Updated November 25, 2014
- Term; Scope.
- If Client has entered into a Service Order Form, the Effective Date of this Agreement shall be the date listed as the Services start date on the Service Order Form. Except as otherwise stated on the Service Order Form, the term of this Agreement will continue until terminated in accordance with this Agreement. This Agreement will automatically renew for a period equal to such initial term unless either party notifies the other in writing at least thirty (30) days prior to expiration of such initial term or the then-current renewal term. Notwithstanding the foregoing, if Client has been granted access to the Services for evaluation purposes and no Service Order Form has been executed: (i) the Effective Date of this Agreement shall be the date Client’s Authorized User first registers an account on the Site on Client’s behalf and the initial term of this Agreement for evaluation purposes will be thirty (30) days; (ii) such initial term may be extended for the duration set forth in a Service Order Form executed by Nexegy with Client if the Client chooses to obtain a subscription to the Services; and (iii) unless such initial term is so extended, all accounts and all rights to access the Services under this Agreement will terminate with respect to Client and its Authorized Users upon the expiration of such initial term.
- License to and Description of Services.
- Nexegy hereby grants Client and its Authorized Users a nonexclusive and nontransferable license to access and use the Services solely during the term of this Agreement and in accordance with this Agreement, and solely for the internal business purposes of Client. Nexegy will provide Client with access to the Services identified on a Service Order Form. Nexegy may, from time to time in the ordinary course of business, refine, modify, or improve current functionality or develop additional functionalities for which it reserves the right to charge additional fees.
- Client, and each Authorized User, agrees not to: (i) permit any third party to access or use the Services; (ii) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (iii) modify or make derivative works based upon the Services; (iv) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; (v) “frame” or “mirror” any content contained on, or accessible from, the Services on any other server or Internet-based or Internet-connected device or service; or (vi) reverse engineer or access the Services in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Services, or (C) copy any ideas, features, functions or graphics of the Services.
- Content contained in the Services, including User Content but excluding Client Confidential Information (“Nexegy Content“) may not be modified, republished, reproduced, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of Nexegy. Client and all Authorized Users must abide by all copyright notices, information, or restrictions related to any Nexegy Content.
- Nexegy reserves all rights of ownership in the Services not expressly granted to Client or any Authorized User in writing herein
- Ownership and License Rights to Content on the Services
- Ownership of Content. Authorized Users retain ownership of all intellectual property rights in the information and content uploaded by them to the Services (“User Content”), and Nexegy and/or third parties retain ownership of all intellectual property rights in all Content other than User Content.
- User Content License to Nexegy. When an Authorized User upload or transfers User Content to Nexegy through the Services, it gives Nexegy a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of such User Content. The rights each Authorized User grants in this license are for the limited purpose of operating the Services in accordance with their functionality, improving the Services, and allowing Nexegy to develop new Services. The reference in this license to “derivative works” is not intended to give Nexegy itself a right to make substantive editorial changes or derivations, but does enable Authorized Users to redistribute User Content from one area to another in a manner that allows Authorized Users to, e.g., add their own text or other content to another Authorized User’s User Content.
- Each Authorized User also agrees that this license includes the right for Nexegy to make all User Content available to third parties selected by Nexegy, so that those third parties support Nexegy in its provision of the Services. This license to your User Content continues even if the Authorized User stops using the Services.
- Each Authorized User also agrees that it will respect the intellectual property rights of others, and represent that it has all of the necessary rights to grant Nexegy this license for all User Content it submits to the Services.
- Content License to Authorized Users. Nexegy grants each Authorized User a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, and create derivative works of User Content solely in connection with such Authorized User’s use of, and in accordance with the functionality and restrictions of, the Services.
- Without limiting any of the foregoing, it is Nexegy’s intention to create shared resources for Authorized Users under any Client account. Such resources may include a shared CRM tool containing contact information at potential customers. By entering any information through the Services, each Authorized User agrees that all such information is deemed User Content and may be used for the development of such shared resources in addition to any other purposes stated by Nexegy.
- Client Responsibilities.
