1. ACCEPTANCE AND TERMS OF SERVICE
Updates to Terms. NOVU reserves the right, at its discretion, to change, modify, add or remove portions of these Terms at any time. Please check these terms and conditions periodically for changes. Your continued use of the NOVU Application following the posting of changes to these Terms will mean that you accept those changes.
Electronic Form/Communications. By accessing the NOVU Applications, you consent to having this Agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail or by posting notices on the NOVU Applications. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
2. USE OF THE NOVU PLATFORM AND CONTENT
a. License. Subject to these Terms and any fees as applicable, NOVU grants you a limited, non-exclusive, non-transferable, revocable right to use the NOVU Platform. All other rights are expressly reserved by NOVU. You agree that you will not, unless specifically permitted by us (i) copy, display or distribute any part of the Content or NOVU Applications, in any medium, without NOVU prior written consent, (ii) alter or modify any part of the NOVU Applications other than as may be reasonably necessary to use the NOVU Applications for their intended purpose, (iii) alter any Content or change or remove any copyright or other proprietary notices; or (iv) install, post or distribute any part of the Content on any electronic network, including without limitation the Internet and the World Wide Web, or create a database (electronic or otherwise) using any portion of the NOVU Applications or Content. Use of the NOVU Applications or Content via mechanical, programmatic, robotic, scripted, spider, manual or any other automated means is strictly prohibited. Unless otherwise agreed to by NOVU in writing, use of the NOVU Applications or Content is permitted only via manually conducted, discrete, individual search and retrieval activities. You may not conduct any kind of systemic retrieval of data or Content from any NOVU Application.
b. Withdrawal. NOVU reserves the right at any time to withdraw from the Content any item or part of an item for which it no longer retains the right to publish, chooses to no longer offer for any reason, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.
c. Registration and Profile Creation. In order to access certain features of the NOVU Applications, you may be required to register and/or create a user profile (an “Account”) by creating a username and password and providing certain profile and contact information. We may require or permit you to use your credentials for a third-party platform (such as Facebook or LinkedIn) to so register (a “Social Sign-On”). Your Account shall only be used by you and only in connection with the applicable NOVU Application and may not be used in connection with other NOVU products. You are responsible for maintaining the confidentiality of your Account and password, and are responsible for all activities that occur under your Account and password. Sharing, selling or transferring your Account or password with or to any other person or making it available to multiple users on a network is strictly prohibited. You hereby agree to (i) provide information about yourself as prompted by the registration form that is true, accurate, current and complete; (ii) maintain and promptly update your personal information (by sending an appropriately worded e-mail to firstname.lastname@example.org to keep it fully up to date); (iii) ensure that you exit from your member account at the end of each session; and (iv) notify NOVU in writing of any unauthorized use of your Account or password or any other breach of security at email@example.com. 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 or another person’s name, likeness, voice, image or photograph. If you provide (or we have reason to suspect that you have provided) any information that is untrue, inaccurate, not current, or incomplete, or there is unauthorized use of your Account or we suspect fraudulent or abusive activity, we have the right, among other remedial options, to require you to use and pay for an additional account for the relevant product and/or interrupt, restrict, suspend or terminate your current or future use of or access to the NOVU Applications (or any portion thereof), without notice to you. You shall cooperate with us in any fraud investigation and use any reasonable fraud prevention measures we prescribe. Failure to cooperate will result in your liability for all fraudulent usage.
d. No Interference. You will take no action to interfere with, interrupt, destroy or limit the functionality of the NOVU Applications or any computer software or hardware or telecommunications equipment. You may not use the NOVU Applications in any manner that could damage, disable, overburden, or impair any NOVU server, or the network(s) connected to any NOVU server, or interfere with any other party’s use and enjoyment of any NOVU Applications. You may not attempt to gain unauthorized access to any NOVU Applications, other accounts, computer systems or networks connected to any NOVU server or to any of the NOVU Applications, through hacking, cracking, distribution of counterfeit software, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the NOVU Applications. You may not reverse engineer, decompile or disassemble any software accessed through NOVU Applications, including any proprietary communications protocol used by NOVU.
e. Security. NOVU has implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
f. Modification to Services. NOVU has the right to modify the NOVU Applications and Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of NOVU in providing its products, services, Content or any NOVU Applications is to stop using the NOVU Applications as set forth herein.
