nCommon Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”) governs your use of the Service made available by P180 Investments, LLC dba nCommon (“nCommon”). The Agreement is a binding legal agreement between nCommon and the entity or individual entering into the Agreement (the “User”).
BY ACCEPTING THE AGREEMENT, CLICKING A BOX INDICATING YOUR ACCEPTANCE OR USING THE SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE ENTERING THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT. YOU MAY NOT ACCESS OR USE THE SERVICE IF YOU ARE A COMPETITOR OF NCOMMON.
Definitions
“Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that: (a) is designated by the disclosing party as proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. nCommon’s Confidential Information includes without limitation its Service, security, technical or performance information about the Service.
“Connection” means a digital dossier profile of a Prospect compiled by the Service from publicly available sources of business and personal information about the Prospect.
“Feedback” means written and verbal feedback provided by the User on the features, functionality and performance of the Service and any testing results.
“Outreach” means Prospect-personalized messaging that can be edited by the User with the Service’s built-in email builder function and then copied and saved to the User email program.
“Prospect” is an individual designated by the User for sales prospecting purposes for which a Connection will be provided by the Service.
“Service” means nCommon’s SaaS-based applications for sales prospecting effort enhancement and management including, without limitation, all code, documentation, software and any pre-generally available updates, new versions, and upgrades, if any, and content (the “Service”).
“Service Deliverables” means the Connection and Outreach components of the Service.
“Subscription Term” means the period beginning on the date you accept the Agreement and ending on the end date set forth in the applicable nCommon order form unless terminated earlier as set forth in the Agreement.
“User Data” means the data and information submitted by the User to the Service.
1. Access and Use of Service and Service Deliverables
Contingent on User’s payment of all relevant fees and continuous compliance with the terms and conditions of this Agreement, during the Subscription Term, nCommon grants the User a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Service and to use the Service Deliverables solely for User’s internal business purposes nCommon and subject to any limitations or restrictions designated in an applicable nCommon order form and this Agreement. Access and use of the Services is restricted to Users located in the United States. The number of Connections available to the User and the Subscription Term will be set forth in the applicable Order Form. Any rights not specifically granted herein are reserved by nCommon.
2. Data Protection
nCommon has taken reasonable measures to protect and secure User Data but does not guarantee the security of User Data and will not be liable in any way for any unauthorized access or loss of User Data. nCommon shall not (a) modify User Data, (b) disclose User Data except as compelled by law in accordance with Section 6(c) or as expressly permitted in writing by the User, or (c) access User Data except to provide the Service and Service Deliverables and to prevent or address service or technical problems, or at the User’s request in connection with customer support matters.
3. User Account; Contact Consent; License for User Data
(a) User is responsible for maintaining the confidentiality of the passwords assigned to User and to its End Users. User will immediately notify nCommon upon becoming aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised.
(b) The User is responsible for all activities under the User’s account. User shall (i) prevent unauthorized access to, or use of, the Service, and shall promptly notify nCommon of any unauthorized access or use of which the User becomes aware, and (ii) shall comply with all applicable laws, including without limitation applicable privacy laws, in using the Service and all Service Deliverables.
(c) It is the sole responsibility of the User to comply with all applicable data protection and data privacy laws and regulations with respect to the Prospect that is the subject of a Connection and to obtain the appropriate consent of such Prospect regarding use of all personal information that may be contained in the Connection and consent to be contacted and marketed to.
(d) The User hereby grants nCommon, its affiliates and relevant contractors a worldwide license to host, use, transmit and display User Data as reasonably necessary to provide the Services and Service Deliverables. Subject to the limited rights granted by User hereunder, nCommon acquires no right, title or interest under this Agreement in or to the User Data, including any intellectual property rights therein.
4. Restrictions on Use
(a) The Service may not be accessed or used if the User is a direct competitor of nCommon.
