Terms

 

Terms and Conditions

 

Last Updated: December 19, 2016

 

Please read these terms and conditions (these “Terms”) carefully as they form a contract between you (“you” or “Customer”) and Nanoscale, Inc., a Delaware corporation (“Nanoscale”, “we”, “us”, or “our”). These Terms govern your access and use of the Nanoscale software (the “Software”).

By clicking “ACCEPT TERMS AND CONDITIONS” or using the Software you agree to be bound by these Terms. If you are using the Software on behalf of an organization, you are agreeing to these Terms for that organization and promising to Nanoscale that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate contract in effect with us, in which event the terms of that contract will govern your use of the Software.

You may use the Software only in compliance with these Terms and only if you have the power to form a contract with Nanoscale and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SOFTWARE. Should you have any questions concerning these Terms, please contact: support@nanoscale.io with “Terms and Conditions” in the subject line.

 

  1. ACCESS TO THE SOFTWARE

You may access a version of the Software hosted by Nanoscale on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws. The Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your subscription ends. You must not work around any technical limitations in the Software. You may download an open source version of the Software under the terms of the Apache 2.0 license.

 

  1. YOUR ACCOUNT

To access the Software, you will be required to obtain an account with Nanoscale and you must: (a) provide true, accurate, current and complete Account Data; and (b) maintain and promptly update the Account Data to keep it true, accurate, current and complete by any self service mechanism if available or by notifying Nanoscale at support@nanoscale.io

 

  1. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION

By using the Software, you understand that we may send you communications or data regarding the Software, including but not limited to: (a) notices about your use of the Software, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding Nanoscale’s products and services, via electronic mail. We shall make reasonable efforts to give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.

 

  1. USE OF SOFTWARE

You must keep your account information, license keys, and passwords confidential and not authorize any third party to access or use the Software on your behalf, unless we provide explicit written approval to share your account with third parties.

You will not: (a) sell, resell, rent or lease the Software without written explicit approval from Nanoscale, (b) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Software to store or transmit Malicious Code, (d) attempt to gain unauthorized access to the Software (e) create derivate works based on the Software, (f) reverse engineer the Software; (g) access the Software in order to build a competitive product, or copy any features, functions or graphics of the Software; (h) hold Nanoscale liable for content, data, or other information that may be a violation of personal privacy, HIPPA rules, PCI compliance, or any other content and data specific laws and regulations. (i) use the Software in a way that violates or infringes upon the Intellectual Property Rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; or (j) violate any third party regulations, policies or procedures of such servers or networks.

The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s compliance list at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

Except for material that we license to you through the Software, we do not claim ownership of any websites, services, products and/or mobile applications for which you are creating APIs.

You agree to use commercially reasonable efforts to prevent unauthorized access to the Software. You must immediately notify Nanoscale in writing of any unauthorized use of the Software that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Nanoscale with such cooperation and assistance related to any such unauthorized use as Nanoscale may reasonably request.

 

  1. THIRD-PARTY COMPONENTS

To the extent any Third-Party Components are included and necessary to use the Software, Nanoscale shall make reasonable efforts to secure any and all such licenses for you to use any Third-Party Components during the term of your Software subscription. The licenses granted to you shall not include the right to modify the intellectual property of Third-Party Components whatsoever.

 

  1. FREE OR TRIAL ACCOUNTS

We may offer you the ability to use the Software for a limited trial period (“Trial Period”) or for free (“Free Account”), as we determine in our sole discretion. These Terms apply equally to any Trial Period or any Free Account that you may be using. You understand and acknowledge that the Software provided under a Free Account may be significantly limited in features and functionality and/or have substantial usage limits. If you register for a free trial, the Trial Period will begin upon registration and will expire within the time period specified on the Site. During such Trial Period, you are restricted to the features, functionality, and usage limits for which you are receiving the free trial. On or before the end of the Trial Period, you must upgrade to a paid version, provide us with your payment information, and pay the applicable fees. If you fail to do so, your account will be downgraded to a Free Account (if such option is available) or terminated which may or may not result in loss of data or work. We may suspend, terminate, or discontinue the Trial Period or Free Account at any time and for any reason, in our sole discretion. Free or Trial Accounts will not have official product support, performance, or service level agreements of any kind written or implied.

