Your Relationship with nativeye1.1.
For the purposes of these terms and conditions, nativeye means nativeye Limited, a company incorporated in the United Kingdom with registered number 07654737 “For the purposes of these terms and conditions, “Service” and “Services” refers to the service offered and administrated by nativeye including the website and mobile application(s) maintained by nativeye.1.2.
Unless otherwise agreed in writing with nativeye, your agreement with nativeye will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “UniversalTerms”.1.3.
Your agreement with nativeye will also include the terms of any Legal Notices applicable to the Services, in addition to the Universal Terms. All of these are referred to below as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.1.4.
The Universal Terms, together with the Additional Terms, form a legally binding agreement between you and nativeye in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
Accepting the Terms2.1.
In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.2.2.
You can accept the Terms by:
- clicking to accept or agree to the Terms, where this option is made available to you by nativeye in the user interface for any Service; or
- by actually using the Services. In this case, you understand and agree that nativeye will treat your use of the Services as acceptance of the Terms from that point onwards.
You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with nativeye, or (b) you are a person barred from receiving the Services under the laws of the country in which you are resident or from which you use the Services.2.4.
“You” and “User” refers to you, and all your assignees, and all those who use the Services on your behalf
Language of the Terms3.1.
Where nativeye has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with nativeye.3.2.
If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.
Provision of the Services by nativeye4.1.
nativeye is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which nativeye provides may change from time to time without prior notice to you.4.2.
As part of this continuing innovation, you acknowledge and agree that nativeye may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at nativeye’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform nativeye when you stop using the Services.4.3.
You acknowledge and agree that if nativeye disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.4.4.
You acknowledge and agree that while nativeye may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by nativeye at any time, at nativeye’s discretion.
Certain content and information provided on and through the Services, including, without limitation, documents, graphics and images that are not User Content (as defined below) (collectively, the "nativeye Materials") are provided to you by nativeye and are the copyrighted and/or trademarked work of nativeye or nativeye's contributors. nativeye grants you a limited, personal, non-exclusive and non-transferable license to use and to display the nativeye Materials solely for your personal use in connection with the Services.5.2.
Except as expressly permitted in these Terms, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the nativeye Materials in any manner. This limited license terminates automatically, without prior notice to you, if you breach any of the Terms. Except for the limited rights granted hereunder, you acknowledge that you have no right, title or interest in or to any nativeye Materials.
User acknowledges and agrees that:
- all assignment questions, information, data, text, software, music, sound, photographs, images, video, assignment responses, messages or other materials communicated, submitted or transmitted by Users through the Services (collectively, “User Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated;
- User, and not nativeye, is responsible for all User Content that User or respondents of User's assignments upload, post, email, distribute, communicate, transmit, or otherwise make available using the Services or that is otherwise made available through the use of User's account (if User has one), whether or not authorized by User;
- by using the Services, User may be exposed to User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; and
- by communicating or transmitting any User Content using the Services, User grants to nativeye an irrevocable, non-exclusive, royalty-free and worldwide license to use such User Content for the purpose of operating the Site and supplying the Services, and User warrants to nativeye that it has the right to grant such license for such purposes.
User further acknowledges and agrees that nativeye does not control the User Content originating from User, respondents to User's assignments or other users of the Services, and does not guarantee the accuracy, integrity or quality of such User Content. Notwithstanding the foregoing, nativeye may, but is not obliged to, review all User Content and block, modify, terminate access to, or remove any such User Content that nativeye, in its sole discretion, considers to be non-compliant with any of the requirements of this Agreement.6.3.
nativeye reserves the right to purge User Content from its databases at any time and from time to time without notice. User acknowledges and agrees that User is solely responsible for backing up any User Content uploaded to the Site by User or received by User through the use of the Services. nativeye shall not be liable for any purging, deletion or failure to retain any such User Content.6.4.
nativeye may disable User's account and User's access to use the Services and nativeye may recover from User any losses, damages, costs or expenses incurred by nativeye resulting from or arising out of User's non-compliance with any provision of this Agreement.
