Last Updated on: 18th Jan 2024
Thank you for using the website and services offered by Niural Inc (“Niural”, “we”, “us”, “our”). The specific Niural Services you order will be set forth in ordering documents (including any online form) issued by Niural specifying the Niural Services to be provided under these terms (“Master Service Agreement”, “MSA”). To be eligible to use any Niural Services, you must review and accept the terms set forth in this Customer Terms of Service Agreement (this “Agreement”) by executing the applicable MSA provided by us and/or checking on the “I Agree” button or other mechanism provided. Your authorization to access and use any Niural Services is conditioned on your acceptance of and compliance with the terms of this Agreement.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING ANY OF THE NIURAL SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Your account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and that you consent to do business electronically.
This Agreement applies to all Customers of the Niural Services, including, as applicable, administrators or employees authorized to act on behalf of an entity or other organization with respect to the Niural Services (collectively, “Customers”). If you are registering for a Niural account or using the Niural Services on behalf of an entity or other organization, references to “you” are to such entity or organization and you are accepting this Agreement for that entity or organization and representing to Niural that you have the authority to bind that entity or organization to this Agreement (the term “Customer” will also refer to that entity or organization).
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE NIURAL SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Niural Services.
1.1 Provision of Niural Services; Core Services.
(a) Provision of Niural Services. Niural makes the Niural Services available pursuant to this Agreement and any applicable MSA, the Niural User Privacy Notice, the Niural Data Processing Addendum and any supplemental policies or terms referenced herein, therein or which Niural may present to you for review and acceptance at the time you subscribe to the applicable Niural Service (collectively, "Supplemental Terms"), all of which are hereby incorporated into and form a part of this Agreement. In the event of conflict between the provisions of this Agreement and any Supplemental Terms, the Supplemental Terms will control to the extent of such conflict. “Niural Services” means the current and future human resource, financial, and information technology services and related services provided by Niural and its affiliates, as well as improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to those services.
(b) Core Services. Niural may make certain Core Services available through its platform, including (i) employee onboarding and offboarding services, (ii) sample documents and policies (“Templates”), (iii) a platform that third parties may use to develop and provide applications, services, websites or software that complement your use of the Niural Services (each, a “Third Party Product”), and (iv) other workplace features, as may be developed by Niural from time to time, such as an employee directory and paid-time off tracking (“Core Services”). You acknowledge that Templates and other provided materials constitute “Niural Content” and are incorporated into the Niural Services. Niural may expressly permit you to modify or edit certain Templates, which, once modified, become “Modified Content”. Niural grants Customer a limited, revocable, non-sublicensable license to use, reproduce, copy, and distribute Niural Content contained within the Modified Content, solely for Customer’s internal business purposes, subject to Customer’s compliance with the terms of this Agreement, including payment terms herein.
1.2 Additional Services. Niural may make certain additional services available through its platform as may be developed from time to time. Without limiting the terms of this Agreement, if you subscribe to one or more of the Additional Services governed by additional terms listed in the sidebar at https://app.Niural.com/legal (each, “Additional Terms”) (e.g., Payroll Services Additional Terms, Inventory Management Additional Terms), then you also agree to be bound by such Additional Terms. In addition, to the extent you purchase third-party services offered, referred, resold or otherwise made available by Niural through the Niural platform, you may be subject to the terms of service for that third-party service provider.
1.3 No Professional Advice. You acknowledge that Niural is not a lawyer, accountant, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, compliance, or other professional advice. Any information provided by the Niural Services is intended for your general use only, including with respect to any templates available within the platform, and does not constitute legal or professional advice. You understand that you are responsible for any actions taken based upon information received from Niural, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.
1.4 Eligibility and Jurisdiction. The Niural Services are only available for persons in those jurisdictions in which they may legally be sold. Nothing on the Niural Services shall be considered a solicitation to buy or an offer to sell anything to any person in any jurisdiction in which such offer, solicitation, purchase or sale would be unlawful. The technology and software underlying the Service or distributed in connection therewith and the transmission of any applicable data (the “Software”) is subject to Export Control Laws. No such Software or data may be downloaded from the Niural Services or otherwise exported or re-exported in violation of applicable Export Control Laws. Downloading or using such Software or data is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Niural Services, including as it concerns online conduct and acceptable content. Niural hereby disclaims any and all liability with respect to any use of the Niural Services outside of the terms of this Agreement.
1.5 User Limitations. The Niural Services may only be accessed and used by individual employees or contractors of Customer ("Users") who are (i) at least thirteen (13) years of age in the United States and territories not subject to the GDPR and FADP (each as defined in the DPA); and (y) sixteen (16) years of age in territories subject to the GDPR and FADP, (ii) authorized by Customer to use the Niural Services, and (iii) otherwise not barred from using the Niural Services under applicable law. You are responsible for ensuring that any user that you allow to access the Niural Services is authorized to do so by law, and that such individual’s use of the Niural Services complies with all wage and hour laws, employment laws, and any other applicable laws and regulations.
1.6 Mobile Services. The Niural Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Niural Services, (ii) the ability to browse the Niural Services and other websites, and (iii) the ability to access certain features of the Niural Services (collectively, the “Mobile Services”). To the extent you access the Niural Services through a mobile device, your network service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Customer and other entities by SMS, MMS, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number or other mobile identifier, you agree to promptly update your Customer account information to ensure that your messages are not sent to the person that acquires your old number.