Client and/or each Authorized User (as applicable), is responsible for obtaining and maintaining all equipment and services needed for access and use of the Services. Client, and each Authorized User, agrees not to use the Services to: (a) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, constitutes hate speech, or is otherwise offensive or objectionable; (b) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (c) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (d) impersonate any person or entity, or otherwise misrepresent Client’s affiliation with a person or entity; or (e) interfere with or disrupt Nexegy servers or networks connected to Nexegy, or disobey any requirements, procedures, policies, or regulations of networks connected to Nexegy. The Services may integrate third-party services (for example, Google Apps, Dropbox, WebEx, Twitter or Facebook) allowing Client and Authorized Users to post information to Web sites outside the Services. Client, and each Authorized User, agrees to inform itself of the terms and conditions of each of these integrated third-party services prior to use, and abide by such terms and conditions if Client utilizes such integrated services. If it is determined at any time that Client or any Authorized User is in breach of this Section 4, Nexegy may suspend services until the issue is resolved to Nexegy’s satisfaction, if Client does not first remedy the issue within the cure period set forth in Nexegy’s notice to Client.
“Nexegy” and the Nexegy logo, as well as certain other of the words and logos displayed on the Nexegy website or on Nexegy Content, constitute trademarks, trade names, or service marks (“Marks”) of Nexegy or other entities. Client is not authorized to use any such Marks without prior written consent from Nexegy. Ownership of all such Marks and the goodwill associated therewith remains with Nexegy or those other entities.
Nexegy’s inclusion of a link via the Services to any other Web site or Internet resource is for Client’s convenience only and does not signify Nexegy’s endorsement of such other Web site or Internet resource or its contents. Nexegy shall have no responsibility or liability for any information, software, or materials obtained from third-party Web sites or Internet resources.
- Passwords and Security.
When Client registers to use the Services, Client will be asked to provide a user name and password for a master account (“Master Account”). Using the Master Account, Client can create, modify, or delete accounts for Authorized Users (each, a “User Account”) up to the maximum number specified by Nexegy. Client’s subscription is personal to Client, and Client and each Authorized User are prohibited from sharing their user names and passwords. Client and each Authorized User are responsible for maintaining the confidentiality of all passwords for the Master Account and User Accounts, and Client and its Authorized Users are exclusively responsible for all activities that occur under such passwords. Client and each Authorized User agrees to immediately notify Nexegy of any unauthorized use of such password or any other breach of security related to the Services of which Client or such Authorized User becomes aware. Nexegy reserves the right, with notice to Client, to change the password to the Master Account or any User Account, if Nexegy believes that the applicable password is no longer secure.
Client must pay Nexegy per the payment schedule listed in the Service Order Form for Services. Fees for products and services not described in a Service Order Form will be invoiced as provided to Client, and shall be due and payable net thirty (30) days from the receipt of invoice. Client shall be responsible for any taxes, duties or withholdings based on Client’s order (excluding taxes based on Nexegy’s income). Nexegy may suspend the Services until all undisputed payments due for the Services are received. If there is a conflict in terms between this Agreement (including any Service Order Form) and a Nexegy invoice or any purchase order submitted by Client, this Agreement shall control. Any additional or different terms in invoices, acknowledgment forms, purchase orders, or other communications, are deemed material, are objected to, and rejected by the parties, unless agreed to in a signed writing by the parties. Nexegy shall have no obligation to refund prepaid fees under any circumstances.
Nexegy may terminate this Agreement for a material breach by Client thereof, if, within 30 days after receiving notice of Nexegy’s intent to terminate under this Section, Client fails to cure such material breach. Client may terminate this Agreement for convenience on 30 days’ notice during the term of the Agreement. On termination by Client, Client will be responsible for paying any remaining contracted fees that would have been due during the term if Client had not terminated. Sections 3(b), 3(c), 4(c), 4(f), 5 and 10-14 will survive the termination or expiration of this Agreement for any reason. Nexegy reserves the right to suspend or terminate an Authorized User’s access to the Services at any time for any reason, including, but not limited to, Nexegy’s reasonable belief that such Authorized User: (i) has violated these Terms, (ii) creates risk or possible legal exposure for Nexegy. Nexegy will notify Client of such suspension or termination. If Client registered for a trial use of the Services (the period specified as applicable to this trial use in connection with your trial enrollment, the “Trial Period”), Client must decide to purchase the Services within the Trial Period in order to retain any content posted or uploaded by Authorized Users under Client’s account during the Trial Period. If Client does not purchase the Services by the end of the Trial Period, Nexegy will have no obligation to retain any content or materials, including User Content, posted or uploaded under Client’s account. Upon termination of Client’s account for any reason, Nexegy reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Client; (b) delete any User Content under Client’s account; (c) prohibit access to the account by Client and each Authorized User under Client’s account, including without limitation by deactivating passwords; and (d) refuse future access to the Service by Client and each Authorized User under Client’s account. Upon termination of an Authorized User’s account for any reason, Nexegy reserves the right to (a) prohibit access to you’re the account by the Authorized User, including without limitation by deactivating passwords; and (b) refuse future access to the Service by the Authorized User.
