These Terms of Use together with any agreement or document that incorporates these Terms of Use, and any and all attachments thereto, including those incorporated by reference therein (collectively, the "Agreement" ) are a binding agreement between Nivelo Tech Inc. and you or the entity you represent ("Company") and govern the use of Nivelo's services. To be eligible to use any Nivelo Services, you must review and accept the terms set forth in this Agreement (this “Agreement”) by executing or accepting the applicable ordering documents issued by Nivelo specifying the Nivelo Services to be provided under this Agreement (“Order Forms”).
This Agreement supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to Software Services and the Professional Services (both as defined below) (collectively,the “Services”) and all past dealings or industry customs. In the event of a conflict between these Terms and the terms and conditions of the applicable Order, the terms of the Order will govern.
1.1. Nivelo Software Offerings.
Nivelo provides various software and service offerings, as specified in the applicable Order. Each Order includes the following details:
Nivelo will (a) make the Software Services available to the Company and its authorized users (“Users”) for the Company’s internal use, (b) Nivelo will provide applicable Nivelo standard support for the Services to Company at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Nivvelo shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Nivelo’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror,strike or other labor problem (other than one involving Nivelos employees), Internet service provider failure or delay, Non-Nivelo Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Nivelo's provision of its Services to its customers generally (i.e., without regard for Company's particular use of the Services), and subject to Company's and Users’ use of the Services in accordance with this Agreement, and the applicable Order Form.
2.1. Passwords. Company is responsible for maintaining the confidentiality of its User passwords, IDs, and other credentials and login information (collectively, “Passwords”); provided that all Passwords shall be deemed Confidential Information of Company. Company acknowledges that Passwords are personal to each User, and Company is responsible for ensuring that each Password is used only by the applicable User. Each party must notify the other immediately if such party has reason to believe that the security of Company’s account has been compromised or if any of the Services have been accessed by any unauthorized individuals.
2.2. Company Data. Company grants to Nivelo a non-exclusive, royalty-free, worldwide sub-licensable right and license to reproduce, modify, and store all electronic data or information provided by Company to Nivelo via or in connection with the Services (“Company Data”) solely in order for Nivelo to perform the Services strictly in accordance with the terms thereof on behalf of the Company. As between the parties, Company owns all Company Data.
3.1. Fees. Company will pay to Nivelo the Fees in accordance with the payment terms set forth in theapplicable Order. The Subscription Fees do not include taxes. Unless otherwise set forth in the Order, Nivelo will invoice Company on an annual basis in advance for the Subscription Fees, Company will become due on the Order effective date, and all payments must be made (a) in U.S. Dollars and (b) by ACH debit drawdown as per the Authorization Agreement for Automated Clearing House Transactions.
3.2. Interest and Additional Terms. Interest on any undisputed payments to the extent caused by Company will accrue at therate of 1.5% per month, or the highest rate permitted by law, whichever islower, from the date such amount is due until the date undisputed amounts arepaid in full. Company will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services, excluding only taxes based solely on Nivelo’s net income. Notwithstanding any terms to the contrary in this Agreement, (a) Nivelo will not be obligated to issue any refunds for Subscription Fees paid, and (b)Nivelo reserves the right to introduce and charge for new features or services at any time, while ensuring that pricing for existing services remains unchanged during the current Subscription Period, with any adjustments to existing service fees only taking effect in subsequent periods. New features or services that require additional charge will require a new Order Form signed by Company before being added to the Company’s offerings. .
4.1. Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 4.2, continues for the Subscription Period as set forth in the Order. Thereafter, subject to the terms of the Order which may not permit auto-renewal, unless terminated as set forth in Section 4.2 or otherwise provided in the Order, this Agreement will automatically renew for successive periods equivalent to the length of the Subscription Period (each period referred to as a Subscription Period) unless either party provides written notice of non-renewal no less than 60 days prior to the end of the then-current Subscription Period. Company acknowledges that it will not receive notice of a renewal date, and Company expressly waives the application of NewYork General Obligation Law section 5-903, and any similar laws, prior to the start of any renewal.
4.2. Termination. Either party may terminate the Agreement, for cause, if the other party materially breaches this Agreement an does not remedy such breach within 10 days after its receipt of written notice of such breach. Further, not withstanding any terms to the contrary inthe Agreement, Nivelo may suspend use of the Software Services (or any portion thereof) without liability if Nivelo reasonably determines that (a) Company or any of its Users are in breach of Section 9, or (b) that Nivelo is required by any applicable law to suspend the Software Services.
4.3. Effects of Termination. Upon any expiration or termination of this Agreement (a) all rights and licenses granted to Company under this Agreement will immediately terminate, (b) no further Fees shall be due. Notwithstanding any terms to the contrary in thisAgreement, (i) Sections 3, 4.2, 6, 7, 8, 9, 10, and 12 will survive any termination or expiration of this Agreement, and (iii) no refundswill be issued.