1.7 Professional Services.
(a) Professional Services. To the extent specified in Customer’s MSA, Niural will provide professional services during regular business hours as further described in the MSA (“Professional Services”). Professional Services must be completed within three (3) months from the date Customer completes the first phase of the implementation services relating to the applicable Niural Services purchased by Customer. For any Customer who purchased Professional Services and completed the first phase of its implementation services prior to May 1, 2023, such Customer shall have until September 1, 2023 to complete the Professional Services previously purchased.
(b) Managed Services. If specified on Customer’s MSA, Niural will provide additional managed services to Customer (“Managed Services”). Certain Managed Services, including Managed Implementation Services, will be delivered in accordance with a project framework document created by Niural describing key milestones, responsibilities, project participants and administrators, assumptions, and deliverables applicable to Niural and Customer. Customer will provide reasonable and timely cooperation in connection with Niural’s provision of Managed Services, including with respect to the project framework document. Niural will not be liable for any delay, costs, or other adverse conditions to the extent caused by Customer’s failure to provide Niural with information, materials, reviews, confirmations, consents, or access to Customer facilities, networks or systems required for Niural to perform the Managed Services. If Customer does not perform its obligations with respect to the Managed Services, Niural’s obligation to perform the Managed Services may be suspended and additional fees and delay may result.
(c) Time & Materials Support. Niural may provide Customer with the ability to schedule live and/or recorded appointments with Niural personnel to discuss questions related to, and take certain actions at the direction of Customer with respect to, the Niural Services (“T&M Support”). T&M Support may be subject to additional fees as communicated to Customer at the time of scheduling, and the provision of T&M Support is governed by Niural’s then-current T&M Support policies.
2. Customer Responsibilities.
2.1 Consent to Electronic Delivery; Electronic Signature.
(a) Electronic Signature. When you execute documents using the e-signature tools set forth in the Niural platform (“E-Sign Service”), you consent to electronically sign such documents, including employment-related documents, and agree that your electronic signature ("Electronic Signature") is the legal equivalent of your manual or handwritten signature. By selecting an “I Accept” button or checkbox, or otherwise placing an Electronic Signature on a document while in your Niural Account, you expressly affirm that: (i) you are able to access and view the relevant document that you are electronically signing, (ii) you consent to conduct business electronically with respect to the transaction contemplated by the document, (iii) you agree to the use of an Electronic Signature for the document, and (iv) you are authorized to enter into the relevant agreement, and be bound by its terms. You further agree that no certification authority or other third party verification is necessary to validate your Electronic Signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of your Electronic Signature or any resulting agreement.
(b) Electronic Delivery. You agree that Niural may electronically deliver service-related documents and/or disclosures to you (including for any persons whom you are the legal guardian), which may include tax and health insurance notices, as applicable. You also authorize Niural to receive such Service-related documents and/or disclosures electronically on your behalf, and agree to be notified of such notices electronically. Niural may provide electronic delivery via email to the email address provided by you in the Niural platform or by reference to a location on the Niural platform to which you have access. If you are using the Niural Services on behalf of a Customer and/or its employees and contractors, you represent that you have affirmative consent from your employees and/or contractors of such company to receive electronic disclosures from Niural through the Niural Services.
(c) Withdrawing Consent. As a Customer, you acknowledge that Niural relies on electronic communications as a core component of its services; accordingly, if you are using the Niural Services on behalf of a Customer and/or its employees and contractors and withdraw electronic consent for such Customer and/or its employees and contractors, Niural may no longer be able to provide the Niural Services to you, and may terminate Customer’s use of the Niural Services in whole or in part. To the extent any employee or contractor withdraws electronic consent to receive documents (including tax and health insurance documents and notices) from Niural, it is your responsibility to ensure that paper copies of the relevant documents are provided to the employee or contractor.
(d) Enforceability. You acknowledge that, under applicable laws, some documents require a manual or handwritten signature, and that it is your responsibility to determine whether a document requires a manual or handwritten signature. You understand that you are solely responsible with respect to the content, validity, or enforceability of any document, and that Niural makes no representations or warranties regarding the validity or enforceability of your documents signed using the E-Sign Service.
(e) Form W-2s. For Users of Niural Customers receiving payroll services, you agree that your acceptance of these User terms constitutes consent to receive all future Form W-2s electronically for the duration of Customer’s use of Niural’s payroll services, and for any tax periods covered by Customer’s use of Niural’s payroll services. If you (i) do not consent to receive your Form W-2s electronically, (ii) withdraw your consent, or (iii) request a paper Form W-2, you will receive a paper Form W-2, but Customer may incur additional fees. To withdraw your consent to receive your Form W-2s electronically or to request a paper Form W-2 (which request will not be treated as withdrawal of consent), please email or contact the relevant person at your employer no later than December 1st of the applicable tax year. Customer (i.e., your employer) will confirm in writing or by email the effective date of the consent withdrawal, if applicable, and such withdrawal will only be effective for Form W-2s not yet issued (and, if received later than December 1st, will not apply to the Form W-2 for that year). Customer and Niural may provide electronic delivery of the Form W-2 via email to the email address provided by you in the Niural platform or by reference to a location on the Niural platform to which you have access. To update your email address for such delivery, please update the address in the Niural platform.
2.2 Accuracy of Customer Information. All Niural Services will be based upon information provided to Niural by you, by your employees or representatives, or by third party services from which you may elect to import your information (including proof of federal, state and local tax identification numbers, payroll information, benefit information and insurance information, leave policies and other employment practices) (“User Representations”). You must review all User Representations and ensure such information is accurate, complete, and timely. You acknowledge that Niural is entitled to rely conclusively on all User Representations and that Niural does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the User Representations. You further acknowledge that Niural bears no responsibility and shall not have any liability for errors, omissions, penalties, fines, missed payments, judgments, incorrect coverage, or any other losses incurred that result from inaccurate, incomplete, or untimely User Representations.
