Terms of Service
Last updated: March 23, 2016
By accepting these Terms of Service (the “Agreement”) or by accessing or using the Services or NivelSonic Hardware (as defined below), you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you are entering into this Agreement as an individual or on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services or NivelSonic Hardware.
NivelSonic, Inc. (“NivelSonic”) may change this Agreement from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the NivelSonic website. You can review the most current version of this Agreement at any time at in this page.. The revised terms will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Services or NivelSonic Hardware after that date, your use will constitute acceptance of the revised Agreement. If any change to this Agreement is not acceptable to you, your only remedy is stop using the Services and NivelSonic Hardware and send a cancellation email to info@NivelSonic.com.
1.1 "Customer Data" means any information passed to or from NivelSonic Hardware, excluding any framing and security layers provided by NivelSonic that wrap or are related to such information.
1.2 "Customer" means the individual (and the organization such individual represents) that uses the Services.
1.3 "NivelSonic Hardware" means the NivelSonic Card and NivelSonic Modules and any other hardware products made available by NivelSonic.
1.4 "Firmware" is any software developed by NivelSonic that is included on a NivelSonic Device, which together are designed to be compatible with the Services and NivelSonic Hardware.
1.5 "Services" means the services offered by NivelSonic that are designed to allow Customer to track water levels, collectively, the NivelSonic mobile app and additional information, documentation and resources available.
1.6 "Software" is defined in Section 3.1.
2. SERVICES AND SUPPORT
2.1 Services. Subject to the terms and conditions of this Agreement, NivelSonic will use commercially reasonable efforts to provide the Services. NivelSonic reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time and to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. NivelSonic will use commercially reasonable efforts to post a notification of discontinuance, temporarily or permanently, of the Services (or any part thereof) but is under no obligation to do so. Customer agrees that NivelSonic will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services.
As part of the sign-up process Customer may be required to create an account with NivelSonic, including for the purpose of registering Customer Devices, in order to access and use the Services. If Customer chooses to register for the Services and register Customer’s devices, Customer agrees to provide and maintain true, accurate, current and complete information about Customer and devices as prompted by the Services’ sign-up form. NivelSonic reserves the right to refuse sign-up of, or cancel passwords it reasonably deems inappropriate. If Customer is under 13 years of age, Customer is not authorized to use the Services, with or without registering. In addition, if Customer is under 18 years old, Customer may use the Service, with or without registering, only with the approval of Customer’s parent or guardian.
Customer is responsible for maintaining the confidentiality of Customer’s password and account, and is fully responsible for any and all activities that occur under Customer’s password or account. Customer agrees to (a) immediately notify NivelSonic of any unauthorized use of Customer’s password or account or any other breach of security, and (b) ensure that Customer exits from Customer’s account at the end of each session when accessing the Services. NivelSonic will not be liable for any loss or damage arising from Customer’s failure to comply with this Section.
2.2 Support. NivelSonic makes available online documentation at (NivelSonic.com)
3. LICENSES; RESTRICTIONS AND RESPONSIBILITIES
3.1 License. Any software embedded on NivelSonic Hardware and any mobile applications, development environments, APIs, supporting services which connects the NivelSonic Hardware, Agents and the API access and any other software or documentation related to the Services (or upon which the Services are based) and NivelSonic Hardware that may be made available by NivelSonic in connection with the Services and NivelSonic Hardware (collectively, including any improvements, enhancements or modifications thereto, the “Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, NivelSonic hereby grants Customer a worldwide, non-transferable, non-sublicensable (except as expressly provided below) and non-exclusive right and license to (a) use the Software solely in connection with Customer’s use of the Services and the NivelSonic Hardware; and (b) market and distribute the NivelSonic OS solely as part of NivelSonic Hardware and solely to end users and/or Sub-distributors (defined as those parties who redistribute to end users or other distributors) for non-commercial purposes. No rights or licenses are granted by NivelSonic except as expressly set forth in this Agreement. For the avoidance of doubt, Customer shall not commercially distribute Customer Devices, except as described in Section 6.
3.2 Restrictions. Customer acknowledges and agrees that the Services and NivelSonic Hardware may contain content or features or design or components that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, NivelSonic Hardware or any Software; modify, translate, or create derivative works based on the Services, NivelSonic Hardware or any Software; except as expressly set forth in this Agreement, copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, NivelSonic Hardware or any Software; use the Services or any Software for timesharing or service bureau purposes; or remove any proprietary notices or labels contained in any of the foregoing.