- Client agrees to indemnify, defend, and hold harmless Nexegy, its parents, subsidiaries, affiliates, officers, directors, employees, consultants, and agents (together, the“Nexegy Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys’ fees) (together, “Claims”) brought by third parties (including Authorized Users) arising from or relating to (a) any information Client, or any of its Authorized Users, submits, posts, or transmits through the Services or any other act or omission of Client or any Authorized User in connection with the Services, (b) Client’s, or any of its Authorized Users’, grossly negligent use or intentional misuse of the Services, (c) Client’s, or any of its Authorized Users’, breach of its material obligations under this Agreement, (d) Client’s, or any of its Authorized Users’, violation of any rights of any other person or entity arising out of or related to the use of the Services, and (e) warranties provided by a Client to its Authorized Users.
- Nexegy agrees to indemnify, defend, and hold Client harmless from all third party Claims finally awarded against Client or agreed to in a settlement by Nexegy to the extent such Claims allege that access to the Service as provided herein (excluding User Content) violates any third party trade secret or US copyright or patent issued more than 60 days prior to the date of the initial Service Order Form between Client and Nexegy. The foregoing obligations are conditioned on Client notifying Nexegy promptly in writing of such action, giving Nexegy sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Nexegy’s reasonable request and expense, assisting in such defense. If the Services become, or in Nexegy’s opinion are likely to become, the subject of an infringement or misappropriation claim, Nexegy may, at its option and expense, either (a) procure for Client the right to continue exercising the rights licensed hereunder; (b) replace or modify the Services so that they become non-infringing and remain substantially functionally equivalent; or (c) refund to Client any advance fees paid by Client to Nexegy pursuant to Section 8, and terminate this Agreement. Notwithstanding the foregoing, Nexegy will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based upon (w) any unauthorized use or distribution of the Services by Client or any of its Authorized Users; (x) any use of the Services in combination with other products, equipment, software, or data not supplied by Nexegy; (y) any modification of the Services by any person other than Nexegy or its authorized contractors; or (z) any User Content, or the collection, storage or provision of User Content as part of the Services. This Section states Nexegy’s entire liability, and Client’s sole and exclusive remedy, for infringement and misappropriation claims and actions.
- Neither Client or Nexegy may settle or compromise any third party claim involving a claim of indemnity without the prior written consent of the other, which consent shall not be unreasonably withheld.
- Warranty Disclaimer
NEXEGY AND ITS SUPPLIERS PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE” AND DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. NEXEGY AND ITS SUPPLIERS DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. NEXEGY AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, RELIABLE, OR ERROR-FREE. NEXEGY DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE COLLECTION, STORAGE, REPRODUCTION, AND PROVISION OF THE USER CONTENT TO CLIENT AND CLIENT’S USE OF USER CONTENT.
- Limitation of Liability.
EXCLUDING INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10 AND CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13, NEITHER NEXEGY NOR CLIENT WILL BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE SITE, THE SERVICES, THE USER CONTENT, OR THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10 AND CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13, THE LIABILITY OF NEXEGY FOR ALL OTHER CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE SITE, THE SERVICES, AND THE USER CONTENT, WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO NEXEGY WITHIN THE PRECEDING SIX (6) MONTHS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
- Confidential Information
- Confidential Information shall mean any of the following information that is disclosed by Nexegy to the Client or by the Client to Nexegy: (i) any of Nexegy’s or Client’s proprietary analysis tools, software and intellectual property, including software and intellectual property related to the Services, human resources or other employee information; business plans; details of internal operations and processes; product research and development information; marketing plans or strategies; product pricing information including but not limited to pricing, pricing assumptions, pricing proposals, pricing quotes and pricing models; customer lists or information; supplier lists or information; any nonpublic financial or business information; (ii) any other information reduced to writing and clearly marked confidential; or (iii) any other information that a reasonable party would consider confidential. All User Content within a Client account is deemed Confidential Information of the Client. Nexegy may share all User Content entered in a Client account with the Client and with all Authorized Users registered under that account.