3. PAID SUBSCRIPTIONS
If you purchase a subscription to access the NOVU Services and Web Applications (“Subscription”), the Subscription shall be subject to these Terms, as well as the terms and conditions set forth in the NOVU Product Subscription Agreement (“Product Agreement”), including the applicable subscription fee (“Fee”), payment terms and length of Subscription (“Subscription Period”). The Product Agreement may specify the number of user accounts authorized to access the NOVU Applications and/or Content pursuant to that subscription (“Authorized Users”). For the avoidance of doubt, and notwithstanding the foregoing, Authorized Users will be limited pursuant to and as stated in the Product Agreement, including limitations by number of users or a user’s office location. In such cases, access to and use of the NOVU Applications and/or Content by any other third party is not permitted. Any increase to the number of Authorized Users must be approved by NOVU in writing and may be subject to additional fees.
With respect to all Subscriptions, you shall:
- ensure that all Authorized Users accessing the Content are appropriately notified of the importance of respecting the intellectual property rights in the Content and of the sanctions which NOVU imposes for failing to do so;
- use best efforts to protect the Content from unauthorized use or other breach of these Terms;
- monitor compliance and immediately upon becoming aware of any unauthorized use or other breach, inform NOVU and take all appropriate steps to ensure that such activity ceases and to prevent any recurrence;
- provide NOVU with information sufficient to enable NOVU to provide access to the Content. Should you make any significant change to such information, you will notify NOVU not less than ten (10) days before the change takes effect; and
- ensure that only Authorized Users are permitted access to the Content. Your right to use the Content is not transferrable. Any password or right given to you to obtain information is not transferable.
4. Refunds, Late Payments and Taxes.
- All fees paid and charges made prior to the expiration or termination of your Subscription, as provided herein, including any advance charge or payment for the Subscription Period during which you terminate your Subscription, are non-refundable. Termination of your Subscription shall not relieve you of any obligations to pay accrued charges.
- Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Subscription to the applicable Content.
- Modifications to Fees or Billing Terms: NOVU RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your Subscription by contacting customer service at firstname.lastname@example.org. Your continued use of the Content following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
5. Delivery and cancellations. Where your Subscription or product order involves the delivery of a physical item or items, they will be delivered to the address that you indicate when you place your order through any NOVU Application and the risk of damage to or loss of such items shall pass to you at the time of delivery even if they have not been received by you in person. Any times quoted for delivery are approximate only and NOVU shall not be liable for any delay in delivery howsoever caused. If you experience any delivery issues, please contact customer service at email@example.com.
6. INTELLECTUAL PROPERTY OWNERSHIP
NOVU or its licensors, suppliers or other designees owns all right, title and interest in and to the Content and the NOVU Applications (including all materials, including but not limited to all text, logos, photographs, graphics, images, illustrations, designs, icons, photographs, databases, video, audio, software, html, source and object code, algorithms, business logic, modules, programs, links and other materials). You shall not, and shall not permit anyone else to, reproduce, copy, distribute, publish, transmit, broadcast, sell, license or otherwise access or use all or any part of the Content or any information contained therein without the prior written consent of NOVU. All NOVU brands and trademarks (whether registered or unregistered) and graphics, logos, designs, page headers and button icons are subject to the intellectual property rights of NOVU and neither they nor any confusingly similar versions may be used by you including, but not limited to as part of any trademarks and/or domain names without NOVU prior written consent.
Downloadable mobile products. Copyright in any software that is made available for download from any NOVU Application shall belong to NOVU and/or our software suppliers. Your use of the software is governed by the terms of any license agreement that may accompany or be included with it. Do not install, download or use any software unless you agree to such license agreement.
7. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
Materials may be made available via the NOVU Applications by third parties not within NOVU’s control. NOVU is under no obligation to, and does not, scan content used in connection with the NOVU Application for the inclusion of illegal or impermissible content. However, NOVU respects the copyright interests of others. It is NOVU’s policy not to permit materials known by NOVU to infringe another party’s copyright to remain on the NOVU Applications. If you believe any materials on an NOVU Application infringe a copyright, you should provide us with written notice that at a minimum contains:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NOVU to locate the material;
- information reasonably sufficient to permit NOVU to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to NOVU’s designated agent as follows:
NOVU AGENCY LLC
Attn: General Counsel
18101 Von Karman, Suite 960
Irvine, CA 92612
It is NOVU’s policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.
a. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and NOVU or its successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and NOVU must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR NOVU MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, NOVU will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) NOVU also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or NOVU may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Orange County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located Orange County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Orange County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor NOVU shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Orange County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at https://www.adr.org.
