Definitions
1.1. “Agreement” means these Terms and Conditions, any Service Agreement referencing these Terms and Conditions, and any attachment, exhibit, addendum or amendment to such applicable Service Agreement. All such components are integral to the agreement between the parties and are collectively referred to herein and in each Service Agreement as the “Agreement.”
1.2. “Customer Content” means any data, other information, text, images, photos, videos, other materials or other content provided or made available by Customer to TheNicheElite in connection with the Agreement.
1.3. “TheNicheElite Content” means any data Customer may access in connection with the Services, including without limitation, the following: (i) data from public sources that TheNicheElite compiles, (ii) profile information, reviews and survey responses from users of the Website, (iii) TheNicheElite statistical and analytical data, and (iv) TheNicheElite data that provides rankings, grades, and profiles for various entities.
1.4. “Service Agreement” means one or more agreements for services between the parties, which may be numbered, that reference(s) these Terms and Conditions.
1.5. “Services” means the products and/or services described in the applicable Service Agreement, intended to be provided by TheNicheElite to Customer in accordance with all terms of the Agreement.
1.6. “Terms and Conditions” means these terms and conditions which govern the relationship between the parties and Customer’s use of the Services set forth in each Service Agreement.
Engagement
Subject to the Terms and Conditions contained herein and any other terms of the Agreement, Customer hereby engages TheNicheElite to provide the Services.
Compensation
In consideration of the Services to be provided by TheNicheElite to Customer, Customer will pay to TheNicheElite all fees, reimbursements and other amounts listed or described in the applicable Service Agreement (collectively, “Fees“). Customer will pay all Fees within 30 days of the date of TheNicheElite’s invoice. In the event that Customer fails to pay any overdue payments within 20 days of receiving notice of late payment, Customer will be obligated to pay the cost of collections, including attorney fees. In addition to TheNicheElite’s termination rights hereunder, TheNicheElite may suspend its performance under this and any other agreement with Customer until Customer pays any overdue amounts in full. Customer agrees that the Fees are neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by TheNicheElite with respect to future functionality or features. Fees are based on access to Services purchased and not actual usage. Payment obligations are non-cancelable, and Fees paid are non-refundable. Unless Customer can provide evidence of an exemption, Customer is responsible for paying all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the transactions contemplated by the Agreement, except taxes based on TheNicheElite’s net income.
Confidentiality
Either party may disclose to the other party proprietary or confidential information which includes any information that should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself (collectively, “Confidential Information“). Each party agrees to (a) use at least reasonable care to protect and maintain the confidentiality of Confidential Information; (b) limit disclosure of Confidential Information to authorized employees, agents and representatives who have a need to know, under similar confidentiality obligations; and ((c) not copy or use Confidential Information except for purposes of the Agreement. The obligations in this Section do not apply to: (i) any Confidential Information that was legally possessed prior to receipt from the source; (ii) was received in good faith from a third-party not subject to a confidential obligation to the source; (iii) now is, or later becomes, publicly known through no breach of confidentiality obligation by the recipient; or (iv) was independently developed by the recipient without access to or use of Confidential Information. Each party acknowledges that its obligations not to disclose Personal Information, regardless of its source or status as Confidential Information, continues to apply through TheNicheElite’s and Customer’s respective privacy policies and any applicable industry standards, laws and regulations. If disclosure of Confidential Information is required by applicable law or government order, then the party subject to such obligation may only disclose Confidential Information to the extent required by such law or government order.
Intellectual Property
5.1. IP Ownership. All right, title, and interest in and to TheNicheElite’s website, the Services, TheNicheElite Content, any related documentation or materials, and any trademarks or other proprietary indicia of TheNicheElite or any of its affiliates, including any versions or derivatives of, or any feedback related to, any of the foregoing, is the intellectual property of TheNicheElite, any use of the foregoing inures to the sole benefit of TheNicheElite. TheNicheElite reserves all rights not expressly granted to Customer under the Agreement. Customer hereby grants to TheNicheElite a perpetual, irrevocable, worldwide, royalty-free, non-exclusive right to use any data collected in connection with the Website or Services on an aggregate, de-identified basis for internal business purposes.
5.2. License. All right, title, and interest in and to Customer Content is the property of Customer. Customer hereby grants to TheNicheElite a transferable, sublicensable, royalty-free, worldwide license during the Term to (i) copy, modify, prepare derivative works of, and use the Customer Content in connection with the Website and 3rd party networks/websites as authorized in the Service Agreement or for the performance of the Services; and (ii) disclose and otherwise provide access to the Customer Content to third parties as reasonably necessary for the provision of the Website or Services or as otherwise contemplated by the Agreement.
Warranty; Disclaimer
6.1. TheNicheElite Warranty. TheNicheElite warrants to Customer that the Services will be performed in a professional manner. TheNicheElite’s exclusive obligation with respect to this limited warranty is to re-perform any non-conforming Services or, at TheNicheElite’s sole option, to refund the applicable portion of the Fees for the non-conforming Services.
6.2. Customer Warranty. Customer warrants to TheNicheElite that (i) Customer has received all third party consents required for TheNicheElite to perform the Services; (ii) Customer will properly perform any obligations described in any applicable Service Agreement in accordance with all applicable laws and regulations, including without limitation, laws and regulations pertaining to students educational records and privacy, the incentive compensation of persons engaged in recruiting activities by or on behalf of educational, banking, lending, or any other regulated entities, and advertising, electronic communications, and solicitations; (iii) Customer has collected, compiled, provided and generated the Customer Content in compliance with all applicable laws, rules, regulations and privacy policies; (iv) Customer has all rights necessary to grant TheNicheElite the right to use and disclose the Customer Content in accordance with the Agreement; and (v) Customer will obtain and maintain all licenses or permits as are required to conduct the activities contemplated hereunder. Customer Content6.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THENICHEELITE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THENICHEELITE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE PARTICULAR RESULTS. THENICHEELITE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Limitation of Liability
IN NO EVENT WILL THENICHEELITE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THENICHEELITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. THENICHEELITE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO THENICHEELITE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT THENICHEELITE WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, THENICHEELITE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Termination
Either party may terminate the Agreement upon written notice if the other party materially breaches the Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach. Upon termination or expiration of the Agreement, all rights and obligations under the Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
General
The Agreement will be governed by and construed in accordance with the laws of the state of [Your State], without regard to its conflict of laws rules. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the [Your City] and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. The Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.