2.3 Customer Data. With respect to any information that you provide or make available through the Niural Services (including information based on the usage of or interactions with the Niural Services, and Account Information and Materials, each as defined herein, but excluding information about Users provided to Niural in connection with the creation or administration of a Niural Account) (collectively, the “Customer Data”), you represent and warrant that you have the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Data in connection with your use of the Niural Services. Without limiting the foregoing, in the event that you request that Niural provide any Customer Data (including employee and contractor information) to any third party or to any non-U.S. Customer location, you represent that you have acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable laws. By providing any Customer Data to Niural, you hereby grant and will grant Niural and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, license to copy, display, upload, perform, distribute, model, index, store, modify, create derivative works from and otherwise use your Customer Data to provide the Niural Services and interoperability with Third Party Products, including, without limitation, as set forth in this Agreement, Niural’s User Privacy Notice, and Niural’s Data Protection Addendum. You understand that the technical processing and transmission of the Niural Services, including Customer Data, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices.
2.4 Account Administration; Authorizations.
(a) Accounts. To use the Niural Services, you must create an account (an “Account”) by providing your email address (“Account Email”) and a master password (the “Master Password” and, together with the Account Email, the “Credentials”). You are responsible for the security of your Account, and agree to keep your Credentials secure. You understand that your Account is solely for your use, and you will not share your Account or Credentials with anyone. You are fully responsible for all activities on the Niural Services associated with your Account. As a Customer, you are fully responsible for all activities of your employees and contractors on the Niural Services associated with their User Accounts.
(b) Account Administration. Customer will designate and authorize either itself and/or one or more individuals with authority to (i) act on Customer’s behalf, (ii) provide information on Customer’s behalf, and (iii) bind Customer and/or Customer’s business with respect to the Niural Services (each such individual, an “Account Administrator”). Customer is solely responsible for all actions taken under any account to which Customer has access. Any actions taken under such accounts will be deemed authorized by Customer, regardless of Customer’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (iv) actions taken by Customer, an Account Administrator, or an authorized accountant, broker, or HR/IT consulting representative of Customer (an “Authorized Representative”), and (v) actions that Customer, an Account Administrator, or an Authorized Representative (or anyone that Niural reasonably believes to be Customer, an Account Administrator, or an Authorized Representative) directs or instructs Niural to take on its behalf. Authorized Representatives may access the Niural Services solely for the purpose of providing accounting, brokerage, or HR/IT consulting services to Customer. Authorized Representatives may not extract data from Niural for use outside of the Niural Services or as part of any data aggregation service.
(c) Account Information. In order to access or use certain aspects of the Niural Services, you will need to provide access to information maintained by certain third party institutions, such as prior payroll companies with which you have a customer relationship, manage accounts or engage in transactions and the various applications and services for which you use Niural’s access and password management services. In order for Niural to provide those aspects of the Niural Services, you must provide all relevant information, signatures, data, passwords, usernames, PINs and other necessary information, materials and content (“Account Information”). You retain all right, title and interest in and to your Account Information, and represent and warrant that the Account Information provided is accurate and complete and may be provided to Niural without any obligations on Niural to verify the accuracy or completeness of such Account Information. You are responsible for the consequences of any instructions provided that Niural follows, and Niural has no liability or responsibility for any inability to use the Niural Services due to such inaccuracy or incompleteness of Account Information.
(d) Account Security. Customer is solely responsible for (1) following instructions that Niural provides to Customer with respect to the Niural Services, and (2) maintaining applicable accounts with providers of Third Party Products (as defined above) utilized by Customer. Customer will adequately secure and keep confidential any Customer passwords or credentials, and any information accessible via its account. Customer accepts all risks of unauthorized use of its Account arising from Customer’s failure to implement security safeguards or otherwise maintain the confidentiality of its passwords or credentials and hereby releases, indemnifies, defends and holds harmless from any liability in connection with any such unauthorized access. If Customer believes or suspects that its account, passwords or credentials have been accessed or compromised, Customer must immediately notify Niural Support at support@niural.com. Niural reserves the right to prevent access to the Niural Services if Niural has reason to believe that any accounts, passwords or credentials have been compromised.
(e) Communications and Notifications. Customer is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) made available to Customer by Niural for Customer’s review, and Customer must notify Niural of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Niural. Customer must promptly notify Niural of any third party notices that Customer may receive which could affect Niural’s ability to effectively provide the Niural Services (e.g., to the extent applicable, notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Niural Services, or notices from insurance carriers regarding eligibility, enrollment, payment or any other communications affecting the contract of services with that insurance carrier).
(f) Authorizations. Customer agrees that, to the fullest extent permitted by law, the provision of account login or identity verification credentials to Niural by or on behalf of Customer, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Niural Services, whether by clicking the applicable action button, providing a verbal instruction or otherwise, will have the same effect as providing a written signature authorizing the applicable action.