 

  1. FEES AND PAYMENT FOR PAID ACCOUNTS

You shall pay all subscription fees for our Software as specified on the Site or any other ordering document signed by you and Nanoscale. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars (ii) fees are based on Software subscription purchased and payment obligations are non-cancelable and fees paid are non-refundable for any reason. Subscription fees are charged in advance (not in arrears) for the applicable Subscription term. We reserve the right to charge you for your subscription fees via your credit card or to otherwise seek payment directly from you if that payment method should be invalid. You are responsible for keeping all billing information in your account current, complete and accurate. If invalid, outdated, incomplete or inaccurate information is listed in your account and the charge for your subscription fees is not successful, rejected or otherwise cannot be processed or completed successfully, you will be responsible for any associated fees, fines, or penalties we may incur as a result of such rejected charge and your account may be terminated or suspended at our sole and absolute discretion. You shall have no right to withhold or reduce fees under these Terms or set off any amount against fees owed for alleged defects in the Software. All fees not paid when due shall accrue interest at the lesser of 1.0% per month or the maximum rate allowed under applicable law.

We may make changes to the subscription fees for the Software at any time, by posting such notice on our Site, sending it to your email address associated with your account, or such other means as we deem appropriate. Any fee increases will apply and will be charged to your account on the first day of your next subscription term, unless you terminate (as provided in these Terms). If you do not agree with the applicable change in the subscription fees, then your sole and exclusive remedy shall be to terminate your account (as provided in these Terms).

Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). You are responsible for paying all Taxes associated with your purchase of a Software subscription. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.

 

  1. SUBSCRIPTION PERIOD; NO REFUNDS

The subscription period for a free account or plan is indefinite and may be cancelled by you or us at anytime in accordance with these Terms.

The subscription period for the paid plans will be monthly and will automatically renew every 30 days starting from your sign-up unless you cancel your plan in accordance with these Terms at least one (1) day prior to your renewal date through your Nanoscale account at www.nanoscale.io.

Nanoscale does not and will not issue refunds for partial months to you or your organization, in conjunction with a termination or cancellation of any Software subscription.

We may add or remove functionalities or features, or change plan features, at our discretion, and will make reasonable efforts to notify you of such changes.

 

  1. SUSPENSION AND TERMINATION OF USE OF THE SOFTWARE

These Terms shall remain in effect until terminated as permitted herein.

We may terminate your use of the Software for cause: (i) upon 10 days written notice to you of a material breach of these Terms if such breach remains uncured at the expiration of such period, or (ii) if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

We reserve the right to suspend your access to or use of the Software for: (a) the actual or suspected violation of these Terms; or (b) the use of the Software in a manner that may cause Nanoscale to have legal liability.

Upon the expiration or termination of your Software subscription for any reason, all licenses and other rights granted to you under these Terms and your right to use the Software shall immediately terminate.

 

  1. UPDATES TO THE SOFTWARE

Nanoscale will make reasonable efforts to notify you of updates to the Software, however we reserve the right, in our sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Software at any time. We may add or remove functionalities or features, or change plan features, at our discretion, and will make reasonable efforts to notify you of such changes.

 

  1. PROPRIETARY RIGHTS

As between Nanoscale and you, Nanoscale or its licensors own and reserve all right, title and interest in and to the Software and Nanoscale IP, other than the rights explicitly granted to you to use the Software in accordance with these Terms. No title to or ownership of any proprietary rights related to the Software is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Nanoscale. In the event that you provide comments, suggestions and recommendations to Nanoscale with respect to the Software (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Software) (collectively, “Feedback”), you hereby grant to Nanoscale a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Software.

