Nactivate Terms of Service
Updated January 26, 2023
Our Terms of Service is a contract between you and Nactivate. It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms. If you have an active Nactivate subscription, we will let you know when we do via an email or an in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Subscription Service and Consulting Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our products and service offerings.
SUBSCRIPTION TERMS. Customers of ours subscribe to use our software (yep, it’s SaaS), and there are some fundamental terms that apply to each subscription. There are some differences between the different types of subscriptions, and here’s where you can find that detail.
PRODUCT DISCLOSURES. We offer several different products and there are some important things to know before you use them. We’ve collected these important things to know and you can find them here.
GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected many of the remaining legal terms that make up our Customer Terms of Service.
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Terms of Service
These Terms of Service (the “Agreement”), is a legal agreement between you individually if you are agreeing to it in your own capacity, or if you are authorized to acquire Subscription Services and Consulting Services on behalf of your organization, between the entity for whose benefit you act (“you”, “your” or “Customer”), and Nactivate, LLC (“Nactivate”) (together the “Parties” and individually a “Party”).
BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON ON THE SUBSCRIPTION PAGE, OR BY USING THE SUBSCRIPTION SERVICES, CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT AND, IF YOU ARE ACTING ON BEHALF OF AN ORGANIZATION, THAT YOU ARE AUTHORIZED TO DO SO.
“Agreement” means these Customer Terms of Service and all materials referred or linked to in here.
“Billable Users” means those types of Users (defined below) for which we charge you fees as set forth on your Order Form.
“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Order Term. For example, if you subscribe to the Subscription Service for a one (1) year Order Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Communication Services” means third-party forums, online communities, blogs, personal webpages, calendars, and/or other social media communication facilities (such as Google, Microsoft, Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s personal network, communications, contacts, business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Contact” means a single customer, prospect, lead, or other individual (other than a User) whose Contact Information is stored in the Subscription Service.
“Contact Information” means the name, email address, phone number, online username(s), telephone number, or similar information submitted by Users on the Subscription Service or uploaded by you to the Subscription Service.
“Consulting Services” means the professional services provided to you by us, which may include customization, training services, installation, integration, or other consulting services.
“Crowdsourced Data” means the information you submit to us to update the data in certain properties in databases. Crowdsourced Data will not be considered Customer Data or Confidential Information for purposes of this Agreement.
“Customer Data” means all information that you submit or collect via the Subscription Service, including your personal data and the personal data of others. Customer Data does not include Shared Data or Enrichment Data.
“Customer Materials” means all materials that you provide or post, upload, input, or submit for either public or restricted display through the Subscription Service.
“Enrichment Data” means the data we make available to you as part of the Subscription Service and Crowdsourced Data. Enrichment Data also includes information about Users, such as social media handles, avatars, and alternate email addresses, that we obtain from public or third-party sources.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“Nactivate Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
“Nactivate Portal” means the application hosted at https://app.nactivate.com or other designated URL via which our web-based application Subscription Service may be accessed.
“Order” or “Order Form” means the Nactivate-approved form or online subscription process by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services. The Order may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
“Order Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Order Term will be the period during which you have an account to access the Free Services.
“Pricing Page” means http://www.nactivate.com/pricing.
“Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers, or similar personal identifiers, physical or mental health condition or information, or other financial, or health information.
“Shared Data” means all information that you submit via the Subscription Service using features specifically designed to share information, such as your profile, group posts, messages, etc. Information and content that you share or post may be seen by other Users, visitors or others (including those who do not have Subscription Services). Shared Data does not include Customer Data or Enrichment Data.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Services” means all of our web-based applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via the Nactivate Portal, and any ancillary products and services, including website hosting, that we provide to you, including Free Services.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.
“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
“Tiered Offerings” means our Networker, Connector, Superconductor, and Enterprise tiers of our paid Subscription Services.
“Users” means you, your employees, representatives, consultants, contractors, or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“we”, “us”, “our” or “Nactivate” means Nactivate, LLC and our affiliates.
“you”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
- GENERAL COMMERCIAL TERMS.
2.1. Access. During the Order Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your Nactivate Portal. We might provide some or all elements of the Subscription Service through third-party service providers.
2.2. Additional Features. You may subscribe to additional applications or features of the Subscription Service by placing an additional Order or activating the additional features from within your Nactivate Portal (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Nactivate Portal.
