Acceptance Ninetyplay Inc. (we, us, or our) owns the cloud-based software, including all instructions in hard copy or electronic form and any update, modification, or release of any part of that software (Software), which is accessible at client.shayk.com, shayk.com, and any other associated websites (each the Site).
These terms and conditions and all documents attached to or referred to in these terms and conditions (together the Terms):
- set out the terms and conditions upon which we agree to grant you a right to use the service via the Software as described on the Site (Services); - are binding on you from the date (Effective Date) on which we provide you with an account to enable you to access and use the Services (Account) until the date on which your Account is terminated in accordance with these Terms (Term).
Please read these Terms carefully and immediately cease your use of the Account and terminate your engagement with us in accordance with clause 13.
By creating an Account and/or accessing and/or using the Services you:
- warrant to us that you have reviewed these Terms including our Privacy Policy available on the Site (with your parent or legal guardian if you are under 18 years of age) and you understand and agree to be bound by them; - warrant to us that you have the legal capacity to enter into a legally binding agreement or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Services and they have agreed to these Terms on your behalf; - warrant to us that you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services; - warrant to us that you have all hardware, software, and services which are necessary to access and use the Services; and - agree to use the Services in accordance with these Terms.
Registration and Account You will be required to create an Account with us in order to access and use the Services. You must ensure that any personal information you give us when creating an Account is accurate, complete, and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.
It is your responsibility to keep your Account details (such as password) confidential. You are liable for all content posted and all activity on your Account, including purchases made using your Account details, and you must immediately notify us of any unauthorized use of your Account.
At our sole discretion, we may refuse to allow any person to create an Account.
Collection Notice
We collect personal information about you in order to enable you to access and use the Site, to contact and communicate with you, to respond to your inquiries, and for other purposes set out in our Privacy Policy.
We may disclose your information in accordance with our Privacy Policy to third-party service providers who help us deliver our Services (including information technology service providers, data storage, web-hosting, and server providers, professional advisors, payment systems operators, and our business partners) or as required by law. If you do not provide this information, we may not be able to provide the Services to you. By accepting these Terms, you acknowledge and agree that in certain circumstances, we may disclose your personal information to third parties located or who store data in locations outside the United States (and such locations may not have laws that offer the same information and privacy protections as those in the United States).
Our Privacy Policy contains further information about: (i) how we collect, store, and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. By providing personal information to us, you consent to us collecting, holding, using, and disclosing your personal information in accordance with our Privacy Policy.
Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyze, and compile statistical and performance information based on and/or related to your use of the Services in an aggregated and anonymized format (Analytics). You agree that we may make such Analytics publicly available provided that it: (i) does not contain identifying information; and (ii) is not compiled using a sample size small enough to make the underlying data identifiable. We and/or our licensors own all right, title, and interest in and to the Analytics and all related software, technology, documentation, and content provided in connection with the Analytics, including all intellectual property rights in the foregoing.
License
In consideration for payment of the fees (as set out on the Site or any invoice or quote which we provide to you for your chosen Service) (Fees) and your compliance with the provisions of these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal, and revocable worldwide license to access and use the Services for your own business/personal purposes for the Term (License).
You agree that: - the License permits you to use the Services in accordance with the Service’s normal operating procedures and our instructions (as available on our Site or as we may advise to you from time to time); and - we reserve the right at any time, from time to time, and without penalty to refuse any request in relation to the Services that we deem inappropriate, unreasonable, illegal, or otherwise non-compliant with these Terms.
We may from time to time be required to modify or temporarily or permanently restrict or discontinue your License and subsequent access to the Services. In such case, we will provide you with as much notice as is possible and will work with you to find an appropriate resolution.
Restrictions
You acknowledge and agree that these Terms incorporate by reference the terms of any acceptable use policy as set out on the Site or as provided to you from time to time. You must not access or use the Services except as permitted by the License, and you must not do or omit to do any act that would or might invalidate or be inconsistent with our intellectual property rights in the Services or Software. Without limiting the foregoing provisions, you must not: - resell, assign, transfer, distribute, or provide others with access to the Services; - “frame,” “mirror,” or serve any of the Services on any web server or other computer server over the Internet or any other network; - copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile, or enhance the Services or Software; - alter, remove, or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Services or Software; - use the Services in any way which is in breach of any applicable local, state, federal, and international laws and regulations (Laws) or which infringes any person’s rights, including intellectual property rights; - use the Services to transmit, publish, or communicate material that is defamatory, offensive, abusive, indecent, menacing, or unwanted; - use the Services in any way that damages, interferes with, or interrupts the supply of the Services; - introduce malicious programs into our hardware and software or our hardware, software, and services which are integrated and operate together, including our networks, including viruses, worms, trojan horses, keystroke loggers, rootkits, and e-mail bombs; - reveal your Account password to others or allow others to use your Account; - use the Services to make fraudulent offers of goods or services; - use the Services to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorized to access, or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes); - use any program/script/command or send messages of any kind with the intent to interfere with or disable any person’s use of the Services; - conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction, and data harvesting) on or in relation to the Services; - send any unsolicited email messages through or to users of the Services or to send any form of harassment via email or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); - use the Services to circumvent user authentication or security of any of your networks, accounts, or hosts, or those of your customers or suppliers; or - solicit or entice away any person or organization that was our actual or prospective client, employee, contractor, representative, agent, or developer during the Term.