This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
a. Additional Terms. Your use of the NOVU Applications is subject to any and all additional terms, policies, rules or guidelines that we may post or link to on the NOVU Applications (collectively, the “Additional Terms”), such as any other terms or rules applicable to particular features, promotions or content on the NOVU Applications. All such Additional Terms are hereby incorporated into this Agreement by reference.
b. Guarantees of results. NOVU does not guarantee any results whatsoever for any of its services. NOVU shall not be liable for any damages of any nature suffered by any customer, user, or any third party resulting in whole or in part from the service(s) provided by NOVU. Any and all depictions, illustrations, or photographs of results, scores, profits, returns, gains, growth, advantages or any other metrics are merely depictions of best case scenarios and are not guarantees of any kind. Your sole recourse if you are not satisfied with the service(s) provided is to terminate your service(s) with NOVU.
c. Violations of this Agreement; Injunctive Relief. NOVU reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including without limitation the right to block access to the NOVU Applications from a particular account, device or IP address. NOVU shall not be liable for any damages of any nature suffered by any customer, user, or any third party resulting in whole or in part from NOVU’s exercise or its rights under this Agreement. Without limiting the foregoing, you acknowledge that the Content is highly proprietary material in nature and that unauthorized copying, transfer or use may cause NOVU irreparable injury that cannot be adequately compensated for by means of monetary damages. You agree that any breach of this Agreement by you may be enforced by NOVU by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies.
d. Termination. In the event of notice of intent to terminate your Subscription, you may retain access to your account within the NOVU member account portal up to ONE (1) day prior to your next renewal date, after which all Subscriptions, accounts and services will immediately cease and account access will be revoked. You may retain ownership of any web applications, designs and/or content (“Services Rendered”) created as part of your services/subscription and host on a web server of your choosing should you terminate your account only if your account has been active, in good standing and valid for a minimum of TWELVE (12) CONSECUTIVE MONTHS (“Minimum Term”). Alternatively, you may pay a pro-rated fee to NOVU equivalent to a 12-month subscription at your monthly plan’s rate at the time of termination, including any and all active promotions, discounts or special rates offered, and excluding any fees already paid, if you choose to cancel your services prior to the TWELVE (12) consecutive month minimum term AND also wish to retain ownership over Services Rendered. If you do not wish for NOVU to transfer ownership of Services Rendered to you, you may cancel your account and services at any time.
e. Chargebacks. We have a zero-tolerance stance against chargebacks and disputes. If our billing system detects a chargeback on a payment or a dispute with your financial institution, we reserve the right to terminate your account immediately at our sole discretion. All NOVU Agency services, including, but not limited to, web hosting, website maintenance, support, plugin & theme updates, and SEO services, will be halted immediately. We do not guarantee your data will be backed up or retained in this event. Should you attempt a chargeback or dispute with your financial institute, any ownership over, or licenses to use, any web applications, content and/or intellectual property ("Services Rendered") will immediately cease to exist and all rights and ownership will return to NOVU effective immediately.
f. Definitions Of "In Good Standing". The definition(s) of the phrase "In Good Standing" as it pertains to the NOVU terms and conditions agreement are that you ("Client") will not attempt to withhold from NOVU any payments owed, regardless of the dollar amount ("non-payment" or "late payment"), defraud or attempt to defraud NOVU in any way (i.e. initiating a chargeback after services rendered, etc...). In addition, you will not threaten, coerce, blackmail, harass, provoke, bribe or abuse, regardless of the nature (i.e. verbal, mental or physical, etc...), our support representatives, developers and account managers and/or any associated third-party service providers ("vendors") in any way. Any violations will immediately place you and your account into "poor standing" with NOVU. When in poor standing with NOVU, any Subscriptions, accounts and services may be terminated at our sole discretion with no guarantee of transfer of ownership of Services Rendered to the Client.
