the software (the “Software”), then subject to compliance with these Terms, Nuvolex grants Client and its Authorized Users a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to use the Software made available through the Platform. Under no circumstance may Client or its Authorized Users (i) permit any unrelated third parties to use the Platform or Software, (ii) process or permit to be processed the data of any other party, or (iii) use the Software in the operation of a service bureau. In addition, Client and its Authorized Users agree that only Nuvolex shall have the right to alter, maintain, enhance or otherwise modify the Software. Neither Client nor any Authorized User may disassemble, decompile or reverse engineer the Software or attempt to do the same, nor may it permit or assist any third party to disassemble, decompile or reverse engineer the Software. By downloading the Software, Client and its Authorized Users represent and warrant that (i) all information provided by Client to Nuvolex during the registration process for the Software is true and accurate, and (ii) that it is duly authorized to download the Software. Client and its Authorized Users agree that Nuvolex owns all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software. No title to the Software is transferred hereby and Client’s and its Authorized Users’ rights hereunder are strictly limited as set forth herein. Under no circumstances shall Client or any Authorized User sell, license, publish, display, distribute or otherwise transfer to a third party the Software or any copy thereof, in whole or in part, without Nuvolex’s prior written consent. Failure to comply with these terms with respect to any Software may result in Nuvolex discontinuing Client’s and/or its Authorized Users’ access to and use of the Software without notice or recourse by Client. The license to the Software shall continue until termination of the Account, or earlier as set forth herein.

3. Ownership and License Rights to Content on the Platform

a. Ownership of Content. Authorized Users retain ownership of all intellectual property rights in the information and content uploaded by them to the Platform (“User Content”), and Nuvolex and/or third parties retain ownership of all intellectual property rights in all Content other than User Content.

b. User Content License to Nuvolex. When an Authorized User uploads or transfers User Content to Nuvolex through the Platform, it gives Nuvolex a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Platform are available), and create derivative works of such User Content. The rights each Authorized User grants in this license are for the limited purpose of operating the Platform in accordance with their functionality, improving the Platform, and allowing Nuvolex to develop a new Platform. The reference in this license to “derivative works” is not intended to give Nuvolex itself a right to make substantive editorial changes or derivations, but does enable Authorized Users to redistribute User Content from one area to another in a manner that allows Authorized Users to, e.g., add their own text or other content to another Authorized User’s User Content.

c. Each Authorized User also agrees that this license includes the right for Nuvolex to make all User Content available to third parties selected by Nuvolex, so that those third parties support Nuvolex in its provision of the Platform. This license to your User Content continues even if the Authorized User stops using the Platform.

d. Each Authorized User also agrees that it will respect the intellectual property rights of others, and represent that it has all of the necessary rights to grant Nuvolex this license for all User Content it submits to the Platform.

e. Content License to Authorized Users. Nuvolex grants each Authorized User a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, and create derivative works of User Content solely in connection with such Authorized User’s use of, and in accordance with the functionality and restrictions of, the Platform.

f. Access to User Content. All User Content entered by an Authorized User is available to the Client (and its representatives) that set up the Authorized User account. Each Client may, in its discretion, make User Content available to other Authorized Users as described in the Privacy Policy. User Content entered by an Authorized User will remain available within the Platform as described in these terms even after termination of an Authorized User’s account.

4. Client Responsibilities

Client and/or each Authorized User (as applicable) is responsible for obtaining and maintaining all equipment and services needed for access and use of the Platform. Client, and each Authorized User, agrees not to use the Platform to: (a) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, constitutes hate speech, or is otherwise offensive or objectionable; (b) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (c) transmit any material that contains adware, malware, spyware, 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; (d) impersonate any person or entity, or otherwise misrepresent Client’s affiliation with a person or entity; or (e) interfere with or disrupt Nuvolex servers or networks connected to Nuvolex, or disobey any requirements, procedures, policies, or regulations of networks connected to Nuvolex.