(b) The User represents and warrants that it shall not, nor allow any person or entity acting on its behalf, to (i) use the Service or Service Deliverables for non-business related contact purposes; (ii) use Service Deliverables and information obtained via the Service for mass email purposes or to spam recipients; (iii) use the Service or Service Deliverables in an unlawful, threatening, or harassing manner; (iv) modify, copy or create derivative works based on the Service or Service Deliverables except as allowed in the nCommon documentation with respect to the Outreach Service Deliverable; (iv) modify, delete or remove any ownership, title, trademark, patent or copyright or other legal notices from the Service or any Service Deliverables; (v) make the Service or Service Deliverables available to any third party except as specifically allowed in the nCommon Documentation; (vi) make the Service or Service Deliverables available to any third party or use the Service or Service Deliverables for the benefit of any entity other than the User; (vi) access or attempt to access any of nCommon’s applications, data, or systems that are not made available for public access or public use; attempt to circumvent any security mechanisms used by nCommon; (vii) disassemble, reverse engineer, or decompile the Service or part thereof, or access Service in order to copy any ideas, features, content, functions or graphics of the Service; (ix) interfere with or disrupt the integrity or performance of the Service; (x) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (xi) sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Service or any Service Deliverables to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (xii) release any results of performance tests related to Service to any third party without the prior written consent of nCommon; (xiii) use the Service for any purpose other than as specifically provided in the Agreement.
5. Ownership of Service and Feedback
(a) nCommon and its affiliates and licensors own and retain all right, title, and interest to the Service and Service Deliverables including without limitation all intellectual property rights and other rights in the Service, Service Deliverables, software, source code, programming, content, dashboards, documentation, formats, templates, nCommon technology, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Service or made available to the User as a result of the Service, including any modifications or improvements.
(b) From time to time during the Term, the User shall provide verbal and written Feedback to nCommon regarding the use of the Services and deliverables. nCommon owns all Feedback and any intellectual property rights therein and shall be entitled to exploit such Feedback for any purposes.
6. Confidentiality
(a) As used in this Agreement, the “Disclosing Party” means the party that discloses, transmits or otherwise communicates Confidential Information to the Receiving Party. The “Receiving Party” means the party that receives the Confidential Information from the Disclosing Party. “Confidential Information” means any information, maintained in confidence by the Disclosing Party, communicated in written or oral form, marked as proprietary, confidential or otherwise so identified, and/or any information that by its form, nature, content or mode of transmission would to a reasonable recipient be deemed confidential or proprietary. User Data is the Confidential Information of the User to the extent it does not meet one or more of the exclusions to Confidential Information below. nCommon Confidential Information includes, without limitation, the Service and its content, Service Deliverables, nCommon documentation, and any benchmark data and results produced, security and technical information, product plans and designs. Confidential Information shall exclude: (i) information which the Receiving Party has been authorized in writing by the Disclosing Party to disclose without restriction; (ii) information which was rightfully in the Receiving Party’s possession or rightfully known to the Receiving Party prior to receipt of such information from the Disclosing Party; (iii) information which was rightfully disclosed to the Receiving Party by a third party having proper possession of such information, without restriction; (iv) information which is part of or enters the public domain without any breach of the obligations of confidentiality by the Receiving Party; and (v) information which is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
(b) The Receiving Party shall treat the Disclosing Party’s Confidential Information confidentially and use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind which shall not be less than a reasonable standard of care. The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third-party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent. The Receiving Party agrees, at any time upon the request of the Disclosing Party or any termination or expiration of this Agreement, to return the Disclosing Party’s Confidential Information or certify the destruction of such Confidential Information.
(c) Compelled Disclosure. The Receiving Party shall be permitted to disclose Confidential Information in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that the Receiving Party shall, where reasonably possible, give the Disclosing Party prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of the Disclosing Party to obtain a protective order.
(d) Remedies. In the event of a breach of this Section 6, the Disclosing Party may not have an adequate remedy at law. The parties therefore agree that the Disclosing Party may be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction.
(e) The nCommon Service and all components, software, source code, design features, and documentation are perpetually confidential, the obligations of the User pursuant to this Section 6 are perpetual and shall survive termination. For all other Confidential Information, the foregoing obligations shall continue for three (3) years from the date of initial disclosure or the duration of the Agreement, whichever is longer.
7. WARRANTY DISCLAIMER
THE SERVICE AND DELIVERABLES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES RELATING TO FITNESS FOR PURPOSE, NON INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT. NCOMMON DOES NOT WARRANT THAT ANY SERVICE OR DELIVERABLE WILL MEET THE REQUIREMENTS OF THE USER, THAT THE INFORMATION CONTAINED IN THE SERVICE OR DELIVERABLE IS ACCURATE; THAT ANY SERVICE OR DELIVERABLE IS FREE FROM DEFECT, ERROR OR WITHOUT DELAY; THAT THE ACCESS OR USE OF THE SERVICE OR DELIVERABLE WILL BE UNINTERRUPTED; OR THAT ENOUGH INFORMATION EXISTS THROUGH PUBLICLY AVAILABLE SOURCES TO PROVIDE THE SERVICE AND DELIVERABLES. NCOMMON DOES NOT WARRANT OR REPRESENT THAT ANY PROSPECT FOR WHICH A CONNECTION IS PROVIDED HAS CONSENTED TO BE CONTACTED BY USER.