Custom Projects Custom Projects If you require a specific or bespoke Service which is not listed on our Site (Custom Project), you can schedule a consultation with us and we will provide you with a quote for the Custom Project (and for the purpose of these Terms, “Fees” includes the price payable by you for the Custom Project as determined by this clause).
If the nature or scope of your Custom Project changes (as reasonably determined by us), we reserve the right to provide you with a revised quote.
In the event you decide to cancel your Custom Project, you will be responsible for any losses suffered by us as a result of your termination calculated as follows: the greater of the portion of the Custom Project already completed by us or 50% of the initially quoted figure we provided to you. This cost aims to cover expenses incurred due to project preparation and work performed up to the point of termination.
If, whilst undertaking your Custom Project, we are of the view that it is beneficial to change certain parameters of your Custom Project, we reserve the right to do so without your consent provided that it will not increase the quote. If a change in the parameters will result in an increase to the Fees, we will notify you prior to undertaking the changes. If you do not agree to the Fee change, you may cancel the Custom Project in accordance with clause 13(1).
Technical Problems
In case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need help, please check the support we provide as stated on our Site or, failing that, please email us at support@shayk.com.
Your Responsibilities and Obligations
You must, at your expense: - provide us with all reasonable assistance, information, and cooperation required in order for us to supply the Services in an efficient and timely manner; - provide us and our personnel with reasonable access to your computing environment, including all systems, information technology, and telecommunications services (Computing Environment), if necessary for us to supply the Services; - ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked; and - make any changes to your Computing Environment, such as system upgrades, that may be required to support the delivery and operation of any Service.
Payment
Where an amount is owed to us under these Terms, you must pay us such amount without set off or delay using any of the payment methods set out on the Site and in accordance with reasonable payment terms specified on our Site or in any invoice or quote that we provide to you.
You are responsible for reviewing the pricing schedule, features, and limits associated with the Services prior to accessing, using, or ordering our Services on the Site. We will provide notice of any significant pricing changes. We may refund Fees to you under reasonable circumstances, subject to specified conditions. In the event of refunds, we may deduct payment processing fees and administration costs, but these deductions will be transparent and reasonable. If you change the Services or fail to make a payment in accordance with our invoice or quote, the credit card linked to your Account will be charged the Fee. Please ensure that this credit card has sufficient funds to pay the Fee. If your credit card expires and you do not cancel your Account, you will remain responsible for paying the Fee for the Services which will accrue to your Account until you update your payment details or until we receive a cancellation notice (as the case may be).
All Fees exclude taxes. You are responsible for all taxes, levies, or duties imposed by taxing authorities in your own country and you shall be responsible for payment of them. We have no responsibility to them on your behalf. The Fee is subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes on our Site, via email, or via a notification to your Account. If you do not agree to the Fee change, you may cancel your Account in accordance with clause 13(1).If any payment is not made in accordance with our payment terms, we may (at our absolute discretion): - immediately cease your access to the Services; - charge interest at a rate of 15% per annum compounded daily on the outstanding amount starting from 5 days after the due date for payment; - engage debt collection services and/or commence legal proceedings in relation to any unpaid amounts; and/or - report you to independent credit data agencies.Where any of the Services are provided free of charge or at a reduced rate, you must comply with any additional conditions associated with those Services which we may advise you of from time to time. Failure to comply with these additional conditions may result in you being charged the full Fees for that Service which Fees must be paid within 10 days of the notification of our discovery of such failure.Where any of the Services are subscription-based, we will automatically charge the credit card linked to your Account in advance of the next billing cycle for your subscription until you cancel the Service in accordance with these Terms.We will not be liable for any fee charged by your financial institution or an intermediary, including without limitation any international payment fees, credit card payment fees, or wire transfer fees unless such fees result from our error.
Intellectual Property Rights
In this clause, the following terms have the following meanings in relation to Intellectual Property Rights: - Intellectual Property Rights means all copyright, trademark, design, patent, trade, business, company, and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms, both in the United States and throughout the world. - Existing Material means Material of either party other than New Material; - Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data, and other materials in any media whatsoever; and - New Material means Material that is created, written, developed, or otherwise brought into existence as part of the Services.