3.3 Conditions of Use. Customer represents, covenants, and warrants that Customer will use the Services and NivelSonic Hardware only in compliance with all applicable laws (including but not limited to policies and laws related to privacy (including but not limited to any European privacy laws), intellectual property and consumer and child protection). Although NivelSonic has no obligation to monitor the Firmware, Agents or other software provided to NivelSonic by Customer, the functionality of Customer Devices or Customer’s use of the Services or NivelSonic Hardware, NivelSonic may do so and may remove Firmware, Agents or any such software or prohibit any use of the Services or NivelSonic Hardware it reasonably believes may be (or alleged to be) in violation of the foregoing.
Customer acknowledges that NivelSonic may establish general practices and limits concerning use of the Services and the NivelSonic Hardware, including without limitation the maximum period of time that data or other content will be retained by the Services, the maximum storage space that will be allotted on the NivelSonic Hardware and the maximum storage space that will be allotted on NivelSonic’s servers on Customers behalf. Customer agrees that NivelSonic has no responsibility or liability for the deletion, loss or failure to store any data or other content maintained, uploaded, or downloaded by the Services. Customer further acknowledges that NivelSonic reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice, although NivelSonic will endeavor to provide Customer with notice of any such limitations described in this section (for example, by posting a notification within the Services).
3.4 Inappropriate Uses. Customer will not use the Services or NivelSonic Hardware in connection with any hardware, Customer Devices, or other applications, products or services that constitute or are used primarily for the purpose of dealing in: spyware, adware, or other malicious code; counterfeit goods; items subject to US embargo; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft; or the operation of chemical or nuclear facilities, aircraft or other human mass transportation systems, essential communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Services or NivelSonic Hardware could lead to death, serious bodily injury, or property or environmental damage or further or promote any criminal activity or enterprise or provide instructional information about illegal activities. In addition, without limiting the generality of anything herein, Customer agrees not to use the Services or NivelSonic Hardware to: (a) improperly avoid incurring fees or exceed usage limits or quotas; (b) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services or NivelSonic Hardware; (d) access or attempt to access the accounts, materials, information, computer systems, devices or networks of NivelSonic or otherwise not covered by this Agreement, through password mining or any other means; (e) solicit personal information from anyone under the age of 18.
3.5 Compatibility. Customer shall be responsible for adhering to the specifications provided by NivelSonic with respect to the Services and NivelSonic Hardware (available at the NivelSonic Support), including without limitation specifications related to hosting NivelSonic Hardware on Customer Devices and Firmware, developing the Firmware and Agents and integrating the Software and APIs with Customer Devices. Customer also acknowledges that NivelSonic may change, deprecate or republish the APIs or Services from time to time, and that it is Customer’s responsibility to ensure that API calls or requests Customer makes are compatible with the then-current APIs. NivelSonic will endeavor to inform Customer in advance of any API changes, but NivelSonic is under no obligation to do so.
3.6 Privacy. NivelSonic respects the privacy of users. By using the Services, Customer consents to NivelSonic’s collection, use and disclosure of personal data and other information about Customer as outlined therein.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and NivelSonic Hardware, including, without limitation, Customer Devices and related components (e.g., slots or casing for the NivelSonic Hardware, ID chips and power supply), hardware, servers, software, operating systems, networking, firmware and internet service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment and services are compatible with the Services and NivelSonic Hardware (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in NivelSonic’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer Data after it passes through the Services, and for all uses of Customer’s account or the Equipment with or without Customer’s knowledge or consent.
5. TRADEMARKS AND ATTRIBUTION
The NivelSonic name and logos are trademarks and service marks of NivelSonic (collectively the “NivelSonic Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any NivelSonic Trademarks displayed on the Services or on the NivelSonic Hardware, without NivelSonic’s prior written permission in each instance by email to info@NivelSonic.com or as otherwise expressly permitted by NivelSonic in writing. All goodwill generated from the use of the NivelSonic Trademarks will inure to NivelSonic’s exclusive benefit. The terms “exclusive”, “preferred” or other terms that imply a special relationship with NivelSonic may not be used in association with NivelSonic at any time.
6. COMMERCIAL USE
Unless otherwise expressly authorized by NivelSonic in writing in advance, Customer agrees not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service or NivelSonic Hardware, use of the Services or NivelSonic Hardware, or access to the Services. The Services and NivelSonic Hardware are for Customer’s personal use. However, NivelSonic may, in its sole discretion, authorize in writing certain limited small batch distribution of NivelSonic Hardware. In addition, NivelSonic offers commercial opportunities to customers that enter into a commercial agreement with NivelSonic. If Customer wishes to use the Services and NivelSonic Hardware for such small batch distribution purposes or any commercial purposes, Customer may contact sales@NivelSonic.com for more information.