8. Limitation of Liability
(a) Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NCOMMON WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE USER OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES (1) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, OR (2) RESULTING FROM ANY: (i) USE OF THE SERVICE OR SERVICE DELIVERABLES, (ii) ERRORS, MISTAKES, OR INACCURACIES OF SERVICE OR SERVICE DELIVERABLES; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF NCOMMON’S SYSTEMS OR SERVERS AND/OR ANY AND ALL USER DATA INCLUDING WITHOUT LIMITATION PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (e) ANY INTERRUPTION OR CESSATION OF THE SERVICE; (iv) ANY LOSS OF YOUR DATA OR CONTENT FROM SERVICE; (h) ANY ERRORS OR OMISSIONS IN ANY SERVICE DELIVERABLES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER’S USE OF THE SERVICES OR SERVICE DELIVERABLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NCOMMON IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Cap on Damages. NCOMMON’S TOTAL LIABILITY TO USER OR ANY PERSON OR ENTITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT PAID BY USER TO NCOMMON FOR THE SERVICE UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER.
9. Subscriptions; Payment Terms for Subscriptions; Taxes
(a) Unless stated otherwise on the nCommon Order form, access and use of the Service and Service Deliverables are purchased as a subscription for the Subscription Term with the number of Connections designated in the nCommon order form. Additional Connections may be purchased at nCommon’s then-current fee. Connections not used in the month purchased will carry over to the next month of the Subscription Term, however if the Subscription Term expires or is terminated as set forth in this Agreement, such Connections will also expire and terminate and there is no refund of paid fees by nCommon.
(b) Payment obligations are not refundable and are not cancellable.
(c) Unless stated otherwise in the nCommon Order form, all fees are payable in advance of access to the Service either by credit card or by wire transfer.
(d) The User is responsible for and shall pay all applicable sales, services, use, and withholding tax applicable to the Service when invoiced by nCommon.
(e) The User is responsible for providing accurate and complete billing information to nCommon.
10. Subscription Term, Renewal, Suspension, and Termination
(a) The Subscription Term for the User to access and use the Service shall begin on the date the User accepts this Agreement and will continue until the purchased Subscription Term expires or the Agreement is earlier terminated as set forth in this Agreement, whichever is earlier.
(b) Unless terminated earlier as described in this Agreement, the Subscription Term shall automatically renew for additional periods equal in length to the expiring Subscription Term and the User shall pay the then-current applicable fee unless User notifies nCommon in writing at least 15 days prior to the expiration of the then-current Subscription Term that it does not wish to renew.
(c) nCommon may terminate this Agreement for cause: (i) upon 30 days’ written notice to the User of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) immediately upon notice if such breach is not capable of cure.
(d) Upon any expiration termination of the Agreement, the Subscription Term and all rights and licenses granted by nCommon herein shall terminate and User shall no longer have access or use the Service. Except if nCommon terminates the Agreement for cause due to User’s breach, User shall be entitled to keep and use the Service Deliverables, subject to the rights and restrictions of this Agreement, for which it has paid nCommon.
(e) Within 30 days after the expiration or termination of this Agreement, nCommon shall delete User’s account, any Service Deliverables associated with such account, and all User Data uploaded to the account except that nCommon may retain anonymized User Data relating to User’s choices and modifications of the Service Deliverables to improve and train nCommon’s AI models.
(f) Survival. These Sections survive expiration or termination of this Agreement: Definitions, 4 (Restrictions on Use), 5 (Ownership of Service and Feedback), 6 (Confidentiality), 7 (Warranty Disclaimer), 8 (Limitations of Liability), 9 (Subscriptions; Payment Terms for Subscriptions; Taxes), 10(d) (Effect of Termination), 10(f) (Survival), 11 (Indemnification by Customer), 12 (General Terms).
11. Indemnification by User
User shall indemnify, defend, and hold nCommon and its members, shareholders, directors, officers, employees, successors and assigns (collectively, the “nCommon Indemnitees”) from and against any third party demands, claims, actions, suits, proceedings, and investigations (each a “Claim”) alleging that User’s use of the Service or any Service Deliverable violate applicable law and shall pay all losses, costs, expenses, damages, and any and all other liabilities (including without limitation reasonable attorneys’ fees and expenses and court costs, damages awarded, and amounts agreed to in settlement).