The Platform may integrate other third-party services (for example, Google Apps, Dropbox, WebEx, Twitter or LinkedIn) allowing Customer and Authorized Users to manage these cloud services within the Platform. Customer and each Authorized User shall create an account and accept the terms of use of such third-parties services prior to being able to manage these third-party services within the Platform. If it is determined at any time that Customer or any Authorized User is in breach of this Section 4, Nuvolex may suspend services until the issue is resolved to Nuvolex’&s satisfaction, if the Customer does not first remedy the issue within the cure period set forth in Nuvolex’&s notice to the Customer.

5. Marks

“Nuvolex” and the Nuvolex logo, as well as certain other of the words and logos displayed on the Nuvolex website or on Nuvolex Content, constitute trademarks, trade names, or service marks “Marks” of Nuvolex or other entities. Client is not authorized to use any such Marks without prior written consent from Nuvolex. Ownership of all such Marks and the goodwill associated therewith remains with Nuvolex or those other entities.

6. Links

Nuvolex’s inclusion of a link via the Platform to any other Web site or Internet resource is for Client’s convenience only and does not signify Nuvolex’s endorsement of such other Web site or Internet resource or its contents. Nuvolex shall have no responsibility or liability for any information, software, or materials obtained from third-party Web sites or Internet resources.

7. Passwords and Security; Trial Periods

When Client registers to use the Platform, Client will be asked to provide a user name and password for a master account (“Master Account”). Using the Master Account, Client can create, modify, or delete accounts for Authorized Users (each, a “User Account”) up to the maximum number specified by Nuvolex. Client’s subscription is personal to Client, and Client and each Authorized User are prohibited from sharing their user names and passwords. Client and each Authorized User are responsible for maintaining the confidentiality of all passwords for the Master Account and User Accounts, and Client and its Authorized Users are exclusively responsible for all activities that occur under such passwords. Client and each Authorized User agrees to immediately notify Nuvolex of any unauthorized use of such password or any other breach of security related to the Platform of which Client or such Authorized User becomes aware. Nuvolex reserves the right, with notice to Client, to change the password to the Master Account or any User Account, if Nuvolex believes that the applicable password is no longer secure.

If Client registered for a trial use of the Platform (the period specified as applicable to this trial use in connection with your trial enrollment, the “Trial Period”), Client must decide to purchase the Platform within the Trial Period in order to retain any content posted or uploaded by Authorized Users under Client’s account during the Trial Period. If Client does not purchase the Platform by the end of the Trial Period, Nuvolex will have no obligation to retain any content or materials, including User Content, posted or uploaded under Client’s account.

8. Termination

Nuvolex may terminate the Terms of Use and Client’s account at any time and for any reason. In the event Nuvolex terminates the Terms of Use and Client’s account other than as a result of Client’s breach or violation of the Terms of Use, then to the extent Client has pre-paid any amounts, Nuvolex will promptly refund to Client the pro-rata portion of such prepaid unused fees.

Upon termination, Nuvolex reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Client; (b) delete any User Content under Client’s account; (c) prohibit access to the account by Client and each Authorized User under Client’s account, including without limitation by deactivating passwords; and (d) refuse future access to the Platform by Client and each Authorized User under Client’s account.

9. Warranty Disclaimer

NUVOLEX AND ITS SUPPLIERS PROVIDE THE PLATFORM, ANY SOFTWARE AND SERVICES “AS IS” AND “AS AVAILABLE” AND DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. NUVOLEX AND ITS SUPPLIERS DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PLATFORM. NUVOLEX AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE PLATFORM OR SOFTWARE WILL BE UNINTERRUPTED, RELIABLE, OR ERROR-FREE. NUVOLEX DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE COLLECTION, STORAGE, REPRODUCTION, AND PROVISION OF THE USER CONTENT TO CLIENT AND CLIENT’S USE OF USER CONTENT.

