License Agreement & Terms of Service

1. SAAS SERVICES AND SUPPORT

Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.  As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Customer may from time to time provide access for account registration for the Services to one or more Authorized Users of Customer. Except for the individual Authorized User to whom account registration is provided, no other person may use the Services or otherwise access such Authorized User’s account. Company reserves the right to refuse registration of, or cancel passwords, of Customer and any Authorized User it deems inappropriate in its sole discretion.

Subject to the terms hereof, Company will make available to Customer all features and functionality developed for the Software and Services by Company and released commercially after the initial deployment of and that are included within the scope of the Software and Services, including all updates, maintenance releases, fixes, upgrades, new versions, or any other major and minor enhancement to such Software and Services, and Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice. Notwithstanding anything to the contrary in this Agreement, completion of vendor approval, information technology or security assessment, or other technology or security policy information required for subscription by Customer shall be contingent upon licensing at the Enterprise tier.

Company will provide the Service and Software to Customer and operate the Service and Software seven (7) days a week, every week of the year, twenty-four (24) hours a day, not including scheduled maintenance time. Scheduled maintenance time will not exceed five (5) hours a month, and will take place during Non-Peak Hours. “Non-Peak Hours” will be the hours between 10:00 PM and 6:00 AM Eastern Standard Time. Company will provide at least forty-eight (48) hours prior notice of scheduled maintenance, and will provide notification of unscheduled outages within four (4) hours of discovery. The Service and Work Products will function and be available as provided in this Agreement with the Uptime specified below (with the exception of any scheduled maintenance performed by Company). “Uptime” is the total amount of time during a calendar month, measured in minutes, during which Customer has the ability to access the features of the Software and Services, excluding scheduled maintenance, and not inclusive of the function of any third party tool integrated into the Software and Services. Company will provide an Uptime of 99.5% or better; if Company’s noncompliance is between 99.0% to 99.5%, Customer will be credited three percent (3%) of its monthly fee. If noncompliance is from 98% to 99.0%, the credit will be five percent (5%) of the monthly fee. There will be an additional one percent (1%) credit of the monthly fee for each additional one percent (1%) of noncompliance beyond 98%, up to a maximum credit equal to 100% of the then-applicable monthly fee. In addition to any other remedy available to Customer under this Agreement or otherwise, Customer may terminate this Agreement, effective upon written notice to Company, in the event the Uptime for the Software or Services is less than 98% in any four months during any consecutive six-month rolling period. In such an event, Company will issue Customer a refund equal to the balance of any prepaid and unearned fees as of the effective date of such termination.

2. RESTRICTIONS AND RESPONSIBILITIES

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing (including any use of any Authorized User’s account by any other person) or service bureau purposes or otherwise for the benefit of a third party (except to the extent expressly permitted by Company or authorized within the Services); or remove any proprietary notices or labels (except to the extent expressly permitted by Company or authorized within the Services). Notwithstanding the foregoing, Customer may use the Services in the ordinary course of providing consulting, research, or professional services (“Research Consulting”), provided that (i) all access to perform such Research Consulting is made through Authorized Users’ accounts without unauthorized sharing, and (ii) the Services are used solely as part of delivery of Customer’s Research Consulting and not offered separately as a substitute for the Services themselves. 

Customer represents, covenants, and warrants that Customer will (i) not permit access to or use of the Services by any employee, service provider, agent or representative of Customer, or any other third party, except for Authorized Users of Customer and (ii) use the Services only in compliance with all applicable laws and regulations, including those related to export and re-export, and is not uploading Third Party contents that could violate contractual conditions or intellectual property of third parties. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

Customer shall (i) cause each Authorized User to comply with the terms and conditions of Sections 2 and 3 of this Agreement as if the Authorized User were the Customer hereunder, and (ii) be responsible and liable for any Authorized User’s breach hereof.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.   

Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.  Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing. Furthermore, Company shall protect all Customer Data with all practices outlined in the Company’s privacy policy (as may be updated by the Company from time to time).      

Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.   

4. PAYMENT OF FEES

Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). For avoidance of doubt, Fees are calculated based on the number of Authorized Users and the Service Fees attributable to each such Authorized User for the respective billing period.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to the Company contact at contact@nested-knowledge.com.

Company may choose to bill Customer for any Fees through an invoice, in which case, full payment must be received by Company thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. 

5. TERM AND TERMINATION

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

In addition to any other remedies it may have, (i) Company may suspend access to the Services and (ii) either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), in each case, if the other party materially breaches any of the terms or conditions of this Agreement.  Customer will be responsible for payment in full for the Services during the Term. Upon any termination, Company will make all exportable Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All Sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

6. PUBLICITY

Upon written approval by Customer, Company may incorporate Customer’s trademarks, service marks, names and/or logos (collectively, the “Customer Marks”) in Company’s marketing, sales, website, and other promotional materials to identify Customer as a Company customer. Customer hereby grants Company a limited, non-exclusive, non-transferable, royalty-free license during the Term to use the Customer Marks solely for the purposes described in this Section. If Customer does not want Company to use or otherwise display Customer name and/or logo, Customer may opt out of this Publicity by emailing Company at logo@nested-knowledge.com. In the event Customer chooses to Opt-Out, Opt-Out will remain in place regardless of revisions to this agreement, unless Customer elects to Opt-In.

