Nitro Terms and Conditions
Revised: March 18, 2015
PLEASE NOTE: SECTION 12 CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH NITRO.
IMPORTANT -- THIS AGREEMENT ("AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“LICENSEE”, “YOU” OR "YOUR") AND NITRO SOFTWARE, INC. (“NITRO”). BY USING THE SERVICE HEREIN DESCRIBED AND/OR ANY SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT TO NITRO THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY.
1. Agreement with Nitro.You are agreeing to use one or more of Nitro’s cloud-based document conversion and/or document management services, which may be referred to individually or collectively herein as the "Service(s)",and/or Nitro’s document conversion and/or document management software ("Software"). The Service and the Software may not be error free. Therefore, You are advised to safeguard important data, to use caution and not to rely on the correct functioning or performance of the Service or Software. Although Nitro will use reasonable efforts to provide technical support (assuming you have paid any applicable fees), it provides no assurance that any specific errors in the Service or Software will be corrected.
2. LicenseSubject to the terms and conditions of this Agreement and depending upon whether during sign up with Nitro you have chosen to use the Service and/or the Software on a subscription basis or to receive a perpetual license to use the Software, Nitro grants to You: (i) a non-exclusive, non-transferable license (without right to sublicense) to use the Service and/or Software for the term of this Agreement, and/or (ii) a non-exclusive, non-transferable, perpetual license (without right to sublicense) to use the Software. Except as otherwise specifically permitted in this Agreement, You may not: (a) modify or create any derivative works of the Service or Software; (b) copy any portion of the Service or Software; (c) sublicense or, unless You have signed up for an account that permits more than one user (in which case You agree not to exceed the permitted number of users), permit use of the Service or Software by more than one user; (d) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); or (e) use the Service or Software in a timesharing or service bureau arrangement, or otherwise transfer rights to the Service or Software. Any update to the Software provided to You is made on a license exchange basis such that You agree, as a condition for receiving an update, that You will terminate Your use any previous version of the Software. Nitro may automatically check the Service and/or Your version of the Software and may automatically update the Service and/or Software from time to time. You agree to accept such updates subject to this Agreement.
3. Your Account and Use of the Service.You may be required to create an account to participate in the Service and/or use the Software. If You are entering into this Agreement on behalf of an entity, You represent and warrant that the entity will utilize the Services and/or Software under a single account. You agree not to impersonate any person or entity or misrepresent Your identity or affiliation with any person or entity, including using another person's username, password or other account information. You are responsible for the security of Your password and for any use of Your account. You also agree to notify us promptly at firstname.lastname@example.org of any unauthorized use of Your username, password, other account information, or any other breach of security that You become aware of involving or relating to the Service or Software.
If there is a fee associated with your use of the Service or Software, You agree to pay that fee. The fee charged excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. Nitro may suspend or cancel Your access to the Service or Software if Nitro does not receive payment from You. Suspension or cancellation for non-payment may result in a loss of access to and use of Your account. To pay any fees, You will be asked to provide a payment method at the time you sign up with Nitro. You agree to keep your billing account information current at all times. By providing Nitro with Your payment method, You (a) represent that You are authorized to use the payment method that You provided and that any payment information You provide is true and accurate; and (b) authorize Nitro to charge You using Your payment method and to charge You for any paid feature that You choose to sign up for or use while this Agreement is in effect. You acknowledge and agree that Nitro may bill you on a recurring basis for Services that You purchase on a subscription basis. If You take part in any trial offer, You must cancel the Services by the end of the trial period to avoid incurring charges, unless Nitro notifies You otherwise. Nitro may change the price it charges for the Services at any time and will notify You of such changes. If You do not agree to the price change, You must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Services offer, that price will remain in force for that term. Unless otherwise provided by law or by a particular Service offer, all purchases are final and non-refundable.
In Your use of the Service or Software, You agree to comply with all applicable laws and regulations. You shall, in connection with Your use of the Service or Software, comply with all applicable import, export and re-export control laws and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Service or Software, including Your transfer and processing of Your content via the Service or Software. For U.S. Government users, the Software is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
You may not access the Service other than through the interfaces provided by Nitro or interfere with or disrupt the proper operation of the Service.
4. Feedback/Use of Licensee’s Name.You consent to Nitro contacting You for marketing and other purposes as well as contacting You to solicit Your opinion regarding the Service or Software. You agree, at your sole discretion, to provide to Nitro suggestions, comments and feedback regarding the Service or Software, including but not limited to usability and bug reports (collectively, "Feedback"). If You provide such Feedback to Nitro, You hereby grant Nitro the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights to: make, use, copy, modify, sell, distribute, publicly perform or display, sublicense (including the right to sublicense to further third parties), and create derivative works of the Feedback as part of any Nitro product, technology, service, specification or documentation (individually and collectively, "Nitro Products"). You warrant that Your Feedback is not subject to any license or other terms that would purport to require Nitro to comply with any additional obligations with respect to any Nitro Products that incorporate any Feedback.
Nitro may use Licensee’s name and/or logos to identify Licensee as a Nitro licensee in its general marketing materials or otherwise.
5. Unauthorized Use.You agree to use reasonable efforts to cooperate with and assist Nitro in identifying and preventing any unauthorized use, copying, or disclosure of the Service or the Software.