In connection with User's use of the Services, and without limiting any of User's other obligations under this Agreement or applicable law, User:
- shall comply with: (i) this Agreement, including nativeye's anti-spam policy and all other policies as published on the Site from time to time, (ii) all local and international laws applicable to User, including, among other things, the Privacy and Electronic Communications Regulations 2003 and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property, data protection, or child protective email address registries, (iii) all other rules or regulations applicable to User, including, among other things, securities regulations, and (iv) all privacy policies or similar policies or procedures to which User may be bound that are related to User's use of the Services;
- shall not upload, post, email, distribute, communicate, transmit or otherwise make available any User Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that User does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any "junk mail", "spam", "chain letters", "pyramid schemes", or any similar form of solicitation;
- shall not use the Services to send assignments, polls, or other materials to individuals under the age of majority in his or her place of residence ("minors") unless User is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send assignments, polls, or other materials to minors that would subject nativeye to any local or international law, rule or regulation governing children's privacy, rights of personality or otherwise related to protecting minors;
- shall not impersonate any other person or entity, including nativeye, or a nativeye official, or falsely state or otherwise misrepresent User's affiliation with any other person or entity;
- shall, if User uses the Services to send an assignment, not mislead the recipients of that assignment that User may have the ability to associate individual responses to that assignment with the individual email addresses to which that assignment was sent by stating that User has no such ability (unless User has requested nativeye to disable such feature). nativeye recommends that Users' assignments include the following notice (or words to similar effect), if applicable:
"Please be advised that your responses to this assignment may not be treated as anonymous by the assignment sender."
- shall not interfere with or disrupt the Services or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
- shall not engage in excessive usage of the Services, as determined by nativeye in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Services for other users;
- shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Services in any manner (except to the extent the foregoing prohibition is not permitted by applicable law, including, without limitation, as set forth with respect to Users in France in the attached country-specific terms);
- shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computeror the Services; and
User further acknowledges and agrees that nativeye may cooperate with any governmental authority in connection with any investigation into User's use of the Services, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any User Content, and any other information pertaining to the User or to User's use of the Services, to such governmental authority in connection with any such investigation.
Subscriptions and Payment8.1.
If User purchases a paid subscription to the Services (a "Subscription"), User shall pay all fees to nativeye,Kemp House, 52-160 City Road, London EC1V 2NXincluding for any additional Services purchased by User or usage that exceeds the thresholds at the rates posted, as well as VAT and any other applicable taxes, applicable to such Subscription, as published on the Site at www.nativeye.com/plans from time to time. nativeye may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of User's Subscription. nativeye will provide User with prior notice of any change in fees to allow User to cancel User's Subscription prior to the end of the then-current term of User's Subscription.8.2.
Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, nativeye shall automatically renew User's Subscription at the end of its term unless User's Subscription is cancelled using the tool made available in User's account page on the nativeye website and on the Service at any time prior to the end of the then-current Subscription. User will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that User has chosen, unless nativeye has notified User of any new rate in advance. A cancellation of a Subscription requested by User through User's account page will become effective on the date that the then-current Subscription period expires.8.3.
If User has elected to pay the fees referred to in Section 2.1 (Subscriptions and Payment) by credit card, User hereby warrants that the credit card information provided by User is correct, and User shall promptly notify nativeye of any changes to such credit card information. User acknowledges and agrees that if User's credit card payment cannot be processed for any reason, nativeye may suspend or cancel User's Subscription.
Indemnity by User9.1.
User shall indemnify, defend and hold harmless nativeye, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with:
- User's use of the Services, including User's use of or reliance on any information or materials (including assignment or poll results or responses) obtained through the use of the Services,
- any other use of the Services by a third party using User's account (whether or not authorized by User),
- User's breach of this Agreement, including any of User's representations and warranties under this Agreement, or
- User's contravention of any law applicable to User, including, among other things, the Privacy and Electronic Communications Regulations 2003.
This Agreement shall automatically become effective upon User's first use of the Services, and continue indefinitely until it is terminated.10.2.
nativeye may cancel User's Subscription (if User has one) and automatically terminate this Agreement immediately by notice to User in the event that User breaches any of User's representations, warranties, or obligations under this Agreement (including any of User's obligations under Section 5 (User Content)) or contravenes any applicable law.10.3.
User may cancel User's Subscription (if User has one) and terminate this Agreement by written notice to nativeye in the event that nativeye materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of nativeye's receipt of notice of breach from such User.10.4.