Company grants Customer a limited, non-exclusive, non-transferable, royalty-free license during the Term to use or otherwise display the Company name and any of its logos in marketing and promotional materials. The Company must include a trademark attribution notice giving notice of the Company’s ownership of its trademarks in the materials where the name and logo appear. Other than as expressly permitted, Neither party shall use the other party’s marks, codes, drawings, or specifications without the prior written permission of the other party.   

7. SUBSCRIBER CONTENT

(A) Customer agrees not to use the Software to collect, upload, obtain, transmit, share, display, or distribute any Subscriber Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, contractual right, limited license right, subscription agreement, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;  (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third-party.

(B) Whenever Customer adds or uploads content to the Software, Customer is responsible for the accuracy, quality and legality of any such content. Each time Customer adds or uploads Subscriber Content to the Software, Customer represents and warrant to Company that Customer owns Customer’s Subscriber Content or have the right to submit it, and in submitting it Customer will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trade mark), privacy or publicity rights, rights of confidentiality or rights under contract, limited license, or subscription. The Company takes no responsibility and assumes no liability for any content that Customer, another user, or a third party creates, uploads, posts, sends, shares, transmits, receives, stores, accesses, or obtains on or through the Services, including any output. For the avoidance of doubt, note that whenever Customer shares or render accessible (including, but not limited to, sharing outputs of the Services that include any third party materials) any Subscriber Content, Customer is responsible for the legality of sharing or rendering such content accessible and Customer represents and warrant to Company that Customer has the right to transmit, share, or make accessible any such Subscriber Content.

(C) In addition, Customer agrees not to: (i) upload, transmit, or distribute to or through the Software any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Software unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Software to harvest, collect, gather or assemble information or data regarding other Customers, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Software, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Software (or to other computer systems or networks connected to or used together with the Software), whether through password mining or any other means; (vi) harass or interfere with any other Customer’s use and enjoyment of the Software; or (vi) use software or automated agents or scripts to produce multiple accounts on the Software, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Software (provided, however, that Company conditionally grants to the operators of public search engines revocable permission to use spiders to copy materials from the Software for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).

Company reserves the right (but has no obligation) to review any Subscriber Content, and to investigate and/or take appropriate action against Customer in our sole discretion if Customer violates the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for Company or any other person. Such action may include removing or modifying Customer’s Subscriber Content, terminating Customer’s Account, and/or reporting Customer to law enforcement authorities.

If Customer provides Company with any feedback or suggestions regarding the Software (“Feedback”), Customer hereby assigns to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback Customer provides to Company as non-confidential and non-proprietary. Customer agrees that Customer will not submit to Company any information or ideas that Customer considers to be confidential or proprietary.

8. THIRD-PARTY CONTENT

9. DISCLAIMER OF WARRANTY

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE SOFTWARE.

10. INDEMNITY 

Customer agrees, on its own account and on behalf of any Authorized User, to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) use of the Services by Customer or its Authorized Users that is unauthorized, illegal, or violates the rights of any third party, (b) any violation of this Agreement by Customer or its Authorized Users, (c) any violation of applicable laws or regulations by Customer or its Authorized Users or (d) any Customer Data. Company reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify the Company, and Customer agrees (on its own account and on behalf of any Authorized User) to cooperate with the Company’s defense of these claims. Customer agrees (on its own account and on behalf of any Authorized User) not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S (OR ITS AUTHORIZED USERS) USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICE, COMPUTER SYSTEM OR ANY OTHER EQUIPMENT OF CUSTOMER (AND ANY AUTHORIZED USERS), OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF THE TOTAL SERVICE FEES OVER THE PREVIOUS TWELVE (12) MONTH PERIOD. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

12. ARBITRATION

Any dispute, controversy or claim between the parties arising out of or relating to this Agreement or the breach, termination or validity hereof shall be referred to and finally resolved by binding arbitration in Minneapolis, Minnesota, to the exclusion of all other procedures, in accordance with the rules then in force of the American Arbitration Association, which are deemed to be incorporated by reference into this Section 10.  In any such arbitration, one arbitrator shall be appointed in accordance with such rules.  Where the rules of the American Arbitration Association do not provide for a particular situation, the arbitrator shall determine the course of action to be followed.  To the maximum extent permitted by applicable law, the parties agree not to assert any rights to have any court rule on a question of law affecting the arbitration or to hear any appeal from or entertain any judicial review of the arbitral award. 

13. PREVAILING PARTY FEES

In the event that any action, suit, arbitration or other legal or administrative proceeding (“Action”) is instituted or commenced by either party hereto against the other party arising out of or related this Agreement, the prevailing party in such Action, shall be entitled to recover its reasonable attorneys’ fees, court costs and other related expenses and costs from the non-prevailing party in such Action.

14. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Minnesota without regard to its conflict of laws provisions; provided that, nothing in this Section shall permit any party to bring any action, claim, demand, litigation or other legal proceeding arising out of or relating to this Agreement in any tribunal other than as set forth in Section 10, except to enforce an award issued by the arbitrator in accordance with Section 10. In the event a conflict arises in the application or interpretation of any provision of this Agreement and other agreements between Company and Customer, this Agreement will control.