- Receiving party agrees: (i) to treat Confidential Information as strictly confidential; and (ii) except as described above not to disclose Confidential Information in any way to any person or entity without prior consent of disclosing party, except to its employees or contractors who are under confidentiality obligations at least as stringent as those set forth herein; and (iii) not to use disclosing party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement; and (iv) to return or destroy on demand all Confidential Information which has been supplied to or acquired by receiving party.
- The above restrictions on disclosure or use of Confidential Information shall not apply to: (i) information which at the time of disclosure by disclosing party to receiving party was already published or otherwise generally available to the public, or subsequently becomes generally available to the public other than through the fault of the receiving party; (ii) information which the receiving party can show was rightfully in its possession at the time of disclosure; (iii) information which becomes known independently to the receiving party from a person or entity who rightfully acquired such information under no obligation of confidentiality; or (iv) information which is independently developed by the receiving party’s employee(s) not having access to the disclosing party’s Confidential Information.
- In the event that receiving party receives a request to disclose all or any part of disclosing party’s Confidential Information under the terms of a valid and effective subpoena or court order, receiving party may disclose such Confidential Information to the minimum extent required to comply with such subpoena or order, provided that it immediately notifies disclosing party with respect to such information of the existence, terms and circumstances surrounding such a request so that disclosing party may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement.
- The obligations under this Section 13 shall survive expiration of this Agreement for five (5) years.
- Each party, at its sole respective cost and expense, shall comply with all present and future federal, state and local laws, ordinances, rules, regulations, directives and guidelines applicable to its performance or use, as applicable, of the Services (collectively “Laws”) including, without limitation, all data privacy and processing Laws, and all intellectual property and licensing Laws.
- Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer-employee, or joint venture relationship between the parties. There is no fiduciary duty or special relationship of any kind between the parties to this Agreement. Each party expressly disclaims any reliance on any act, word, or deed of the other party in entering into this Agreement.
- If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. “Includes” and “including” are not limiting. This Agreement may only be modified as provided for herein, and otherwise cannot be modified, terminated or amended in any respect orally or by conduct of the parties without written agreement by the parties.
- Nexegy may freely assign this agreement to any other party without consent or notice. A Client or Authorized User may assign this agreement to a third party only with Nexegy’s express prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
- From time to time, Nexegy will review, audit, and amend its pricing, including pricing assumptions and Nexegy’s pricing model. Nexegy may, in its sole discretion, change this Agreement, the Services, pricing, pricing assumptions and/or the pricing model, at any time. Nexegy may notify Client by conspicuously posting notice of such changes on its Site, or sending e-mail to Client and/or Authorized Users. Client and each Authorized User is responsible at all times for updating its Master Account or User Accounts, as applicable, to provide to Nexegy its most current e-mail address. If the last e-mail address that Client or an Authorized User has provided to Nexegy is not valid, or for any reason is not capable of delivering to Client or the Authorized User the notice described above, Nexegy’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. If Client objects to any such changes, Client’s sole recourse shall be to cancel Client’s subscription to the Services. If any Authorized User objects to any such changes, such Authorized User’s sole recourse shall be to discontinue use of the Services. Continued use of the Services following this 30 day notice period of any changes shall constitute Client’s or the Authorized User’s acceptance of such changes, as applicable. Nexegy reserves the right to modify, suspend, or discontinue the Services with or without notice to Client. Nexegy will notify Clients via the Services of any significant updates thereto. Nexegy shall not be liable should Nexegy exercise its right to modify, suspend, or discontinue the Services.
- Each party agrees that it has reviewed and approved this Agreement, and accordingly any presumption or rule of construction permitting ambiguities to be resolved against the drafting party shall not be employed in the interpretation or application of this Agreement.
- This Agreement shall be construed under the laws of the State of California, notwithstanding any choice-of-law principle that might dictate a different governing law. Each party irrevocably agrees, consents and submits to the exclusive jurisdiction of and venue in the federal and state courts located in San Francisco, California with respect to any dispute arising out of or relating in any way to this Agreement.