2.5 Third Party Products.
(a) Independent Services. The Niural Services are designed to work with many Third Party Products; however, Third Party Products are not Niural Services. Niural does not provide any representations, warranties, indemnities, or support with respect to such Third Party Products, unless expressly provided herein or an applicable MSA. You (and not Niural) decide whether to enable Third Party Products, and any use of such Third Party Products and any exchange of data, including Customer Data, between Customer or a User and any such third party provider or Third Party Product is solely between Customer or User and such third party provider. When you enable a Third Party Product, you grant Niural permission to allow the Third Party Product and its provider access to Customer Data as required for the interoperation of that Third Party Product with the Niural Services. For the interoperation of the selected Third Party Products with the Niural Services, you may be required to obtain access to such Third Party Products directly from their providers, and/or grant Niural the ability to create, access, delete and/or otherwise modify your account(s) on such Third Party Products. You acknowledge that Niural is not responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third Party Product, and that the handling of such Customer Data within the Third Party Product will be exclusively governed by the separate terms and agreements, if any, between you and such third party provider. Customer and Users will comply with all terms and conditions applicable to the use of Third Party Products, and will not use Niural integrations with Third Party Products in any manner that damages, disables, overburdens, or impairs any websites, servers, or otherwise interferes with the Third Party Products. Customer acknowledges it has sole responsibility for, and assumes all risks arising from, Customer’s use of any Third Party Products. Niural does not guarantee the continued availability, operation, or utility of Third Party Products or Niural Services features integrated with Third Party Products, and may cease providing certain Third Party Products via the Niural platform without notice or entitling you to any refund, credit, or other compensation.
(b) Authorizations for Third Party Products. To connect the Niural Services with Third Party Products, you authorize Niural to, as applicable: (1) store relevant Account Information, (2) access the relevant service using the Account Information you provide Niural, (3) use and apply any signatures or other materials you provide Niural in order to provide related services, such as to complete a tax document, (4) gather and export from such Third Party Product any data or other information reasonably necessary to provide related Niural Services to you, such as Customer’s payroll information, bank account information, Customer’s employees’ bank account information, and any additional information, such as the personal information of Customer’s employees, requested by such Third Party Product that Customer has provided or made available to Niural in connection with the Niural Services, and (5) otherwise take any action in connection with such Third Party Product as reasonably necessary to provide related services to you, including, but not limited to, opening accounts and making changes on your behalf with such third-party institutions. You further designate Niural as your agent and limited attorney-in-fact in connection with Third Party Products, if required and only as required to use the Third Party Product (e.g., tax filing systems). You agree that such third party providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you in their provision of the Third Party Product via the Niural Services.
(c) Management of Third Party Accounts. You are solely responsible for (1) ensuring that any Third Party Product accounts are accurately and properly provisioned for or matched to your Niural Service account, (2) ensuring the termination or de-linking of any Third Party Product accounts for employees or contractors who should not have access to such Third Party Product accounts or your Niural account (e.g., due to termination of their employment or engagement), and (3) otherwise following all instructions provided by Niural in connection with matching, de-linking, termination or other management of your Niural accounts in relation to Third Party Products.
2.6 Prohibited Use
2.7 Compliance with Laws; Digital Millennium Copyright Act.
(a) Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting your business, and any use you may make of the Niural Services to assist you in complying with any such laws, rules or regulations. In addition, Customer is responsible for ensuring that its employees and contractors comply with applicable laws while using the Niural Services, including the intellectual property and third-party rights of others.
(b) Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated under the Digital Millennium Copyright Act (“DMCA”), you should notify notices@ niural.com of your infringement claim, which shall include: (a) the subject line of “DMCA Takedown Request”; (b) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (c) a description of the copyrighted work or other intellectual property that you claim has been infringed; (d) a description of where the material that you claim is infringing is located on the Niural Service, with enough detail that we may find it on the Niural Service; (e) your address, telephone number, and email address; (f) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (g) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. In accordance with the DMCA and other applicable law, Niural has adopted a policy of terminating, in appropriate circumstances and at Niural’s sole discretion, Users who are deemed to be repeat infringers. Niural may also at its sole discretion limit access to the Niural Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
3. Term and Termination.
3.1 Term. The term of this Agreement will commence on the date you first execute an MSA or, if earlier, begin using any Niural Service, and will continue until terminated as provided in this Agreement (the “Term”). With respect to any Niural Services provided under an MSA, the subscription term for such Niural Services will be as specified in the applicable MSA (with respect to the applicable Niural Services, the “Initial Subscription Term”), and will automatically renew for additional periods equal to the shorter of the same duration as the Initial Subscription Term or twelve (12) months (each of the Initial Subscription Term and subsequent renewal terms, a “Subscription Term”), unless either party notifies the other party of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term. Niural may change the Niural Services, stop providing the Niural Services or features of it or create usage limits for the Niural Services for all of our Users generally, provided that we will notify you of any material change at least thirty (30) days prior to the implementation of the change unless the changes are being made for legal reasons in which case we will notify you within a reasonable time period. If Niural discontinues a Niural Service in its entirety, you will not be obligated to pay for the discontinued service after the date Niural ceases to offer such service.