g. Other. This Agreement, including any schedules hereto, constitutes the entire agreement and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. NOVU may assign these Terms, in whole or in part, at any time. The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation or enforceability of the remainder of this Agreement. The waiver by NOVU of a breach or violation of any provision of this Agreement shall not constitute a waiver of any subsequent or other breach or violation. The failure of NOVU to partially or fully exercise any rights or the waiver of NOVU of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by NOVU or be deemed a waiver by NOVU of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of NOVU under these Terms and any other applicable agreement between you and NOVU shall be cumulative, and the exercise of any such right or remedy shall not limit NOVU’s right to exercise any other right or remedy.
h. Contact Us. If you have a question or issue relating to a Subscription, such as changing your mailing address or cancelling a Subscription, please email customer service at firstname.lastname@example.org or create a support ticket through your NOVU client portal account. For other questions regarding these Terms, you can write to NOVU Legal at: 18101 Von Karman Suite 960, Irvine CA 92612.
9. Minimum Service Term
a. Minimum Service Term: By signing up for NOVU's website services (either the "website" or "E-Commerce" plans), you agree to remain a customer for a minimum of 2 calendar years ("minimum term") before ownership and any rights over the website(s) created may be transferred to you. Prior to the fulfilment of your minimum term, you are granted a limited set of rights to use the website for your business purposes, and you may not transfer the website to another hosting provider, or remove or alter any user accounts belonging to NOVU personnel, employees, and contractors ("NOVU personnel"). NOVU reserves the right to restrict the usage, functionality and privileges of any and all user accounts on the website, in any way we deem necessary. Prior to the fulfilment of your minimum term, any and all ownership rights remain the sole property of NOVU. Should you terminate your service agreement prior to the minimum term, NOVU will retain ownership over the website(s) created as part of your terminated service(s) indefinitely, and NOVU reserves the right to store, archive, sell or resell (in part or in whole), duplicate, alter or delete said website(s).
b. Buyout clause: Should you choose to terminate your service agreement or subscription with NOVU prior to the fulfilment your minimum term, you may exercise your right to a "buyout" of your contract to gain immediate ownership over the website(s) created by NOVU as part of your service. The total cost of the buyout amount is 2 calendar years' fees for the service plan you are choosing to terminate (the monthly price multiplied by 24 months), minus a pro-rated amount of any subscription fees already paid, and including any penalties or fees incurred before and after your termination ("buyout fee"). You agree to pay this fee, in whole, before ownership of the website(s) created as part of your terminated service(s) is transferred to you. Receipt of payment of your buyout fee by NOVU constitutes fulfilment of your minimum term.
c. Migrations and hosting: Prior to the fulfilment of your minimum term, you are required to use NOVU's web hosting, and you may not transfer or migrate the website(s) created as part of your service(s) to another web server or host ("host" or "hosting"). Upon termination of your service, and only if you have fulfilled your minimum term, you are required to migrate the website(s) to your own hosting service within 5 business days from the date of your termination. Should you terminate your service(s), regardless of fulfilment of the minimum term, NOVU reserves the right to delete and remove any website(s) and related backups, copies, clones or staging sites from its servers after a 5 business day grace period. NOVU does not guarantee that any website(s) will be backed up or archived, or in any way retrievable/restorable, after deletion.
d. User accounts, user privileges and access: Prior to the fulfilment of your minimum term, you and any other users of the website, excluding NOVU personnel, employees or contractors, will only be granted user account(s) with limited user privileges. Certain "admin privileges" will be disabled, including, but not limited to: 1) the ability to create, edit, or remove website user accounts; 2) the ability to add, update or remove plugins and themes; 3) the ability to migrate, transfer or clone the website to another host; 4) the ability to alter the domain or administrator email account on the website; 5) any other functionalities, abilities, and user privileges NOVU deems appropriate. You may not remove or alter any user accounts belonging to NOVU personnel, employees or contractors, or attempt to revoke or restrict access to the website for any NOVU personnel in any way. NOVU personnel reserve the right to create, alter, or revoke, any user accounts belonging to any persons at any time. NOVU personnel reserve the right to access or log into the website(s) at any time.
e. First-party and third-party services: Any first-party or third-party services, softwares or platforms provided to you by NOVU as part of your service will be terminated immediately upon your termination of your service(s). Examples of such services include, but are not limited to, Content Delivery Network (CDN) service, back-up services, third-party plugins and themes that require payment or license to use in any way, and service from contractors. If you have fulfilled the minimum term, and wish to continue using any third-party services, softwares or platforms after the termination of your service(s), you are required to purchase your own access/license/subscription to said services.
Last Updated: May 1, 2021