10. Limitation of Liability

IN NO EVENT SHALL NUVOLEX, ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO: (A) YOUR USE OF THE PLATFORM, ANY SOFTWARE, THE CONTENT, USER CONTENT AND OTHER INFORMATION CONTAINED IN THE PLATFORM; (B) YOUR INABILITY TO USE THE PLATFORM; (C) MODIFICATION OR REMOVAL OF CONTENT SUBMITTED ON THE PLATFORM; OR (D) THESE TERMS OF USE. IN NO EVENT WILL NOVOLEX’S LIABILITY EXCEED THE LESSER OF $10,000 OR THE FEES PAID BY YOU TO NUVOLEX IN THE PRIOR SIX MONTH PERIOD. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, THE PLATFORM OR ANY SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OR THE CAUSE OF ACTION IS PERMANENTLY BARRED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

11. Indemnification/Release

You agree to defend, indemnify and hold harmless Nuvolex, its subsidiaries and affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to: (a) any User Content submitted or posted by you, in connection with the Platform, or any use of the Platform in violation of these Terms of Use; (b) fraud you commit or your intentional misconduct or gross negligence; or (c) your violation of any applicable law or rights of a third-party.

12. Force Majeure

Nuvolex shall be excused from performance under these Terms of Use, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (f) other causes beyond the reasonable control of Nuvolex.

13. General

a. Each party, at its sole respective cost and expense, shall comply with all present and future federal, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Platform (collectively “Laws”) including, without limitation, all data privacy and processing Laws, and all intellectual property and licensing Laws.

b. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer-employee, or joint venture relationship between the parties. There is no fiduciary duty or special relationship of any kind between the parties to this Agreement. Each party expressly disclaims any reliance on any act, word, or deed of the other party in entering into this Agreement.

c. If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. “Includes” and “including” are not limiting. This Agreement may only be modified as provided for herein, and otherwise cannot be modified, terminated or amended in any respect orally or by conduct of the parties without written agreement by the parties.

d. Nuvolex may freely assign this Agreement to any other party without consent or notice. A Client or Authorized User may assign this Agreement to a third party only with Nuvolex’s express prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.

e. Nuvolex may, in its sole discretion, change this Agreement at any time. Nuvolex may notify Client by conspicuously posting notice of such changes on its Site, or sending e-mail to Client and/or Authorized Users. Client and each Authorized User is responsible at all times for updating its Master Account or User Accounts, as applicable, to provide to Nuvolex its most current e-mail address. If the last e-mail address that Client or an Authorized User has provided to Nuvolex is not valid, or for any reason is not capable of delivering to Client or the Authorized User the notice described above, Nuvolex’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Nuvolex reserves the right to modify, suspend, or discontinue the Platform with or without notice to Client. Nuvolex will notify Clients via the Platform of any significant updates thereto. Nuvolex shall not be liable should Nuvolex exercise its right to modify, suspend, or discontinue the Platform.

f. This Agreement shall be construed under the laws of the State of California, notwithstanding any choice-of-law principle that might dictate a different governing law. Each party irrevocably agrees, consents and submits to the exclusive jurisdiction of and venue in the federal and state courts located in San Jose, California with respect to any dispute arising out of or relating in any way to this Agreement.

14. Additional Disclosures

No waiver by either you or Nuvolex of any breach or default or failure to exercise any right allowed under these Terms of Use is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Terms of Use. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of these Terms of Use invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Terms of Use, and the remaining portions of these Terms of Use shall continue in full force and effect.

You are contracting with Nuvolex, Inc. Correspondence should be directed to: Nuvolex, Inc. 459 Hamilton Avenue, Palo Alto, California 94301

If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

The provisions of these Terms of Use apply equally to and are for the benefit of Nuvolex, its subsidiaries, affiliates and licensors, and each shall have the right to assert and enforce such provisions directly.