 

  1. PRIVACY

Before making the Software available to you, we collect certain information about you. We use and protect that information as described in the privacy policy located at http://www.nanoscale.io/privacy/ (“Privacy Policy”). You further acknowledge and agree that we may access or disclose information about you, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Nanoscale or our customers, including the enforcement of our agreements or policies governing your use of the Software; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Nanoscale employees, customers, or the public.

 

  1. WARRANTY DISCLAIMER

NANOSCALE PROVIDES THE SOFTWARE AS IS, WITH ALL FAULTS AND AS AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NANOSCALE MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

  1. INDEMNIFICATION

To the extent permitted by law, you will defend, indemnify and hold Nanoscale harmless against any cost, loss, damage, or other liability arising from any third party demand or claim related to any Customer Application or that your use of the Software, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Nanoscale’s actions); or (b) violates applicable law or these Terms. Nanoscale will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

 

  1. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NANOSCALE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF NANOSCALE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF NANOSCALE AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SOFTWARE WILL BE LIMITED TO AN AMOUNT EQUAL TO THREE MONTHS OF YOUR SUBSCRIPTION FEE FOR THE SOFTWARE, IF ANY. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

 

  1. GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES

The laws of the State of Virginia, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Fairfax County, Virginia, USA, for all disputes arising out of or relating to these Terms.

 

  1. NOTICES

We may send you, in electronic form, information about the Software, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you registered on our Site for the Software. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Software. You may provide legal noticed to us via email to support@nanoscale.io, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Nanoscale, Inc., 11800 Sunrise Valley Drive, Suite 1050, Reston, VA 20191. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

 

  1. INTELLECTUAL PROPERTY NOTICES

All contents of the Site and Software including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © Nanoscale, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

Nanoscale and the Nanoscale logo are including without limitation, either trademarks, service marks or registered trademarks of Nanoscale, Inc., and may not be copied, imitated, or used, in whole or in part, without Nanoscale’s prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.

Nanoscale may have patents, patent applications, trademarks, copyrights, or other Intellectual Property Rights covering subject matter that is part of the Software. Any rights not expressly granted herein are reserved.

 

  1. MISCELLANEOUS

19.1. Severability; Entire Agreement

These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Software. It supersedes any prior contract or oral or written statements regarding your use of the Software.

19.2. Changes

We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Site. Any changes will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms). We may notify you via by email to the email address associated with your account or may be provided via the Site or related Nanoscale blogs or social media outlets. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Software constitutes your acceptance of such changes.

19.3. Assignment and transfer

We may assign, transfer, or otherwise dispose our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign these Terms or transfer any rights to use the Software.

19.4. Independent Contractors; No third-party beneficiaries

Nanoscale and you are not legal partners or agents; instead, our relationship is that of independent contractors. These Terms are solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

19.5. Claims

You must bring any claim related to these Terms or the Software within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn’t filed in time, the claim is permanently barred.

19.6. Waiver

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

19.7. Government Use

If you are a U.S. government entity, you acknowledge that any Software that are provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

  1. Definitions

Unless otherwise defined herein, capitalized terms used herein shall have the following meaning:

“Account Data” means information about yourself, your company, or your organization as requested during the registration process.

“Nanoscale IP” means the Software, and any other Nanoscale proprietary software, information, document templates, and project tools, including, without limitation, the look, feel, and user interface designs, architecture, class libraries, and documentation and any and all updates, upgrades, improvements, derivative works or modifications thereof.

“API” means application programming interface.

“Customer Application” means any and all APIs built through use of the Software.

“Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, or privacy rights laws, and any and all other proprietary rights.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Site” means www.nanoscale.io.

“Third-Party Components” means any third party software necessary for use of the Software, and shall include open source software and third party proprietary software licenses as identified by Nanoscale from time to time.