12. General Terms
(a) Export Restrictions. The Service and Service Deliverables may be subject to U.S. export restrictions and import restrictions of other jurisdictions. User shall comply with all applicable export and import Laws in its access to and use of the Service and Service Deliverables. User shall not export, re-export, transfer or disclose the Service or Service Deliverable: (a) to (or to a national or resident of) any U.S. embargoed jurisdiction or (b) to anyone on any U.S. or applicable non-U.S. restricted- or denied-party list. User represents and warrants that User is not (a) a national or resident of any U.S. embargoed jurisdiction or (b) listed on any applicable non U.S. restricted- or denied-party list.
(b) Force Majeure. If nCommon’s performance of any part of this Agreement is prevented or delayed or the Service is not available due to, including without limitation, an act of God, act of war, act of terrorism, civil unrest, fire, flood, governmental action, Internet service provider failures or delays, denial of service attack, labor dispute or other causes or circumstances beyond nCommon’s control, then nCommon will be excused from performance for the length of that prevention or delay.
(c) Assignment. User may not assign User’s rights or obligations under these Agreement or delegate the Agreement without nCommon’s prior written consent. If consent is given, this Agreement will bind your successors and assigns. Any attempt by User to transfer User’s rights, duties, or obligations under this Agreement except as expressly provided herein is void. nCommon may freely assign its rights, duties, and obligations under this Agreement or any nCommon order form.
(d) Amendment. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the terms of such exhibit, addendum or order form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User’s purchase order or other order documentation (excluding nCommon order forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
(e) Remedies. Nothing in this Agreement is intended to waive or limit any remedy available to nCommon at law or in equity, including without limitation any remedy available under applicable copyright laws.
(f) Additional Provisions. If any portion of this Agreement is held to be unenforceable, the remainder of this Agreement shall be valid and enforceable. A delay or failure by a party in exercising its rights and remedies provided for in this Agreement is not and will not be a waiver of any right. No amendment or waiver of this Agreement will be binding unless it has been assented to in writing by both parties.
(g) Arbitration and Governing Law. All disputes, controversies, or claims between the parties arising out of or relating to this Agreement which cannot be settled by agreement shall be submitted for determination by arbitration by a single arbitrator in accordance with the rules of the American Arbitration Association ("AAA"). The arbitration will be governed by the Commercial Arbitration Rules of the AAA. An award rendered by the arbitrator shall be final and binding on all parties in the proceeding. Except as provided below in this Section, the parties stipulate that the provisions of this Section shall be a complete defense to any proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any dispute, controversy or claim arising out of or relating to this Agreement. The arbitrator has the right to award or include in any award such relief which the arbitrator deems proper in the circumstances including, without limitation, money damages, specific performance, injunctive relief and legal fees and costs. The award and decision of the arbitrator will be conclusive and binding upon all of the parties, and judgment upon the award may be entered in any court of competent jurisdiction. Each party reserves the right, exercisable only where such party reasonably believes the circumstances justify immediate relief, to obtain temporary restraining orders and temporary, preliminary or permanent injunctive relief from a court of competent jurisdiction, and such party is not required to submit such a dispute for arbitration. Unless the parties otherwise agree, the arbitration proceedings shall be conducted in English and shall take place in Austin, Texas, at a location designated by the arbitrator. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is excluded from application to this Agreement. The governing law shall be that of the State of Texas without regard to conflict of laws principles.
(h) Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered to the recipient party at the address identified in the nCommon order form or to such other addresses as the parties may advise each other of from time to time in writing. All notices under this Agreement will be deemed to have been duly given if delivered personally or by a nationally recognized courier service or, mailed by U.S. registered or certified mail, return receipt requested, postage prepaid. All notices under this Agreement that are addressed as provided in this Section, (a) if delivered personally or by a nationally recognized courier service, will be deemed given upon delivery, or (b) if delivered by mail in the manner described above, will be deemed given upon confirmation of delivery.
(i) Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(j) No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.
(k) Entire Agreement. This Agreement, including any addenda and exhibits and the referenced nCommon order forms, constitute the entire agreement between the parties with respect to the Service and any other matter hereunder, and supersedes any and all prior and contemporaneous negotiations, proposals, representations and agreements, whether written or oral, between the Parties with respect to the Service or any subject matter hereunder.