3.2 Termination. Niural may immediately terminate your access to the Niural Services and this Agreement without liability to Customer for any actual or suspected violation of any provision of this Agreement and failure to cure within thirty (30) days following written notice thereof. You may deactivate your Niural Services account at any time by using the tools provided in the Niural Service, however (i) such action will not be deemed a termination of the Agreement or any associated payment obligations; (ii) the terms of this Agreement shall continue to apply until the end of the then-current Subscription Term, and to any use of the Niural Services whether during or after the Subscription Term; (iii) you will remain obligated to pay any outstanding fees to Niural pursuant to the terms of Section 4.1 and your MSA; and (iv) solely in the event you pose a demonstrable credit risk to Niural, Niural may accelerate your unpaid payments or fees so that all such payment obligations become immediately due and payable. Customer may immediately terminate this Agreement and receive a refund of any prepaid and unused fees from the date of termination to the end of the Subscription Term if Niural is in material breach of any material term contained in this Agreement and fails to cure such breach within thirty (30) days following written notice thereof. Either party may immediately terminate this Agreement if the other party ceases business operations, generally stops paying its debts, becomes insolvent, or becomes the subject of a petition in bankruptcy, receivership, liquidation, or assignment for the benefit of creditors, provided however that such termination shall not affect Customer’s obligation to pay any outstanding fees due under Customer’s MSA. Upon any termination, the parties will continue to be bound by any terms of this Agreement that by their nature extend beyond termination.
3.3 Suspension. Without limiting our other rights or remedies, Niural may temporarily suspend your access to any portion of the Niural Services, including access to any leased equipment, without prior notice if (a) Niural reasonably determines that (i) there is a threat or attack on the Niural Services or other event that may create a risk to the Niural Services, you or any other customer or User of Niural; (ii) your use of the Niural Services disrupts or poses a security risk to the Niural Services or any other Niural customer; or (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws; DMCA) or (b) Niural has notified you that any amount owed by you under this Agreement is thirty (30) or more days overdue, and you have failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Service Suspensions''). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of Niural Services following any Service Suspension. Niural will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
4. Service Fees and Charges.
4.1 Fees.
(a) Payment of Fees. Customer agrees to pay the fees for the Niural Services in accordance with the applicable MSA, and authorizes Niural to conduct automatic debits of Customer’s designated bank account or other funding source for such fees as they become payable. Subscription fees are payable at the start of each Subscription Term (including any renewal terms), and Niural will automatically debit fees, and any applicable charges, from Customer’s designated bank account or funding source in accordance with Section 4.2 below.
(b) Minimum Number of Users.
Customer commits to a minimum number of Users and associated fees for each Subscription Term, as stated in the applicable MSA. The number of Users cannot be decreased during the Subscription Term, however Customer may reallocate any unused User seats to newly-hired employees. If Customer adds additional Users above the number stated in the applicable MSA, Customer agrees to pay all associated fees for such Users for the remainder of the Subscription Term. Unless otherwise stated in the applicable Additional Terms or MSA, additional User fees are based on the calendar month in which a User is enrolled or added to any Service, regardless of whether the User is only enrolled in the Services for a portion of such month, and will be prorated by month, where applicable, against the Subscription Term.
(c) Failed Payments; Invoices.
For past due amounts resulting from an ACH debit transaction that is rejected for insufficient funds, or any other rejected payment transaction, Customer understands that Niural may at its discretion attempt to process the debit again within thirty (30) days and that Niural may separately impose a fee of $25 for each such transaction, as permitted by applicable law. In the event of a failed or uncollected payment, and at Niural’s sole discretion, Niural may invoice Customer for any owed amounts and Customer agrees to pay such invoice no later than fifteen (15) days after receipt thereof. Interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was first due until the date that payment is received by Niural. Niural may report non-payment, past due receivables, and other trade information to corporate credit reporting and risk assessment agencies.
(d) Fee Cap.
For Customers with contractual commitments of at least one (1) year for which the scope of use remains the same and the number of Users has not been reduced, Niural will not increase fees at renewal by more than the greater of five percent (5%) or CPI (as calculated, maintained, and published by the United States Bureau of Labor Statistics) over the Customer’s Currency Adjusted Fee for the prior Subscription Term (not including any time-limited offer or promotion) “Currency Adjusted Fee” means the fee reflected on the Customer’s MSA, updated at renewal to reflect the prevailing currency exchange rate between Customer’s MSA currency and the United States Dollar, as determined by Niural using available benchmark rates.
(e) Splitting Fee with Third Party.
To the extent Customer designates an external or third party to pay for any portion of the Niural Services and later opts to remove or change that third party, Customer will be liable to pay for the full amount of the Niural Services until Customer has designated a new third party and such third party has agreed to pay for such charges.
4.2 Automatic Debits.
When Customer subscribes to a paid product that is part of the Niural Services, Customer authorizes Niural and its designated payment processors to store Customer’s designated bank account information and other related information. Customer authorizes Niural to automatically debit all applicable charges for such paid product from Customer’s designated payment account, including via ACH debit for bank accounts on the date such charges become due. This authorization to initiate ACH debit transactions will remain in full force and effect until Niural has received written notice from Customer by email at support@niural.com at least thirty days (30) in advance of the date the applicable charges for the paid product become due. Because these are electronic transactions, these funds may be withdrawn from Customer’s designated bank account immediately. In the case of an ACH debit transaction that is rejected for insufficient funds, Customer understands that Niural may at its discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and Niural may separately impose a fee of $25 for each transaction returned for insufficient funds, as permitted by applicable law. You certify that you are an authorized user of Customer’s bank account and Customer will not dispute these scheduled transactions with such bank so long as the transactions correspond to this Agreement, an applicable MSA, and/or any other applicable agreement for such paid product. Customer agrees to follow rules promulgated by the National Automated Clearing House Association (NACHA), which govern ACH transactions.
4.3 Fee Disputes.
Customer must notify Niural in writing if Customer disputes any portion of any fees paid or payable by Customer under this Agreement or any MSA. Customer must provide written notice to Niural within thirty (30) days of the applicable charge and Niural will work together with Customer to resolve the applicable dispute promptly. If Customer does not provide Niural with written notice of Customer’s fee dispute within this 30 day period, Customer will not be entitled to dispute any fees paid or payable by Customer.