Each party retains ownership of the Intellectual Property Rights in its Existing Material; and nothing in these terms transfers ownership of or assigns any Intellectual Property Rights in either party’s Existing Material to the other party.
You grant to us a non-exclusive, royalty-free, non-transferable, worldwide, and irrevocable license to use your Existing Material to the extent reasonably required to perform any Services.
You warrant that our use of your Existing Material will not infringe the Intellectual Property Rights of any third party, and you will indemnify us from and against all losses, claims, expenses, damages, and liabilities (including any taxes, fees, or costs) which arise out of such infringement.
We grant to you a non-exclusive, royalty-free, non-transferable, and revocable license to use its Existing Material to the extent: - such Existing Material is incorporated into the New Material; and - such use is reasonably required for you to enjoy the benefit of the Services.
Intellectual Property Rights in New Material are assigned to and vest in us. We grant to you a perpetual, irrevocable, transferable, worldwide, and royalty-free license (including the right to sublicense) to use the New Material for the purpose of enjoying the Services.
This clause will survive termination of your Account.
Moral Rights and Data
- Moral Rights: If you or any of your personnel have any moral rights in any Data, you (and you will ensure that your personnel) consent to the infringement of those Moral Rights by us or our personnel. - Limit: There is a limit to the aggregate file size of your Data on the Services. Each Data item cannot exceed 50MB in size. If your bandwidth usage significantly exceeds the average bandwidth usage of other customers (as determined solely by us), we may immediately suspend your Account until you can reduce your bandwidth consumption or impose an appropriate Fee commensurate with such excess usage. - General: You must at all times ensure the integrity of your Data and that your use of your Data is compliant with all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases, and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) your Data and its transfer to and use by us as authorized by you under these Terms do not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection, and disclosure authorized in these Terms is not inconsistent with the terms of any applicable privacy policies. We assume no responsibility or liability for your Data, and you shall be solely responsible for your Data and the consequences of using, disclosing, storing, or transmitting it. - Sensitive Data: Unless otherwise agreed by us in writing, you will not submit to the Services (or use the Services to collect): (i) any personally identifiable information except as necessary for the establishment of your Account or if required for a particular Service; (ii) any patient medical or other protected health information; or (iii) any other information subject to regulation or protection under specific laws ((ii) and (iii) collectively (Sensitive Data). Notwithstanding any other provision to the contrary, we have no responsibility or liability for Sensitive Data. - Removals: We have no obligation to monitor any content uploaded to the Services. Nonetheless, if we deem such action necessary for any reason, we may (without limiting our other rights) remove your Data from the Services. We have no liability to you for removing your Data from the Services. - Security: We implement security procedures to help protect your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of your Data over networks that are not owned, operated, or controlled by us, and we are not responsible for any of your Data being lost, altered, intercepted, or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Data will always be secure, or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. - Independent Development: You acknowledge that we may currently or in the future be developing information internally or receiving information from third parties that is similar to your Data. Nothing in these Terms will be construed as a representation or agreement that we will not develop or have not developed products, concepts, systems, or techniques contemplated by or embodied in the Data, provided that we are not in violation of these Terms in connection with such development.
Indemnity and Liability
Despite anything to the contrary, to the maximum extent permitted by law, whether under statute, contract, equity, tort (including negligence), indemnity, or otherwise: - our maximum aggregate liability arising from or in connection with these Terms (including the Services or the subject matter of these Terms) will be limited to and must not exceed USD $100,000.00; and - we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use, and/or loss or corruption of data except to the extent caused by our gross negligence or willful misconduct.
Notwithstanding anything to the contrary, to the fullest extent permitted by law, we shall have no liability and you hereby release and discharge us from all liability arising from or in connection with any event or circumstance beyond our reasonable control, any fault, defect, error, or omission in your Computing Environment or Data, or any act or omission by you, your related parties, or a third-party service provider. In no event shall we be liable for: - injury, damage, or loss to any person or property; - failure or delay in providing the Services; - unavailability, outage, or interruption to the Services or your Computing Environment; or - breach of these Terms or any applicable laws except to the extent that such events or circumstances were foreseeable and could have been prevented by reasonable measures.
Despite anything to the contrary and to the maximum extent permitted by law, we do not warrant: - the availability of the Services; - the correctness or comprehensiveness of our data collection procedures, the Services, or any deliverables or output that is generated from the Services (Deliverables); or - the appropriateness and applicability of the Services or Deliverables for your particular purpose or correctness of any methodology, calculation, presentation, or otherwise in the analytical procedures in the Services or Deliverables.