7. THIRD PARTY SERVICES AND CONTENT
7.1 Third Party Sites and Services. The Services may contain features and functionalities linking Customer to or providing Customer with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, APIs, firmware, programs, products or services, device functionality, and the Internet as a whole; Customer acknowledges that NivelSonic is not responsible for such content, functionality, products or services and does not endorse such sites and resources. NivelSonic may also provide some third party content to Customer as part of the Services. However, NivelSonic is not an agent of any transacting party, nor is NivelSonic a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between Customer and the applicable third party. Similarly, NivelSonic is not responsible for any third party content Customer accesses via the Services or NivelSonic Hardware, and Customer irrevocably waives any claim against NivelSonic with respect to such sites and third party content, including software e.g., firmware and agents. NivelSonic shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third party. Customer should make whatever investigation Customer feels necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Customer is solely responsible for Customer’s dealings with any third party related to the Services or NivelSonic Hardware, including the delivery of and payment for goods and services. Should Customer have any problems resulting from Customer’s use of any third party services or should Customer suffer data loss or other losses as a result of problems with any of Customer’s other service providers or any third party services, NivelSonic will not be responsible.
7.2 Feedback. If Customer provides any feedback or requests any modifications related to NivelSonic products or services (“Suggestions”) to NivelSonic, NivelSonic will own all right, title, and interest in and to the Suggestions. NivelSonic will be entitled to use the Suggestions without restriction, and Customer hereby assigns to NivelSonic all right, title, and interest in and to the Suggestions (and all intellectual property rights therein) and agrees to provide NivelSonic with any assistance NivelSonic may require (at NivelSonic’s expense) to document, perfect, and maintain NivelSonic’s rights in the Suggestions.
Customer agrees that NivelSonic, in its sole discretion, may suspend or terminate Customer’s account or any Customer Devices accounts (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if NivelSonic believes that Customer has violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of Customer’s use of the Services, may be referred to appropriate law enforcement authorities. NivelSonic may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. Customer agrees that any termination of Customer’s access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that NivelSonic may immediately deactivate or delete Customer’s account and all related information, data and files in Customer’s account and/or bar any further access to such files or the Services. Further, Customer agrees that NivelSonic will not be liable to Customer or any third party for any termination of Customer’s or Customer’s devices’ access to the Services or use of NivelSonic Hardware.
9. WARRANTY AND DISCLAIMER
NivelSonic shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by NivelSonic or by third-party providers, or because of other causes beyond NivelSonic’s reasonable control, but NivelSonic shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption but is under no obligation to do so. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NivelSonic DOES NOT WARRANT THAT THE SERVICES, NivelSonic HARDWARE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, NivelSonic HARDWARE OR SOFTWARE. THE SERVICES, NivelSonic HARDWARE AND SOFTWARE ARE PROVIDED “AS IS” AND NivelSonic DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. You may be able to obtain certain warranties by entering into a commercial agreement with NivelSonic as described in Section 6. Warranties for the NivelSonic Hardware may be offered by the applicable distributor.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NivelSonic AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO NivelSonic HARDWARE SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND NivelSonic’S REASONABLE CONTROL, EVEN IF NivelSonic HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED $100).
11. INDEMNITY AND RELEASE
Customer agrees to release, indemnify and hold NivelSonic and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to Customer’s use of the Services, NivelSonic Hardware, Customer’s connection to the Services, Customer’s violation of this Agreement or Customer’s violation of any rights of another. If Customer is a California resident, Customer waives California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If Customer is a resident of another jurisdiction, Customer waives any comparable statute or doctrine.
12. U.S. GOVERNMENT MATTERS; EXPORT
12.1 Export. Customer may not remove or export from Mexico or allow the export or re-export of the Services, NivelSonic Hardware or anything related thereto, or any direct product thereof, in each case in violation of any restrictions, laws or regulations of the Mexico Department of Commerce, the Mexico Department of Treasury Office of Foreign Assets Control, or any other Mexico or foreign agency or authority. In connection with this Agreement, Customer will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, Customer is solely responsible for compliance related to the manner in which Customer uses the Services and NivelSonic Hardware, including without limitation Customer’s distribution of Customer Devices.
At NivelSonic’s or Customer’s election, all disputes, claims, or controversies arising out of or relating to this Agreement or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in La Paz, Baja California Sur before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in this Agreement. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with NivelSonic’s prior written consent. NivelSonic may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind NivelSonic in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement (except as otherwise expressly provided herein) will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Baja California Sur without regard to its conflict of laws provisions.
Please contact NivelSonic at info@NivelSonic.com to report any violations of this Agreement or to pose any questions regarding this Agreement or the Services.