4.4 Taxes and Administrative Fees.
All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Niural’s net income. Certain Niural Services may be subject to credit card processing fees, foreign exchange fees or other administrative fees as specified in the MSA (collectively, “Administrative Fees”), and Customer shall be responsible for payment of all applicable Administrative Fees. In the event that Niural pays any Taxes, Administrative Fees or other amounts (including, without limitation, tax authority interest charges and/or tax authority penalties related to Errors (as defined in the Payroll Additional Terms) that are fully or partially abated after payment by Niural) that should have been paid and/or remitted to the applicable third party by Customer, Customer agrees to promptly pay and/or refund all such amounts to Niural.
5. Proprietary Rights and Confidentiality.
5.1 Niural’s Ownership Rights.
As between the parties, all right, title, and interest in and to the Niural Services, including Niural Content, shall remain vested in Niural. Except for the express rights granted hereunder, Niural also reserves all rights, title and interests in and to the Niural Services and Niural’s Confidential Information.
5.2 Feedback.
Customer or Users may from time to time provide Niural suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Niural Services. Niural will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Niural will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.3 Customer Data.
All right, title, and interest in and to the Customer Data, including the Account Information and Materials, you provide will remain vested in you.
5.4 Confidentiality.
“Confidential Information” means any information disclosed by either party that should be reasonably understood to be confidential in light of the nature of the information. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party will protect any Confidential Information of the other party which it may receive or otherwise be exposed to in the course of exercising its rights or performing its obligations hereunder. Each party will use the same care to protect the other party’s Confidential Information as it would use to protect its own similar information, but in no event less than reasonable care. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under this Agreement. Neither party will disclose any Confidential Information of the other party to any third party without the prior written consent of the disclosing party, other than furnishing such Confidential Information (i) to its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of receiving party’s rights or performance of its obligations under this Agreement, and (ii) to its professional advisers (e.g., lawyers and accountants), provided, however, that any and all such employees, consultants and advisers are bound by agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such Confidential Information in a manner that is consistent with the terms and conditions of this Section. You acknowledge and agree that Niural may preserve Confidential Information (including, without limitation, Customer Data) and may also disclose Confidential Information and Customer Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Niural, its users and the public.
5.5 Data Security and Privacy.
(a) Data Security.
Niural will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any Customer Data. Such safeguards will include, at minimum, an industry standard information security program to safeguard such Customer Data as well as procedures to help ensure that only those with a “need to know” have access to such Customer Data. Niural will take commercially reasonable measures to investigate, contain and mitigate any incident that has or potentially has compromised the security, confidentiality or integrity of any Customer Data. Niural will promptly notify Customer upon becoming aware of an incident that has or potentially has compromised the security, confidentiality or integrity of such Customer Data. Niural will comply with all notification obligations that may be required by applicable state and federal laws and regulations. Niural further reserves the right to protect its network and services from external threats, including by restricting network access from various hosting providers, traffic proxies, and locations where Niural does not conduct business. Niural will also implement the security measures outlined in the Niural Data Processing Addendum available at https://www.niural.com/dpa (“Niural DPA”) with respect to any Customer Personal Data (as defined in the Niural DPA).
(b) Data Privacy.
Niural will process Customer Personal Data, as defined in the Niural DPA, in accordance with the terms set forth in the Niural DPA. All other User personal information that Niural collects and processes in connection with the Services will be used in accordance with Niural’s User Privacy Notice available at https://www.niural.com/privacy-policy. The Privacy Notice does not apply to Customer Personal Data.
6. Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE NIURAL SERVICES ARE PROVIDED “AS IS'' TO THE FULLEST EXTENT PERMITTED BY LAW. NIURAL HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE Niural SERVICES. WITHOUT LIMITING THE FOREGOING, NIURAL DOES NOT WARRANT THAT THE NIURAL SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NIURAL OR THROUGH THE NIURAL SERVICES WILL CREATE ANY WARRANTY. NIURAL DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
7. Indemnification.
Niural is not an intermediary, advisor, agent or third party to Customers with regard to any service, and we take no responsibility for the quality or adequacy of any Deliverables or services performed, Customer disputes and or content posted to the Platform by Customers.
The Customer (referred to as "You") will defend Niural and its affiliates against third-party claims related to violations of the Agreement or User Terms, indemnifying Niural for associated costs. Niural will promptly notify the Customer of any claims, granting the Customer the right to assume exclusive defense.
Niural agrees to indemnify the Customer against third-party claims alleging infringement of intellectual property rights by the Niural Services. The Customer must promptly inform Niural of such claims, allowing Niural sole control for defense and settlement. Niural may, if necessary, procure a license, modify the infringing component, or terminate the Customer's right to use it, providing a prorated refund. This section defines Niural's responsibility and the Customer's exclusive remedy for intellectual property infringement under the Agreement.
8. Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF NIURAL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. NIURAL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE NIURAL SERVICES PROVIDED FOR IN THIS AGREEMENT.
EXCEPT WITH RESPECT TO NIURAL’S IP INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL NIURAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE NIURAL SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE NIURAL SERVICES, EVEN IF NIURAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NIURAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT OF FEES PAID TO NIURAL HEREUNDER IN THE EIGHTEEN (18) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF Niural HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES, PROVINCES AND OTHER TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
9. Miscellaneous.
9.1 Assignment; Delegation.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Niural, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted transfer or assignment in violation hereof shall be null and void. Niural, in its sole discretion, may use vendors or contractors to help provide the Niural Services to you, and may, subject to the terms of the DPA, change our use of vendors or contractors without notice to you. Niural will remain responsible for the acts and omissions of such vendors and/or contractors. To the extent consistent with applicable law, Niural and/or its Affiliates may receive commissions, referral fees or other sources of revenue with respect to your use of the Niural Services and/or certain Third Party Products.