Upon termination of this Agreement for any reason, User shall immediately cease all use of the Services, and User acknowledges and agrees that nativeye may, in its sole discretion, take any measures nativeye reasonably deems necessary or desirable to prevent further use by User of the Site or Services, including by blocking User's IP address. User further acknowledges and agrees that upon termination of this Agreement, nativeye shall not be obliged to retain any User Content (including assignment or poll results or responses) or to provide the same to User, but may elect to do so in its sole discretion.
Provision of the Services11.1.
nativeye reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or User's access thereto, and to modify, suspend or delete the Site or any part thereof, and nativeye will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact the Services in a negative manner. In the case of changes that significantly impact the Services in a negative manner, User is entitled to cancel User's Subscription, if any. User acknowledges and agrees that nativeye shall not be liable to User, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.11.2.
Without limiting Section 9.1 (Provision of the Services), if User engages in excessive usage of the Services (as described in Section 6(g) (User Conduct)), nativeye may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Services to other users, including by limiting or suspending User's access to the Services, or by cancelling User's Subscription and terminating this Agreement.11.3.
USER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS," AND THAT, EXCEPT AS MAY OTHERWISE BE SET FORTH IN THIS AGREEMENT WITH RESPECT TO USERS IN SPECIFIC COUNTRIES, NATIVEYE HAS NO RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS, OR STORE ANY USER CONTENT (INCLUDING ASSIGNMENT OR POLL RESULTS OR RESPONSES) MAINTAINED OR TRANSMITTED USING THE SERVICES.11.4.
USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.11.5.
USER FURTHER ACKNOWLEDGES AND AGREES THAT USER, AND NOT NATIVEYE, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SERVICES.11.6.
NATIVEYE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES, OR OTHER HARMFUL COMPONENTS OF THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.11.7.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NATIVEYE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
LIMITATIONS AND EXCLUSIONS OF NATIVEYE'S LIABILITY12.1.
IN NO EVENT SHALL NATIVEYE, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF NATIVEYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
- THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SERVICES, OR
- ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SERVICES.
USER SPECIFICALLY AGREES THAT NATIVEYE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:
- UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SERVICES,
- ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR
- ANY CONTENT SENT USING, OR INCLUDED IN, THE SERVICES BY ANY THIRD PARTY.
IF USER IS DISSATISFIED WITH ANY PORTION OF THE SERVICES, USER'S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SERVICES.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, NATIVEYE, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO USER FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, NATIVEYE'S (OR SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, SERVANT'S OR AGENT'S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
- THE AMOUNT OF ONE HUNDRED POUNDS (£100.00), AND
- THE AMOUNTS ACTUALLY RECEIVED BY NATIVEYE FROM USER UNDER THIS AGREEMENT.
10.3. USER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, NATIVEYE WOULD NOT BE ABLE TO OFFER THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE USER'S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, damages to life, body or health or in case of bodily injury, death, fraud, gross negligence, or breach of a fundamental obligation, and so the foregoing limitation and exclusions do not apply to User to that extent (including, without limitation, as set forth with respect to Users in Germany in the attached country-specific terms).
Intellectual Property Rights
The Services and all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of nativeye Ltd, Copyright © 2012, its affiliates, or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. nativeye reserves all rights in the Services that are not expressly granted. nativeye is a trademark of nativeye Ltd in the UK and of its affiliates in various other jurisdictions throughout the world. Other trademarks, names, and logos on this Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property. User further acknowledges and agrees that nativeye Materials and other content made available to User through the Services may be subject to the intellectual property rights of third parties.
nativeye may provide references, frames or hyperlinks to internet websites maintained by third parties. nativeye does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. nativeye is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.14.2.
User acknowledges and agrees that User, and not nativeye, is responsible for determining which laws may apply to User's use of the Services and assessing User's obligations under such laws.14.3.
All notices and other communications required or permitted to be given by nativeye to User under this Agreement will be deemed to be properly given on the date when:
- posted on the nativeye website or application,
- sent by email to the email address for User last recorded by nativeye, or
- sent by postal mail to the postal address for User last recorded by nativeye.
User may give notices to nativeye under this Agreement by email to email@example.com.
This Agreement comprises the entire agreement between nativeye and the User relating to the Services. Both User and nativeye confirm that they have not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.14.5.
The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.14.6.
nativeye may assign this Agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization in which nativeye participates or to the purchaser of all or substantially all of nativeye's assets to which this Site relates.14.7.
In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable legal fees and costs.