Nitrio Cloud Services Agreement
Last Updated: May 24, 2017
This Cloud Services Agreement (“Agreement”) is a binding legal contract between the you (“You” or “Your”) and Nitrio, Inc. (“Us, “We”, “Our”). By accessing or using the Services, as defined below, You will be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, we are not willing to license any right to use or access the Services. If this Agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement. You should print and retain a copy of this agreement for its records.
1. Term. This Agreement will become effective on the first date You accesses the Services, as defined below (the “Effective Date”). The initial term (“Initial Term”) of this Agreement will begin on the Effective Date and will continue thereafter for one year (1). Thereafter, the Agreement will automatically renew for successive one year terms (each a “Renewal Term”), unless either of us gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.” If the Service is provided on a trial basis, Your use of the Service will extend only for the duration of the trial. If no duration is specified, the trial will be thirty (30) days.
2. Services. Subject to the terms and conditions of this Agreement and your payment of all relevant fees, we grant you a non-exclusive, non-transferable license to access and use Our cloud services (the “Services”) solely for your internal business purposes. As part of the Services, we may furnish certain professional services, as more fully described in the associated order document issued by us.
3. Restrictions. You may only use the Services as described in this Agreement and in Our then current documentation regarding the Services (the “Documentation”). Except as expressly authorized by this Agreement, You will not (i) permit any third party to access or use the Services; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any of Our Confidential Information to develop a competing product or service; or (iv) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any of Our other products or materials. We may, in Our sole discretion, suspend Your access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Us from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date.
4. Proprietary Rights. You acknowledge and agree that we own all right, title, and interest in and to the Services, including any changes or modifications made to the Services performed in connection with this Agreement. Under no circumstances will You be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in us. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code.
(a) You may provide us with personal information in order for us to set up your account and provide the Service to you (“Personal Information”). As part of the Services, We will have access to certain information related to businesses and business people stored by the application that Your computer uses to manage email and contacts, known as an “email client” (e.g., Microsoft Outlook) or a provider of cloud services for email or contact management (e.g., SalesForce.com. Microsoft 365, or Google Apps) and telephone conversations recorded by your use of the Services (collectively, “Service Data”). To access Service Data, we may need your login credentials such as username and password. We will keep your credentials confidential, secure and private, and will only use this information in order to provide you with the Service.
(b) Please note that generally (except as described below) we do not “read” the content of your Service Data. Rather, our artificial intelligence technology analyzes Service Data to extract business contact information, and develop useful business intelligence and insights relevant to the sales process and interactions between users’ and their customers, sales leads and prospects (“Intelligence”). Notwithstanding the foregoing, our employees may review and analyze certain Service Data solely for quality control and quality assurance purposes. When this occurs, we use commercially reasonable efforts to de-identify the Service Data so that it does not contain names or other individually identifying information.
(d) We use your Personal Information and Service Data (as defined above) to provide the Service to you and your employer. Additionally, we use our artificial intelligence technology to analyze Service Data to extract and develop useful Intelligence (as described and defined above). In connection with providing the Service to our other customers, we may share this Intelligence with our other customers in a manner that does not personally identify you. We may share Service Data with users’ employers, and with other employees within the same organization. We will not, however, share Service Data with our other customers except to the extent Intelligence that we share is based on Service Data and in a manner that does not personally identify you.
(e) You represent and warrant to Nitrio that you have the legal right and authorization to provide all Service Data to Nitrio for the purposes and Nitrio’s use as set forth herein. In order to provide the Service and other activities describe above, during the Term, You grant Us a non-exclusive, sublicensable, worldwide, transferable, royalty-free license to store, use, process, reproduce, modify and make derivative works based upon the Service Data for purposes of Your using the Services, our provision of the Services to You, or development of Intelligence, and our provision of our services to other users and customers as described above. You agree and consent to access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Usage Data and your Service Data by Us in order to administer, develop and improve the Services and Our other products and services, to monitor compliance with this Agreement and as otherwise set forth in this Agreement.
(f) We may provide Your Personal Information, Service Data and Intelligence to third party service providers that help us operate and manage our Site. These service providers will have access to your personal information in order to provide these services. When this occurs we conduct background checks on the service providers and implement reasonable confidentiality, contractual and technical protections, including de-identifying and anonymizing your Personal Information.
(g) We will share Your Personal Information and Service Data with third party companies, organizations or individuals outside of Nitrio if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:
· Meet any applicable law, regulation, subpoena, legal process or enforceable governmental request.
· Enforce this Agreement, including investigation of potential violations.
· Detect, prevent, or otherwise address fraud, security or technical issues.
· Protect against harm to the rights, property or safety of Nitrio, our users, customers or the public as required or permitted by law.
(h) If You would like to access your Personal Information or Service Data, or otherwise have questions about your Personal Information or Service Data, please contact us at firstname.lastname@example.org.
(i) We use industry standard physical, technical and administrative security measures and safeguards to protect the confidentiality and security of Your Personal Information, Service Data and Intelligence. However, since the Internet is not a 100% secure environment, we cannot guarantee, ensure, or warrant the security of any of your information. There is no guarantee that information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. It is your responsibility to protect the security of your login information.
6. Feedback. You may provide suggestions, comments or other feedback (collectively, “Feedback”) with respect to Our products and services, including the Services. Feedback is voluntary. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Your intellectual property rights to make use of the Feedback, You grants Us an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Our business, including the enhancement of the Services.
7. Support and Maintenance. During the Term, we will provide reasonable telephone support during Our then current business hours.
8. Fees. You will pay the fees, if any, associated with the Services. All fees are non-refundable and non-cancelable. Following the initial year of the Term, on sixty (60) days prior notice, We may adjust any or all fees due hereunder on notice to You. In addition to any other payments due under this Agreement, Youwill pay, indemnify and hold Us harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Us.
9. Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. WE AND OUR VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR REPRESENTATIVES WILL CREATE ANY WARRANTIES OR IN ANY WAY INCREASE OUR OBLIGATIONS HEREUNDER.
10. Confidentiality. Each party may disclose to the other certain non-public information or materials relating to a party's products, intellectual property, business, marketing programs and efforts, personally identifiable information of the party’s personnel and customers, and other confidential information and trade secrets (“Confidential Information”). Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by a party hereto without reference to Confidential Information of the other party; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party's prior written consent, except disclosure to and subsequent uses by the receiving party's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party's obligations under this Section. The receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party's own Confidential Information, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party's Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
11. Limitation of Liability and Damages. NEITHER WE NOR OUR VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOUR OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF US AND OUR VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID YOU HAVE PAID TO US DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
12. Termination. Either party may terminate this Agreement on thirty days’ written notice to the other party if the other party is in breach of any material term herein. In addition, we may, in our discretion, terminate or modify the Service at any time on written or electronic notice to you; in the event of termination we will issue you a prorated refund of any prepaid, unused fees. The following provisions will survive termination or expiration of this Agreement: 4 (Proprietary Rights), 9 (Disclaimers), 10 (Confidentiality), 11 (Limitation of Liability and Damages), 12 (Termination), and 13 (General Provisions).
13. General Provisions. This Agreement will be construed, interpreted, and performed exclusively according to the laws of the State of California, United States of America, without giving effect to any principles of conflicts of law. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in Palo Alto, California. The parties consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. Regardless of any statute or law to the contrary, any claim or cause of action that You may have arising out of or related to this Agreement must be filed within one (1) year after the claim or cause of action arose. This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement may not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement will remain valid and enforceable according to its terms. Any failure by Us to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and Your acceptance will be deemed binding between the parties. Neither party will contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.