2.3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
2.4. Consulting Services. You may purchase Consulting Services by placing an Order for Consulting Services with us. Unless we otherwise agree, the Consulting Services we provide will be defined in a Statement of Work and governed under this Agreement. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (15) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description (the “Expiration Date”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Start Date”). If there is no Expiration Date indicated, then it will be one hundred and eighty (180) days from the Start Date. If the Consulting Services provided are not complete at the Expiration Date due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the Expiration Date. If the Consulting Services provided are not complete at the Expiration Date due to our failure to make the necessary resources available to you or to perform our obligations, the Expiration Date will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
2.5. Fees and Payments.
2.5.1. Subscription Fee. The Subscription Fee will remain fixed during the Order Term unless you: (i) exceed your maximum Users, storage, or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, or (iii) subscribe to additional applications, features, or products.
For our Products, once increased, your Subscription Fee will not decrease during the Order Term, even if there is a subsequent reduction in the number of Users or storage, or other applicable limits. We will monitor or audit remotely the number of Users in the Subscription Service.
For our products that have applicable User limits, you will be charged fees associated with all Billable Users.
2.5.2. Payment by Credit Card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees and taxes payable during the Order Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
2.5.3. Payment Against Invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Order Term and each subsequent Billing Period, and other times during the Order Term when fees are payable. All amounts invoiced are due and payable within thirty (15) days from the date of the invoice, unless otherwise specified in the Order Form.
2.5.4. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
2.5.5. Overdue Payment. If you are thirty (30) days or more overdue with respect to any payments, in addition to any of its other rights or remedies, we may notify you in writing and you will have ten (10) business days to cure the delinquent payment(s). In the event you do not cure the delinquent payment(s), we may suspend the Subscription Service and any Consulting Services without liability to you until such delinquent payment(s) are paid in full.
2.6. Use and Limitations of Use.
2.6.1. Authorized Use. To use the Subscription Services, you agree that: (1) you are not younger than the Minimum Age (defined below); (2) you will only have one Nactivate account, which must be in your real name; and (3) you are not already restricted by Nactivate from using the Subscription Services. Creating an account with false information or on behalf of others or persons under the age of 16 are violations of this Agreement.
“Minimum Age” means 16 years old. However, if law requires that you must be older in order for Nactivate to lawfully provide the Subscription Services to you without parental consent (including using of your personal data) then the Minimum Age is such older age.
2.6.2. Users are Account Holders. You agree to: (1) use a strong password and keep it confidential; and (2) comply with applicable laws, this Agreement and all Nactivate policies while using the Subscription Services. You are responsible for anything that happens through your account unless you close it or report misuse.
As between you and others (including your employer), your account belongs to you. However, if the Subscription Services were purchased by another party for you to use (e.g., Subscription bought by your employer), the party paying for such Subscription Service has the right to control access to and get reports on your use of such paid Subscription Service; however, they do not have rights to your Customer Data or personal account. Upon termination of an Order by another party, you may personally reactivate your Subscription Service to maintain access to the Subscription Service.
2.6.3. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Services; (iii) attempt to gain unauthorized access to the Subscription Services; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with any industry-specific regulations, including but not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), and the Federal Information Security Management Act (FISMA). You may not use the Subscription Services where your use or communications would be subject to such regulations. You agree not to use data from the Subscription Services in legal proceedings or otherwise as evidence.
You will notify us right away of any unauthorized use of your Users identification or password or your account by sending an email to firstname.lastname@example.org.
2.6.6. Third-Party Sites and Products. Third-party sites and products are not under our control. They are provided to you only as a convenience, and the availability of any such third-party site or product does not mean we endorse, support or warrant it.
2.7. Order Term, Termination, Suspension
2.7.1. Term and Renewal. Your initial Order Term will be specified in your Order, and your subscription will automatically renew for the shorter of the Order Term, or one year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in Section 3.1. If you add products during the Order Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your invoice or Order.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in Section 2.5. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your Free Services are terminated or (b) the start date of your paid Subscription Services.
See the Section 3.2 below for the applicability of product limits on renewal.
2.7.2. No Early Termination; No Refunds. The Order Term will end on the expiration date specified on the Order Form and the Subscription Services. We do not provide refunds if you decide to stop using the Subscription Services before expiration of your Order Term or if the Subscription Services are terminated or suspended for any reason except as set forth in Section 2.7.8.
2.7.3. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Order Term.