Representations and Warranties. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver, and perform its obligations under the Agreement, and (d) the Agreement is valid, binding, and enforceable against it in accordance with its terms. Further, Company possesses the necessary rights and consents to grant Nivelo the rights set forth in the Agreement with respect to the Company Data. Nivelo represents and warrants that it has all necessary rights and consents (including those related to Intellectual Property Rights (as defined in Section 8.4) to provide the Services to Company and Users.
EXCEPT AS SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE),INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NIVELO, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE ACCESS TO OR USE OF THE SERVICES WILL BE SECURE,TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS,(C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR WILL NOT BE LOST,DAMAGED, OR CORRUPTED, (D) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR NIVELO WILL DETECT EVERY BUG IN THE SERVICES,(E) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (F) THIRD-PARTY DISRUPTIONS AND SECURITY BREACHES OF THE SERVICES WILL BE PREVENTED. NIVELO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CLIENT’S USE OF THE SERVICES. IF NIVELO IS PROVIDING PAYMENTS SERVICES PURSUANT TO THESE TERMS, NIVELO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PAYMENT REQUESTS THROUGH THE PAYMENTS SERVICES, AS SUCH PAYMENTS ARE DEPENDENT UPON MANY FACTORS OUTSIDE OF NIVELO’S CONTROL, INCLUDING BUT NOT LIMITED TO PAYMENT SETTLEMENT TIMES, PAYMENT HOLDS, BANK INFRASTRUCTURE OUTAGES OR OTHER DELAYS IN THE BANKING SYSTEM AND BANK PAYMENT CUTOFF TIMES AND/OR TRANSFER LIMITS. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nivelo or by third-party providers, or because of other causes beyond Nivelo’s reasonable control, but Nivelo will use reasonable efforts shall provide at least five business days’ advance notice in writing or by e-mail of any scheduled service disruption.
Nivelo, at its sole expense, will defend and hold harmless Company and its affiliates,and its and their respective directors, officers, employees, consultants and agents (“Company Parties”) from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Company from any related damages, payments, deficiencies, fines, judgments, settlements,liabilities, losses, costs and expenses (including, but not limited to,reasonable attorneys’ fees, costs, penalties, interest and disbursements) (“Losses”) resulting from or relatingt to any infringement of any Intellectual Property Rights (as defined in Section 8.4) of any third party. Company, at its sole expense, will defend Nivelo, its affiliates, and its and their respective directors, officers, employees,consultants and agents (“Nivelo Parties”) from and against any Claim, and indemnify the Nivelo Parties from any related Losses resulting from or arising in connection with any alleged or actual breach of this Agreement (including, but not limited to any of Company’srepresentations or warranties) or any violation of applicable law or regulationby or on behalf of Company. The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of it, (b) granting the indemnifying party the option to solely control the defense (including theright to use its own counsel) and settle the Claim (except that the indemnified party must approve any settlement that requires an affirmative obligation ofthe indemnified party), and (c) providing reasonable cooperation to theindemnifying party and assistance in the Claim’s defense or settlement.
8.1. Consequential Damages Waiver. EXCEPT FOR (A) BREACHES OF SECTIONS 9 OR 10, (B) INFRINGEMENT,MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY,OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH INSECTION 7, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANYINDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. EXCEPT FOR (A) BREACHES OFSECTIONS 9 OR 10, (B) INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY TO NIVELO DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED. FURTHER, NOT WITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, (I) THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF THE TERMS OR CONDITIONS OF THE SERVICE LEVEL STANDARDS ARE THE CREDITS PROVIDED UNDER THIS AGREEMENT, AND (II) COMPANY WILL NOT BE LIABLE FOR ANY DISCLOSURE OF,UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY DATA OR OTHER INFORMATION.
8.3. Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 8 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.4. Intellectual Property Rights. In the event of any claim brought by a third party that all or a portion of the Services infringes, misappropriates, or otherwise violates any Intellectual Property Right of a third party or if Nivelo believes such a claim may be brought, Nivelo may, in its sole discretion: (a) replace the applicable Services, (b) modify the applicable Services, (c) procure for Company the right to continue using the Services, or (d) terminate this Agreement upon 30 days written notice to Company. Except for Nivelo’s indemnification obligations, this Section 8.4 sets forth Company’s sole remedy and Nivelo’s sole obligation for the claims described in this Section 8.4. For the purposeof this Agreement, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets, and any other form of intellectual property recognized in any jurisdiction, including applications and registrations, for any of the foregoing.
9.1. Definition “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to the Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation, at the time of initial disclosure to the Receiving Party or, if by its nature the information disclosed by the Disclosing Party is reasonably apparent that it should be treated as confidential/proprietary to the Disclosing Party.