9.2 Governing Law.
This Agreement will be construed in accordance with and governed by the substantive laws of the respective jurisdiction. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
9.3 Notices.
Niural may provide notifications, whether required by law or for marketing and other business-related purposes, to you via email notice, mobile messaging (e.g., SMS or MMS), mail, written or hard copy notice, or through posting on the Niural Services, as determined by Niural in its sole discretion. Niural reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as outlined in the Electronic Disclosure (“Electronic Disclosure and Consent”). Niural is not responsible for any automatic filtering you or your network provider may apply to email notifications Niural sends to the email address you provide. Niural may, at its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When Niural materially changes this Agreement, Niural will update the ‘Last Updated’ date at the top of this page and notify you that material changes have been made to this Agreement, following the procedures outlined in the Electronic Disclosure and Consent. Any such changes will become effective no earlier than thirty (30) days after they are posted, except that changes addressing new functions of the Niural Services or changes made for legal reasons will be effective immediately. Your continued use of the Niural Services after the date any such change becomes effective constitutes your acceptance of this Agreement, as updated. If you do not agree to any of these terms or any future terms, you may not use or access the Niural Services. Notices to Niural shall be made to the attention of the “Legal Department” and sent via mail to : 1209 Lakeside Ranch Rd Georgetown, TX 78633, with a copy sent via email to support@niural.com.
9.4 Waiver.
No waiver of any rights will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Force Majeure.
Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.8 Entire Agreement.
This Agreement (including all MSAs, the Niural User Privacy Notice, the Niural Data Processing Addendum, Additional Terms, and any supplemental policies or terms referenced herein or which Niural may present you for review and acceptance at the time you subscribe to the applicable Niural Service) comprises the entire agreement between you and Niural with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by Niural, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. Niural and Customer declare that they have requested and do hereby confirm their request that the present agreement and the ancillary documents related thereto be in English; les parties declarent qu'elles ont exige et par les presentes confirment leur demande que la presente convention ainsi que les documents connexes soient rediges en anglais; las partes declaran que han requerido y por la presente confirman su solicitud de que este acuerdo y los documentos relacionados se redacten en inglés; Die Parteien erklären, dass sie verlangt haben und bestätigen hiermit ihren Wunsch, dass diese Vereinbarung und die zugehörigen Dokumente in englischer Sprache verfasst werden. The English language version of this Agreement and any other document, policy, terms or other materials referenced herein or provided hereunder shall control in the event of a conflict or inconsistency with any translated version, each of the foregoing binding in the English version only with any version of the foregoing made available in any other language for convenience only.
9.9 Interpretation.
Terms and phrases that are defined in any part of this Agreement shall have the defined meanings wherever used throughout this Agreement.
(a) The terms "hereunder" and "herein" and similar terms used in this Agreement shall refer to the Agreement in its entirety and not merely to the section, paragraph or subparagraph in which the term is used.
(b) Any reference to “including” in the Agreement means “including without limitation.”
(c) Unless there is a specific reference to the contrary, any reference to “day” or “days” in the Agreement shall mean calendar days.
9.10 Marketing.
Customer agrees that Niural may use Customer name and logo on our website and in other promotional marketing materials, unless Customer opts out of such usage by sending an email to unsubscribe@niural.com. Notwithstanding the foregoing, Niural will not use the name or logo of existing Customers prior to March 19, 2021, unless such Customer separately consented to such usage.
9.11 Anti-Corruption.
(a) Each Party agrees, in its performance of its obligations under this Agreement, to comply, and to cause its affiliates to comply, with applicable Anti-Corruption Laws, which may include but are not limited to the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), as applicable, and all other applicable anti-corruption and anti-bribery laws (collectively, “Anti-Corruption Laws”). In general, the Anti-Corruption Laws prohibit directly or indirectly making, promising, authorizing, or offering any advantage or anything of value to public officials or private persons or corporations to secure an improper advantage, to improperly obtain or retain business, or to direct business to any other person or entity.
(b) Each Party will maintain policies and procedures designed to ensure its compliance with applicable Anti-Corruption Laws. Neither Party shall knowingly take any action that would cause the other Party to be in violation of Anti-Corruption Laws. Each Party shall immediately notify the other Party if such Party has any information or suspicion that there may be a violation of any Anti-Corruption Law in connection with the performance of any activities under this Agreement.
9.12 Export Compliance.
Customer agrees that its use of the Niural Services will comply with all export and import laws and regulations of the United States and other applicable jurisdictions (“Export Control Laws”). Customer represents and warrants that (a) it is not a citizen of, or located within, a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Syria and North Korea); (b) it is not identified on any government restricted party lists (including, without limitation, the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the Denied Party List, Entity List and Unverified List, administered by The Bureau of Industry and Security of the U.S Department of Commerce, and the UK Sanctions List); and (c) that no Customer Data is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. Customer acknowledges that the Niural Services may not be available in all jurisdictions, and that Customer is solely responsible for complying with the Export Control Laws and monitoring Export Control Laws for any modifications.