2.7.4. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading Sensitive Information or material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
2.7.5. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
2.7.6. Suspension for Present Harm. If your use of the Subscription Services: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Services or others, (iv) is consuming excessive bandwidth or storage, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Services. We will try to limit the suspension to the affected portion of the Subscription Services and promptly resolve the issues causing the suspension of the Subscription Services. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
2.7.7. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
2.7.8. Effect of Termination or Expiration. If your paid Subscription Services are terminated or expires, we may choose to continue to make available to you our Free Services, and you will continue to be subject to this Agreement for as long as you have access to the Nactivate Portal.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Services, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in Section 3.6. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid Subscription Fees due through the end of the Order Term. Subscription Fees are otherwise non-refundable.
- SUBSCRIPTION TYPE TERMS.
3.1. Subscription Types. We offer two main types of Subscription Services: (1) Subscription Services that are paid which consists of our Tiered Offerings and (2) Free Services. There are different terms that apply depending on the Subscription Services to which you subscribe.
3.2. Limits. The limits that apply to you will be specified in your Order Form, Pricing Page, or this Agreement and for our Free Services, these limits may also be designated only from within the product itself.
For our Tiered Offerings, if we make modifications to the limits that would negatively impact you, these modifications will not apply to you until the start of your next renewal Order Term. Upon renewal, the current product usage limits will apply to your Subscription Services, unless you and we otherwise agree.
For our Free Services, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a Subscription Fee.
3.3. Modifications. We modify the Subscription Services from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
3.4. Customer Support. For our Networker, Connector and Superconductor Tiered Offerings, email and chat support are included in your Subscription Fee. For Enterprise Tiered Offerings, email, chat and phone support is included. Phone support is available from 8am Central Time to 6pm US Central Time, Monday through Friday, with reduced hours during recognized United States holidays. We accept chat and email support questions 24 hours per day x 7 days per week. Questions and support requests can be submitted through the support page on nactivate.com or from within the Nactivate Portal. Responses are provided during phone support hours only. We attempt to respond to support questions within one business day. We do not promise or guarantee any specific response time.
3.5. Notice of Non-Renewal. Your Subscription Services will automatically renew according to Section 2.7.1.
Unless otherwise specified in your Order, to prevent renewal of your Subscription Services, you or we must either cancel your Subscription Services on the Nactivate Portal or give written notice of non-renewal. This notice must be received no less than sixty (60) days in advance of the end of the Order Term. If you decide not to renew, you may send the notice of non-renewal by email to email@example.com. To prevent continuation of the Order Term of Free Services, you or we may close your account.
3.6. Retrieval of Customer Data. For our Tiered Services, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Order Term, we will provide you with temporary access to the Subscription Services to retrieve your data. For data not accessible via the Subscription Services or for assistance downloading your data in bulk, Consulting Services may be purchased from us to provide such data in a mutually acceptable format. If we provide you with temporary access to the Nactivate Portal, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
- PRODUCT DISCLOSURES.
4.1. Customer Responsibilities. To realize the full value of the Subscription Services and Consulting Services, your participation and effort are needed. Resources that may be required from you include a project manager, an executive sponsor, and a technical resource (or equivalent) for Enterprise Subscription Services. Responsibilities that may be required include planning of setup and integration activities; acting as internal liaison between you and Nactivate; providing top level goals for the use of the Subscription Services; attending regular success review meetings; and supporting the integration of the Subscription Services with other technology systems.
4.2. Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Services (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
4.3. Free Trial. If you participate in a free trial, we will make the Free Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid Subscription Services. Unless you purchase paid Subscription Services before the end of the free trial of Free Services, all of your data in the Subscription Services may be permanently deleted at the end of the free trial, and we will not recover it. If we include additional terms and conditions on the free trial registration web page, invoice, or order form, those will apply as well.
- GENERAL LEGAL TERMS.
5.1. Customer Data.
5.1.2. Shared Data. Where we have made Shared Data settings available, we will honor the choices you make about who can see content or information (e.g., message content to your addressees, sharing content only your contacts, or restricting your profile visibility). We may monitor use of the Subscription Service by all of our Users and partners and use Shared Data for any purpose.
We are not obligated to publish any information or content on our Subscription Services and can remove it with or without notice.
