NDI® Remote Terms of Service
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE PROCEEDING. BY CLICKING ON THE “I AGREE” BUTTON, YOU (“YOU, YOUR, YOURSELF”) AGREE TO THESE TERMS OF SERVICE AND ANY INCORPORATED POLICIES HERETO (“AGREEMENT”). UNDER THIS AGREEMENT, NEWTEK INC. (“NEWTEK”) WILL ALLOW YOU TO ACCESS THE NDI® REMOTE WEBSITE AND TO USE THE SOFTWARE AND SERVICES PROVIDED ON THE NDI® REMOTE WEBSITE (“SERVICES”).
In this Agreement, these terms shall have the following meaning:
“Software” means software made available by NewTek to You on the NDI® Remote Website.
“Services” means NewTek services made available to You on the NDI® Remote Website.
2.1 This Agreement applies to the Services. You agree that Your use of the Services is governed by this Agreement by clicking “accept” on the “I Agree” button or by other means indicating your acceptance. In the event of any conflict between this Agreement and any other agreement affixed to a form, order, blank acceptance or counter-offer, this Agreement shall apply and no other agreement or terms and conditions shall be of force or effect. NewTek’s failure to object to any conflicting agreement or terms and conditions does not constitute acceptance thereof.
2.2 NewTek may, in its sole discretion, discontinue to provide the Services or alter the features or functionality of the Services at any time without prior notice. In case the Services are discontinued, subject to 15.2, this Agreement will terminate.
- ELIGIBILITY AND INTENDED USE
3.1 You affirm that You are eligible in Your country of residence to enter into this Agreement and any incorporated policies and to make the representations and warranties as set forth in this Agreement. If NewTek believes that You were not eligible to enter into this Agreement, Your access to the Services may be terminated without notice.
4.1 NewTek shall make the Services available over the Internet to You, in which event all of NewTek’s obligations in respect of the availability of such Services shall be satisfied upon provision of access to the Services on the NDI® Remote website. The availability of the Services is dependent on hardware, software and Internet speed. You agree that these factors are Your responsibility.
- USE OF SERVICES
5.1 Access to the Services may require the use of usernames and passwords. You must provide accurate and complete registration information when registering to use the Services. You are responsible for designating Your employees, representatives and consultants, for whom You have acquired user rights and who will be authorized by You to access and use the Services (“User(s)”).
5.2 You and Users are responsible for the security of the usernames and passwords. Each User will maintain the confidentiality of his/her username and password and may not disclose them to any other party or share their account with any other individual. You are responsible for ensuring that all Users comply with this Agreement and for any breach of this Agreement by any User.
5.3 You shall notify NewTek immediately should You become aware of any unauthorized access or use of the usernames or passwords.
5.4 You may use the Services solely for the purpose of uploading, editing, managing, publishing and broadcasting Your data, text, audio, video, photographs or other images (“Content”). You agree that You have the sole responsibility for all Content and that NewTek has no responsibility or liability for the deletion or failure to store any Content and other communications or transmissions enabled through the use of the Services.
5.5 You are responsible for compliance with all laws relating the use of the Services and Content, including laws relating to intellectual property rights, privacy, copyright and laws requiring third party consent to use the Content.
- PROHIBITED USE
6.1 You shall not copy, adapt or modify the Software or Services, develop or distribute any Software or Services or any other works derivative thereof, or use any variation of the Software or Services. You shall not, and shall not permit any third party to, disassemble, de-obfuscate, reverse engineer, attempt to find the underlying code of, or decompile any Software or Services or any part thereof, or cause any Software or Services to be subject to the terms of any open source software license. You shall retain and shall not alter or obscure any notices, markings or other insignia affixed to the Software or Services, related documentation or any part thereof.
6.2 You may not use the Services to operate in a time-sharing, out-sourcing or service bureau environment or in any way allow third parties to use or access the Software and Service.
6.3 You may not use the Services or upload, edit, manage, publish or broadcast Content in a manner that would defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or intellectual property rights of others or Content prohibited by law (“Prohibited Content”).
6.4 You agree that You have the sole responsibility for all matters arising out of or in connection with the activities of the Users or the Content and ensure that You or the Users do not upload, publish or include any Prohibited Content. NewTek, or its suppliers, have no obligation to undertake any pre-screening, editing, reviewing or monitoring of the Content, preventing or identifying infringement of intellectual property rights and assumes no responsibility or liability relating thereto. If NewTek is sued by a third party as a result of Your violation of the aforementioned, You agree to fully indemnify NewTek (including our officers, directors, employees and agents) against any fees, fines, costs, liens, judgments and expenses that any of these persons may incur as a result of any such action.
6.5 To the extent NewTek reasonably determines, it reserves the right (but shall have no obligation) to remove any Prohibited Content from the Service. You agree to immediately take down any Prohibited Content, including pursuant to a take down request from NewTek. In the event that You elect not to comply with a request from NewTek to take down Prohibited Content, NewTek reserves the right to directly take down such Content or to disable the Service. NewTek has no obligation to pay any refunds due to removal or take down of Prohibited Content or disabling Services under this Section 6.5.
- BETA SERVICES
7.1 NewTek may from time to time offer Services that are not generally available to all NewTek customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be provided at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited release or pre-release. Beta Services are still in development and NewTek may change the functionality or other aspects of the Beta Services at any time.