9.13 Future Functionality.
Customer agrees that it has not relied on the availability of any future functionality of the Niural Services or any other future product or service in executing this Agreement or any MSA. Customer acknowledges that information provided by Niural regarding future functionality should not be relied upon to make a purchase decision.
9.14 Construction.
Niural has prepared this Agreement and provided it to Customer for Customer’s review. Customer has either retained counsel or had the opportunity to do so to review this Agreement. With respect to any dispute concerning the meaning of this Agreement, this Agreement will be interpreted as a whole with reference to its relevant provisions and in accordance with its fair meaning, and no part of this Agreement will be construed against Niural on the basis that Niural drafted it. This Agreement will be viewed as if prepared jointly by Niural and Customer.
9.15 Headings.
Captions and organization are for convenience and may not be used in construing meaning.
10. Arbitration and Class Action Waiver
You agree to first attempt to resolve disputes with us in good faith and in a timely manner. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the Parties agree first to try in good faith to settle the dispute by mediation administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under its International Mediation Rules before resorting to arbitration, litigation, or some other dispute resolution procedure. If the Parties have not been successful in resolving the dispute through mediation as set forth in, then the Parties shall attempt to resolve the dispute through binding arbitration by a sole arbitrator selected by the Parties in accordance with the Comprehensive Arbitration Rules of the JAMS in effect at the time, in Texas, United States, using the English language, before a single arbitrator. Claims involving amounts greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures; and Claims involving amounts less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and Niural are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and Niural will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules.
11. Territory Specific Terms.
The following provisions apply only with respect to Customers domiciled in the specific territory(ies) identified. To the extent of a conflict among any territory-specific provision below and the provisions of the Customer Terms of Service set forth above, the territory-specific provision(s) will control to the extent of such conflict. In all other respects, the Niural Customer Terms of Service remain as written unless expressly modified by a territory-specific provision below.
European Economic Area, United Kingdom, and Switzerland
(a) This provision shall replace Section 9.2 (Governing Law): This Agreement and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of England and Wales, including its statute of limitations, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, the Parties irrevocably agree that the courts of England located in London shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and agree to submit to the jurisdiction of such courts.
(b) This provision shall replace clause (b) of Section 10.4 (Details of Arbitration Procedure): If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either party may initiate an arbitration proceeding under the then-current rules (“Rules”) of the London Court of International Arbitration (“LCIA”), which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of England and Wales. The party initiating arbitration in accordance with this Section and the Rules may take any steps to seek expedited procedures under the Rules and the other party agrees that it shall not oppose, hinder or delay any request for expedited procedures where available. To the extent anything described in this agreement to arbitrate conflicts with the Rules, this agreement to arbitrate shall govern and control to the extent of such conflict.
(c) This provision shall replace clause (d) (Arbitration Award) of Section 10.4 (Details of Arbitration Procedure): The arbitrator’s award will be based on the rules of evidence admitted under, and the substantive law of, England and Wales, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable and documented out-of-pocket attorneys’ fees and reasonable expert witness fees.
(d) To the extent of any conflict between any statutory law in Customer’s country of domicile applicable to Customer, and the terms and conditions of this Agreement or any policies incorporated or referenced herein, the applicable statutory law shall govern and control to the extent of any such conflict.
Asia-Pacific-Oceania (e.g., Australia, New Zealand, People's Republic of China and Hong Kong, India, Indonesia, Japan, Republic of Korea, Malaysia, Singapore)
(a) This provision shall replace Section 9.2 (Governing Law): This Agreement and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of England and Wales, including its statute of limitations, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, the Parties irrevocably agree that the courts of Singapore shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and agree to submit to the jurisdiction of such courts.
(b) This provision shall replace clause (b) of Section 10.4 (Details of Arbitration Procedure): If the informal dispute resolution process does not result in a resolution of the dispute within 60 days after the conference is held, either party may initiate an arbitration proceeding under the then-current rules (“Rules”) of the Singapore International Arbitration Centre (“SIAC”), which Rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. The party initiating arbitration in accordance with this Section and the Rules may take any steps to seek expedited procedures under the Rules and the other party agrees that it shall not oppose, hinder or delay any request for expedited procedures where available. In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in relation to the arbitration, the parties agree (a) to commence such proceedings before the Singapore International Commercial Court (the “SICC”); and (b) in any event, that such proceedings shall be heard and adjudicated by the SICC. To the extent anything described in this agreement to arbitrate conflicts with the Rules, this agreement to arbitrate shall govern and control to the extent of such conflict.
(c) This provision shall replace clause (d) (Arbitration Award) of Section 10.4 (Details of Arbitration Procedure): The arbitrator’s award will be based on the rules of evidence admitted under, and the substantive law of, England and Wales, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable and documented out-of-pocket attorneys’ fees and reasonable expert witness fees.
France
(a) To the extent permitted under applicable law, the provisions of Article 1222 and 1223 of the French Civil Code shall in no event be applicable.
Germany
(a) This provision shall replace Section 8 (Limitation of Liability): YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF NIURAL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. NIURAL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE NIURAL SERVICES PROVIDED FOR IN THIS AGREEMENT. EXCEPT WITH RESPECT TO NIURAL'S IP INDEMNIFICATION OBLIGATIONS OR TO THE EXTENT ARISING FROM NIURAL’S WILFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL NIURAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE NIURAL SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE NIURAL SERVICES, EVEN IF NIURAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT ARISING FROM NIURAL’S WILFUL MISCONDUCT, NIURAL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT OF FEES PAID TO NIURAL HEREUNDER IN THE EIGHTEEN (18) MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF NIURAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