5.1.3. Aggregate Data. We may monitor use of the Subscription Service by all of our Users and partners and use Customer Data gathered in an aggregate and anonymous manner. As part of maintaining or enhancing the Subscription Service, Nactivate is permitted to extract Depersonalized Data (as defined below) at any time before and after the expiration of the Order Term for any reason. “Depersonalized Data” means data that does not include a person’s name or other personally identifiable information without the person’s permission. You agree that we may use and publish Customer Data, including the Depersonalized Data, provided that such information does not identify you.
5.1.4. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
5.2. Nactivate’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. It is expressly agreed that any inventions, improvements, and modifications related to the Subscription Service, regardless of whether they are created in performance of Consulting Services under a Statement of Work, shall be considered the sole and exclusive property of Nactivate. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Nactivate Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at http://www.nactivate.com (which we may update at any time without notice to you) and you may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties without your permission. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
5.3. Proprietary Rights to Customer Data. You grant permission to us and our licensors to use the Customer Data only as necessary to provide the Subscription Service, Aggregate Data, and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.4. Proprietary Rights to Shared Data. As between you and Nactivate, you own the content and information that you submit or post to the Subscription Service, and you are only granting Nactivate and our affiliates a non-exclusive, worldwide, transferable and sublicensable license to use, copy, modify, distribute, publish and process, information and content that you provide through our Subscription Services and the services of others, without any further consent, notice and/or compensation to you or others. These rights are limited in the following ways:
5.4.1. You can end this license for shared content by deleting such content from the Subscription Services, or generally by closing your account, except (a) to the extent you shared it with others as part of the Subscription Service and they copied, re-shared it or stored it and (b) for the reasonable time it takes to remove from backup and other systems.
5.4.3. We will get your consent if we want to give others the right to publish your content beyond the Subscription Services. However, if you choose to share your post as “public”, we will enable a feature that allows other Users to embed that public post onto third-party services, and we enable search engines to make that public content findable though those services.
5.4.4. While we may edit and make format changes to your content (such as translating or transcribing it, modifying the size, layout or file type or removing metadata), we will not modify the meaning of your expression.
5.4.5. Because you own your content and information and we only have non-exclusive rights to it, you may choose to make it available to others, including under the terms of a Creative Commons license.
5.5. Confidentiality. The Receiver of Confidential Information will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors, and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena, or legal process.
5.6. Publicity. You grant us the right to add your name, company name, and company logo to our customer list and website.
5.7. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
5.8. Disclaimers; Limitations of Liability.
5.8.1. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, NACTIVATE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, NACTIVATE CONTENT, AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
5.8.2. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
5.8.3. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS ($100.00).
5.8.4. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
5.8.5. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
5.9. You will not individually, or in concert with or through any other person, without the prior written consent of Nactivate, solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf, any of our personnel during the Order Term. The foregoing restriction shall not apply to, or be breached by: (i) advertising open positions, participating in job fairs, and conducting comparable activities to recruit skilled or unskilled help from the general public, or responding to individuals contacted through such methods, (ii) responding to unsolicited inquiries about employment opportunities or possibilities from job placement agencies or other agents acting for unidentified principals, or (iii) responding to unsolicited inquiries about employment opportunities from any individual.
5.10.1. Amendment; No Waiver. We may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Order Term except as we explain in Section 2.5). If we update or change this Agreement, the updated version of this Agreement will be posted at https://www.nactivate.com/legal and we will let you know via email and/or the Subscription Services. Any updated version of this Agreement will become effective and binding on the next business day after it is posted and the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
If you do not agree with a modification to this Agreement, you must notify us in writing within ten (10) days after receiving notice of modification. If you give us this notice, your Subscription Services will continue to be governed by the terms and conditions of this Agreement in place prior to modification for the remainder of your current Order Term. Upon renewal, the then-current version of this Agreement published our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
5.10.2. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
5.10.3. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
5.10.4. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
5.10.5. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Services, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Services or Consulting Services to prohibited countries or individuals or permit use of the Subscription Services or Consulting Services by prohibited countries or individuals.
5.10.6. Severability. If any part of this Agreement, an Order Form, or a Statement of Work is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
5.10.7. Notices. Notices must be sent via certified mail to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Nactivate: 2201 Missouri Ave., St. Louis, MO 63104 U.S.A., Attention: General Counsel.