7.2 You will not be required or obligated to use any Beta Services. NewTek may cease offering any Beta Services, or cease offering Beta Services at no cost, at any time in its sole discretion. Notwithstanding anything to the contrary in this Agreement, Beta Services are provided “As is” and “As available” and without any representation or warranty of any kind.
You agree to indemnify and hold NewTek harmless from any third party claim, loss, or damage related to Your use of the Software or Service, or any breach of this Agreement, including all attorney´s fees.
- INTELLECTUAL PROPERTY
Title to and ownership of and all proprietary rights, including all intellectual property rights, in and to the Software and Service, all modifications thereto and derivative works thereof, and related documentation and all partial or complete copies thereof shall at all times remain with NewTek. As between the parties, You hereby acknowledge that NewTek is the sole owner of all right, title, and interest to all Software and Service, all modifications thereto and derivative works thereof, and related documentation, and any intellectual property rights therein. Any feedback You provide regarding the Software and the Service shall be and is hereby assigned to NewTek. NewTek shall have the right to use any such feedback in any manner in current or future products or services, without further compensation or obligations to You.
- WARRANTY; DISCLAIMERS
10.1 All Software and Service are provided “As Is” and “As Available”. NewTek does not warrant that the Software or Service will be error-free or operate in an uninterrupted or continuous manner.
10.2 EXCEPT AS OTHERWISE EXPRESSLY SET OUT HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SOFTWARE, EQUIPMENT AND HOSTED SERVICES ARE PROVIDED “AS IS” AND NEWTEK AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
11.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEWTEK SHALL NOT HAVE LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUES, LOSS OF USE OF OR DOWNTIME COST OF SOFTWARE, HOSTED SERVICES OR EQUIPMENT, COST OF CAPITAL, COST OF AND PROCUREMENT COSTS FOR SUBSTITUTE GOODS, FACILITIES OR SERVICES.
11.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEWTEK’S LIABILITY HEREUNDER SHALL BE LIMITED TO THE REFUND OF THE AMOUNTS RECEIVED BY NEWTEK FOR SOFTWARE AND SERVICE.
- DATA PROTECTION AND PRIVACY
12.2 To the extent that NewTek processes any personal data of Users (or any other individuals) on Your behalf and (i) that personal data relates to Users or other individuals located in the European Economic Area (“EEA”); or (ii) You are established in the EEA, NewTek and You agree to be bound by the provisions of the NewTek Data Processing Agreement which shall apply to the processing of such personal data.
- COMPLIANCE WITH LAWS
13.1 You agree to use the Services in accordance with all applicable laws, including, but not limited to, those relating to money laundering, anti-terrorism and anti-corruption.
13.2 You hereby acknowledge and agree that the Services and Confidential Information may be subject to applicable export control and trade sanctions laws, regulations, rules and licenses, including without limit those of the U.S., the E.U. and other territories ("Export Control and Sanctions Rules"). You agree to comply with the Export Control and Sanctions Rules. In particular, but without limit, You will not, and will procure that none of Your partners or employees will use, sell, resell, export, re-export, dispose of, disclose or otherwise deal with the Services or Confidential Information, directly or indirectly, to any country, destination or person without first obtaining any required export license or other governmental approval, and completing such formalities as may be required by Export Control and Sanctions Rules. You represent and warrant that You and the Users are not persons identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders List.
13.3 You shall not do anything which would cause NewTek to be in breach of the Export Control and Sanctions Rules and shall protect, indemnify and hold harmless NewTek from any fines, losses and liabilities incurred by You as a result of the failure to comply with this Section 13. Failure by You to comply with any part of this Section 14 shall constitute a material breach of this Agreement. NewTek reserves the right to cancel any Service at its sole discretion if NewTek believes You have failed to comply with any part of this Section 13.
- GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of Texas, without resort to provisions thereof regarding the conflict of laws, and the competent courts of Texas shall have exclusive jurisdiction over the parties with regards to this Agreement.
15.1 NewTek may terminate this Agreement at any time for any reason and upon termination, You must discontinue to use the Software and Service. If You are not satisfied with the Software or Service, Your sole remedy is the discontinue the use of the Software and Service.
15.2 Sections 5 through 17 shall survive the termination or expiration or this Agreement.
16.1 NewTek shall not be liable for delays or non-fulfillment of its, or its suppliers, obligations under this Agreement or other losses arising hereunder due directly or indirectly to causes beyond NewTek’s or its suppliers’ reasonable control, including, but not limited to, acts of God, acts (including failure to act) of any governmental authority, official export restrictions, Internet disruptions, hardware or software limitations or compatibility with the Software or Service.
16.2 This Agreement constitutes the entire and sole agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understanding, agreements, representations or warranties, whether oral or written, with respect to the subject matter hereof. NewTek may change or supplement the terms of this Agreement at any time at its sole discretion by providing a notice to You. If You do not agree with the changes to the terms of this Agreement, You should discontinue to use the Software and Service.
16.3 You shall not assign or transfer this Agreement or its rights or obligations pursuant to any license granted hereunder without the prior written consent of NewTek. NewTek may assign this Agreement to a successor in interest in the context of a change of control.
16.4 If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court, the remaining provisions will remain in full force and effect.
- THIRD-PARTY LICENSE
The Software and Service may contain copyrighted third-party software as well as open source software. The third-party licensors retain all intellectual property rights in the third-party software. You can use third-party software and open source software in support of Your use of the Software and Service in accordance with the terms of this Agreement.