You acknowledge and agree that: - the Services are provided on an “as is” basis; - you use the Services, the Deliverables, and any associated programs and files at your own risk; - the technical processing and transmission of the Services, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices; - all participants that you are using for experiments as part of the Services and whose information you provide to us expressly gave their permission to you to provide us with their information (including their email addresses) and to be contacted by us on your behalf; - we may use third-party service providers to host the Services. In the event that the providers of third-party applications or services discontinue their offerings or make them unavailable on reasonable terms, we reserve the right to discontinue any affected features. However, in such cases, we will make reasonable efforts to provide you with alternative solutions or features wherever possible. This discontinuation shall not render us liable nor entitle you to any refund, credit, or compensation; - the Services may use third-party products, facilities, or services. We do not make any warranty or representation in respect of the third-party products, facilities, or services; - we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with Data, hardware, or software with which it might be used. We will use reasonable endeavors to use files and programs that are free from viruses and defects, and where such viruses or defects occur, we will take reasonable steps to promptly rectify such viruses or defects upon you providing written notice to us in respect of the same; - from time to time, we may make certain services and/or features available to you for use which are still in their beta stage (Beta Services). Beta Services have not been fully tested and are provided on an ‘as is’ basis; and to the fullest extent permitted by law, we make no representations, warranties, or guarantees in relation to such Beta Services; - nothing in these Terms or the Services constitutes or is intended to constitute advice of any kind in relation to any commercial, marketing, or product management matter; - we provide analytics and research services, and our deliverables consist of survey data and analysis. Please note that these deliverables do not include final recommendations for your pricing or other decisions. You may choose to use this data and analysis at your own discretion and risk; and - we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
Despite anything to the contrary, to the maximum extent permitted by law, both parties mutually agree to indemnify each other and hold each other harmless from and against any loss, cost, liability, or damage, howsoever arising, suffered or incurred arising from or in connection with any claim relating to the party’s Data, the party’s use of the Services, or any breach of these Terms by the respective party, except to the extent that such claims result directly from the gross negligence or willful misconduct of the indemnifying party. This clause will survive termination of the Account.
Termination
You may terminate your Account at any time and for any reason by contacting us using the support email set out on the Site. In contacting us to terminate your Account, we require 2 business days’ notice. Subject to your Statutory Rights, no refunds will be given upon termination in accordance with this clause. Termination of your Account may take the form of disabling (blocking) it rather than complete removal of your data. We may at any time, and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the Services is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Services or other users, we may suspend or terminate your Account immediately without notice. You will continue to be charged for the Services during any suspension period in which you are in breach of these Terms. We may suspend overdue Accounts without notice to you. On termination of your Account and/or this Agreement, you must immediately pay to us all amounts due and payable to us under this Agreement and cease using the Services and Software.
General
- Force Majeure: If a party (Affected Party) is unable to perform any of its obligations under these Terms due to an event or circumstance beyond its reasonable control (other than your obligation to pay us any amounts due and payable under this Agreement) (Force Majeure) and it gives the other party prompt written notice of such, the Affected Party’s obligations shall be suspended to the extent necessary. The Affected Party must use reasonable efforts to limit the impact of the event on its performance and must continue to perform its obligations in full as soon as the Force Majeure ceases. - Disputes: Neither party may commence court proceedings relating to any dispute arising from or in connection with these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision). - Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your Account. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 48 hours in the case of post or at the time of transmission in the case of email. - Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing. - Relationship of parties: These Terms are not intended to create a partnership, joint venture, or agency relationship between the parties. - Severance: If a provision of these Terms is held to be void, invalid, illegal, or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions. - Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent. - Entire agreement: These Terms contain the entire understanding and agreement between you and us in respect of their subject matter. - Amendment: We are committed to transparency and fairness in our dealings with you. While we may need to update these Terms from time to time, we believe in providing you with adequate notice and the ability to make informed decisions. Here’s how we’ll do it: - Notice of Changes: If we make changes to these Terms, we will provide you with 30 days' written notice. - Billing Cycle Notice: For subscription-based Services, any changes will take effect at the commencement of your next billing cycle. We will provide you with advance notice at least 30 days before the changes become effective so you have time to review and decide whether to continue with your subscription. - Option to Terminate: If you do not agree with the updated Terms, you will have the option to terminate your subscription or account without incurring any additional charges or penalties.
Governing Law:
These Terms are governed by the laws of the State of Delaware. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Delaware and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. The Services may be accessed in the United States and overseas. We make no representation that the Services comply with the laws (including intellectual property laws) of any country outside of the United States. If you access the Services from outside the United States, you do so at your own risk and are responsible for complying with the laws in the place you access the Services.
For any questions, please contact us at: Ninetyplay Inc. Email: support@shayk.com Last update: 1 March 2024