9.2. Obligations. The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the 10-year period commencing upon the effective date of termination of this Agreement, and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for thepurpose of carrying out the Receiving Party’s obligations or exercising the Receiving Party’s rights under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees, vendors and/or contractors who have a need to know such Confidential Information in order to perform their duties under the Agreement, provided such directors, officers, employees, vendors and/or contractors are under a written obligation to maintain the confidentiality of the Confidential Information, and in any event the Receiving Party shall be responsible for any breach hereof by any person to which it is entitled to provide the Confidential Information. Each party agrees that the terms and conditions of the Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement in confidence (a) to such party’s legal counsel, accountants, banks, financing sources, and their advisors, (b) in connection with the enforcement of the Agreement or rights under the Agreement, or (c) in connection with an actual or proposed equity investment, merger, acquisition, or similar transaction.
9.3. Exceptions. Confidential Information will not or shall cease to include information that: (a) is or becomes publicly available without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Court Order; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objection sit may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 9, the Receiving Partywill bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
9.4. Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information may result in irreparable injury to the Disclosing Party, which injury could may be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations set forth in the Agreement, from any court of competent jurisdiction.
Except as expressly authorized by this Agreement, Company may not (a) modify,disclose, alter, translate, or create derivative works of the Services (or any components there of), (b) license, sublicense, resell, distribute, lease,rent, lend, transfer, assign, or otherwise dispose of the Services (or any components there of), (c) use the Services to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions, (d) copy, frame, or mirror any part orcontent of the Services, (e) build a competitive product or service, or copy any features or functions of the Services, (f) interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or their related systems or networks,(h) disclose to any third party any performance information or analys is relating to the Services, (i) remove, alter, or obscure any proprietary notices in or on the Services including copyright notices, (j) disclose or make available to any third party Passwords that Nivelo has provided to Company or the Users, (k) create or retain any copies of any Content, except to print or download in substantial amounts of the Content as available through the Services’ intended use, (l) reverse engineer, decompile, disassemble,decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate,create, or attempt to create the source code of the Services or their structural framework (in whole or in part), or perform any process intended to determine the source code for the Services, (m) circumvent or attempt to circumvent any technological protection measures intended to restrict access toor use of any portion of the Services or the functionality of the Services,(n) take any action that imposes an unreasonable or disproportionately large load on the Services, (o) use the Services for any purpose that is illegal in any way or that advocates illegal activity, or (p) cause o rpermit any User or third party to do any of the foregoing.
Exceptfor payments due under this Agreement, neither party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including, but not limited to, acts of God, flood, fire, earthquake,or explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, sabotage or piracy, riot or other civil unrest,government order, law, or action, embargoes or blockades in effect on or afterthe date of this Agreement, strikes, labor stoppages or slowdowns or other industrial disturbances, interruption or termination of any services provided by any service providers used by Nivelo, and plague, epidemic, pandemic,outbreaks of infectious disease or any other public health crisis (including,quarantine or other employee restrictions) (each a “Force Majeure Event”).
12.1 Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of New York applicableto agreements made and to be entirely performed within the State of New York, without resorting to its conflict of law provisions.
12.2. Feedback. Notwithstanding any terms to the contrary inthe Agreement, any suggestions, comments, or other feedback provided by Company to Nivelo with respect to Nivelo or the Services (collectively, “Feedback”) will constitute Confidential Information of Nivelo. Further, Nivelo will be free to use, disclose,reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind onaccount of Intellectual Property Rights or otherwise. Company hereby assigns to Nivelo all right, title and interest Company may have in and to the Feedback (including all Intellectual Property Rights embodied in the Feedback). Company hereby assigns to Nivelo all right, title and interest Company may have in andto the Feedback (including all Intellectual Property Rights embodied in orrelated to the Feedback).
12.3. Analytic Data. Company acknowledges and agrees that Nivelo may monitor, collect, use, and store anonymous and aggregate statistics regarding use of the Services and/or any individuals/entities that interact with the Services (collectively, “Nivelo Analytic Data”). Notwithstanding any terms to the contrary in this Agreement, as between the parties and subject to the grants expressly set forth in this Agreement and except for the Customer Data, Nivelo owns all right, title, and interest in and to the Services, API, and Nivelo Analytic Data, together with any and all Intellectual Property Rights embodied in or related to the foregoing.
12.4. Assignment. Neithert he Agreement nor any right or duty under the Agreement may be transferred, assigned or delegated by either party, by operation of law or otherwise,without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect; provided that in the event of a change control or sale of the business of a party to which the Agreement related, by sale of equity or assets or a merger of a party with a third party, no such consent shall be required. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. 12.5. Modifications and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise anyright or remedy here under will operate as a waiver thereof or effect any otherright or remedy. All rights and remedies hereunder are cumulative and are notexclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
12.5. Severability. If any provision ofthe Agreement is invalid, illegal, or incapable of being enforced by any ruleof law or public policy, all other provisions of the Agreement will nonetheless remain in full force and effect so long as the economic and legal substance ofthe transactions contemplated by the Agreement are not affected in any manneradverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Last updated September 1, 2024