To you: your address as provided on the Order Form. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
5.10.9. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
5.10.10. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.10.11. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
5.10.12. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
5.10.13. Survival. The following sections shall survive the expiration or termination of this Agreement: Section 1, Section 2.5, Section 2.6.3, Section 2.7.2, Section 2.7.3, Section 2.7.4, Section 2.7.5, Section 2.7.6, Section 2.7.7, Section 2.7.8, Section 3.6, Section 4.2, Section 5.1.3, Section 5.2, Section 5.3, Section 5.4, Section 5.5, Section 5.6, Section 5.7, Section 5.8, and Section 5.10.
5.10.14. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
5.10.15. Governing Law. This Agreement will be governed by the laws of the State of Missouri and the United States of America, without regard to conflict of law principles. The prevailing party in any legal action to enforce or interpret this Agreement shall be entitled to recover reasonable attorney’s fees and costs.
EU 1. GDPR TERMS FOR CUSTOMERS IN EUROPE
EU 1.1 Effective Date and Definitions.
These additional terms will apply to you from January 1, 2021, where you are a Customer of Nactivate and are operating as a “data controller” (as that term is defined in the GDPR) in your use of the Subscription Service.
The terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR.
EU 1.2 Processing Instruction.
EU 1.3 Customer Obligations.
You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to Nactivate so that Nactivate may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by Nactivate in the provision of the Subscription Service.
EU 1.4 Nactivate Obligations.
Where Nactivate is processing personal data on your behalf, it will:
(b) ensure that all Nactivate personnel involved in the processing of personal data have committed themselves to confidentiality;
(c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by Nactivate and is not otherwise available to you through your account and user areas or on Nactivate websites, provided that you provide Nactivate with at least 14 days’ written notice of such an information request;
(d) promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Subscription Service;
(e) upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 9-12 months after data is deleted from an account); and
(f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Subscription Service.
EU 1.5 Nactivate sub-processors.
Nactivate may use trusted partners in facilitating certain elements of our Subscription Service (“sub-processors”). By agreeing to these Terms, you provide a general authorization to Nactivate to engage onward sub-processors, subject to compliance with the requirements set out here. If you wish to receive a list of sub-processors who handle personal data for Nactivate please submit your request to firstname.lastname@example.org. Upon completion of your request and entry of your details through our system, you will receive updates when we add any new sub-processors to this list and you will have 15 days to object to any additions to the list before the change is implemented by us. If you object to a particular sub-processor, who we cannot disassociate from your Subscription Service, your sole remedy will be to terminate your subscription relating to the Subscription Service that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.
EU 1.6 Liability.
Nactivate will be liable for the acts and omissions of its sub-processors to the same extent Nactivate would be liable if performing the services of each of those sub-processors directly under these Terms, except as otherwise set forth in these Terms and Nactivate ensures that all sub-processors on the sub-processor list are bound by contractual terms that are in all material respects no less onerous than those contained in these Terms.
EU 1.7 Security Measures.
Nactivate has, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of the Subscription Service and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data. At reasonable intervals, Nactivate tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.
EU 1.8 Security Incident.
If Nactivate becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data (“Security Incident”), Nactivate will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. Nactivate will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by Nactivate.
EU 1.9 Audits.
You will allow one month for Nactivate to respond to any audit request which you make. No person/party conducting an audit on your behalf (“Auditor”), shall be, or shall act on behalf of, a competitor of Nactivate. You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than one (1) audit in that same year (in which circumstances you and Nactivate will, in advance of any such audits, agree upon a reasonable reimbursement rate for Nactivate’s audit expenses). The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Subscription Service to vary this format for audit):
(a) Nactivate agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of Nactivate’s (or Nactivate affiliate’s) most recent penetration tests, which summary shall include remedial actions taken by Nactivate resulting from such penetration tests.
(b) The scope of the certifications and penetration tests provided will be limited to Nactivate systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Subscription Service obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by Nactivate.
(c) You will promptly notify and provide Nactivate with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.
The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights as against Nactivate.
EU 1.10 International Transfer.
To the extent applicable, Nactivate relies upon standard contractual clauses, for data transfer to the United States. Nactivate also relies on standard contractual clauses for data transfers to other third parties based in countries outside the European Economic Area, the United States, or countries that do not have adequate levels of data protection as determined by the European Commission. To the extent applicable, you appoint Nactivate as your agent for purposes of entering into any standard contractual clauses for such purposes on your behalf under these Terms.
EU 1.11 Liability for Data Processing.
The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section EU 1 shall be as set out in these terms, unless otherwise agreed in writing.