6. Nitro Proprietary Rights.Nitro and any of its licensors own all proprietary rights in and to the Service and the Software. The Service and any Software provided to you is licensed and not sold. Except as expressly provided herein, Nitro retains all rights and does not grant any express or implied right to You under any Nitro patents, copyrights, trademarks, or trade secret information.
7. Modification and Termination of the Service.Nitro may place limits on, modify, suspend or terminate the Service generally, may remove or disable access to any content posted by You in using the Service and may suspend or terminate Your use of the Service or terminate this Agreement at any time, including as a result of Your use of the Service that Nitro reasonably deems to be excessive, which may include usage that substantially and repeatedly exceeds the average level of usage compared to other users of same category/tier of Service. Notwithstanding anything else in this Agreement, this suspension or termination may result in the immediate deletion of Your documents, information, files, and other previously available content. Nitro is under no obligation to return any content to you. If Nitro terminates the Service, Your use of the Service or this Agreement, the rights and licenses granted to You under this Agreement shall immediately terminate (except that You may continue to use any Software as provided in Section 2(ii) in all instances other than termination of this Agreement as a result of Your breach) and You shall immediately cease using the Service. In addition to those provisions that survive according to their terms, Sections 4 through 12 shall continue to be effective after termination of this Agreement.
8. Changes to this Agreement.Nitro may change this Agreement and will post the modified agreement (which shall then become the Agreement) on Nitro’s website. Therefore, Nitro encourages you to check the terms of this Agreement from time to time to see if they have been updated. If You do not agree to the modified agreement, Your sole recourse is to stop using the Service and/or Software. Your continued use of the Service or Software after the date the modified agreement is posted will constitute Your acceptance of the modified agreement.
9. IndemnificationYou will defend, indemnify and hold harmless Nitro, its affiliates, and their respective officers, directors, employees, agents, licensors and any third party providers, from and against all claims, losses, damages and costs, including reasonable attorneys’ fees, arising from any third-party claim against Nitro related to Your use of the Service or Software, including any document or content You submit to the Service.
10. Exclusion of Warranties.LICENSEE ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICE AND ANY SOFTWARE MAY CONTAIN ERRORS, OMISSIONS, AND PROBLEMS. LICENSEE HEREBY ACCEPTS THE SERVICE AND SOFTWARE, "AS IS" AND WITH ALL FAULTS, DEFECTS AND ERRORS AND LICENSEE UNDERSTANDS THAT IT ASSUMES ALL RISKS OF USE, QUALITY, AND PERFORMANCE. NEITHER NITRO NOR ANY OF NITRO'S LICENSORS MAKE ANY EXPRESS WARRANTIES, AND EACH OF THEM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
11. Limitation of Liability.LICENSEE AGREES AND ACKNOWLEDGES THAT NEITHER NITRO NOR ANY OF ITS LICENSORS MAY BE HELD LIABLE FOR ANY CLAIM, LOSS, DAMAGES, EXPENSES OR COSTS OF AN INDIRECT NATURE, INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS OR OTHERWISE AND IN NO EVENT SHALL THEY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT OF FEES PAID TO NITRO BY LICENSEE (IF ANY) UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX MONTHS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THEY ARE LAWFUL IN YOUR JURISDICTION.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT IF THE ABOVE LIMITATION WERE NOT INCLUDED HEREIN, NITRO WOULD NOT LICENSE THE SERVICE OR SOFTWARE TO YOU.
12. General Legal Terms.This Agreement is the entire agreement between You and Nitro related to the Service and/or Software, replacing any prior agreements. Nitro's licensors may be third party beneficiaries to this Agreement. There are no other third party beneficiaries to this Agreement. The parties to this Agreement are independent contractors, and nothing in this Agreement creates an agency, partnership, or joint venture. You shall not assign this Agreement, by operation of law or otherwise. Nitro may assign this Agreement, subject to all of the terms of this Agreement.
Failure to enforce any provision will not constitute a waiver of that provision. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose and, in any event, the remainder of the Agreement shall be unaffected. The prevailing party in any action or proceeding to enforce its rights hereunder shall be entitled to recover reasonable attorneys’ fees and other reasonable costs incurred in the action or proceedings.
This Agreement shall be governed by California law without regard to any conflict of laws principles.
You and Nitro agree to resolve any disputes between us in accordance with this section. If You have any dispute with Nitro, please contact Nitro. We will do our best to address your concerns and we will attempt to resolve any disputes with you amicably. Except as otherwise provided herein, You and Nitro agree that we will resolve any disputes between us that we cannot resolve as provided above through binding and final arbitration instead of through court proceedings as follows. All controversies, claims, counterclaims, or other disputes arising between You and Nitro relating to the Service, Software or this Agreement (each a "Claim") shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association ("AAA Rules"). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If You demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Nitro will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This agreement to arbitrate does not preclude You from seeking action by federal, state, or local government agencies. You and Nitro also have the right to bring qualifying claims in small claims court. In addition, You and Nitro retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither You nor Nitro may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only Your and/or Nitro's individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
No waiver of any provision of this section will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR NITRO WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS THE CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA.