Last modified: January 11, 2023
2. ADDITIONAL AGREEMENTS
7. LIMITATION OF LIABILITY
8. MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS
9. ACCOUNT TERMINATION
By clicking “I Agree” in the Portal, Customer agrees to be bound by this Agreement, as may be amended by Nitra from time to time in accordance with Section 10.3 below, including the arbitration agreement set forth in Section 8 below, which You should read carefully since it will govern how Disputes between You and Nitra are resolved.
1.1 “Account” means the account established by You in connection with Your receipt of any products or services provided by Nitra.
1.2 “Affiliate” means with respect to a Party, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such Party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors, or similar parties responsible for the overall governance of the applicable Party.
1.3 “Confidential Information” means any written, machine-reproducible and/or visual materials that (i) are clearly labeled as proprietary or confidential, (ii) are identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, or (iii) which should reasonably be understood to be confidential given the nature and circumstances of its disclosure, provided that Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party, which independent development can be shown by written evidence.
1.4 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.5 “Party” means either Customer or Nitra, as applicable, and “Parties” means, collectively, Customer and Nitra.
1.6 “Personal Data” means information or documentation provided by the Customer to Nitra that identifies or could reasonably be used to identify an individual.
1.7 “Portal” means the unique portion of the Site applicable solely to Customer, accessed through the use of a username and password, and consisting of Customer-specific information.
1.8 “Program” means any program pursuant to which Nitra provides a Product.
1.9 “Site” means the Nitra website located at www.nitra.com.
2.1 Acceptable Use Policies. Customer shall use the Products exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others. Customer may not, and shall ensure that its employees and agents do not, use the Products in any manner that would violate the rights of any third party.
2.2 Illegal or Improper Use of Products. Nitra may immediately suspend or terminate Customer’s access to any and all Products, by written notice to Customer, in the event that (i) Nitra determines that Customer has breached this Agreement, (ii) Nitra determines on the basis of reasonable evidence that any Product is being used for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (iii) in the event that a governmental, legal, or other law enforcement authority so requires or instructs Nitra to terminate or suspend services to Customer. In the event Nitra suspects or anticipates such termination, Nitra will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) termination. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.
As between Nitra and Customer, the Programs, the Site, the Portal, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Nitra or its licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of any Program, the Site, and the Portal (the “Materials”) are protected by all relevant intellectual property and proprietary rights and applicable laws. Except as expressly authorized by Nitra, Customer may not make use of the Materials. Nitra reserves all rights to the Materials not expressly granted in this Agreement.
During the term and for a period of five (5) years after expiration or termination of this Agreement, neither Party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Neither Party shall disclose Confidential Information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (i) execute a binding agreement to keep such information confidential, or (ii) be subject to a professional obligation to maintain the confidentiality of such information. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide (to the extent permitted by applicable law) the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
6.1 THE PRODUCTS PROVIDED TO YOU PURSUANT TO THIS AGREEMENT ARE AS IS AND AS AVAILABLE. NITRA DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT OF PRODUCTS OR SERVICES. NOTHING IN THIS AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY TO YOU.
6.2 NITRA DISCLAIMS ALL WARRANTIES AND DOES NOT GUARANTEE THAT: (A) ANY PRODUCTS AND DATA PROVIDED UNDER THIS AGREEMENT OR THE APPLICABLE PROGRAM TERMS ARE ACCURATE OR ERROR-FREE; (B) THE PRODUCTS WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE PRODUCTS WILL BE USABLE BY CUSTOMER, ADMINISTRATORS, OR EMPLOYEES OR AGENTS AT ANY PARTICULAR TIME OR LOCATION; (E) THE PRODUCTS WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (F) ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED, EVEN WHEN WE ARE ADVISED OF SUCH DEFECTS.
6.3 NITRA IS NOT LIABLE FOR, AND DISCLAIMS LIABILITY FOR, ANY DAMAGES, HARM, OR LOSSES TO YOU ARISING FROM UNAUTHORIZED ACCESS OR USE OF YOUR ACCOUNT OR THE PRODUCTS OR YOUR FAILURE TO IMPLEMENT APPROPRIATE SECURITY PROCEDURES.
7.1 Nitra is not liable to You for consequential, indirect, special, exemplary, or punitive damages, lost profits, or lost revenue arising from or related to Your use of or inability to use Your Account or the Products, lost profits or reputational harm, physical injury or property damage, or any other losses or harm arising from or related to this Agreement, whether or not we were advised of their possibility by You or third parties.
7.2 Nitra’s maximum liability to You under this Agreement is limited to the greater of the total amount of fees actually paid by You to Nitra in the three months preceding the event that is the basis of Your claim or $10,000. This limitation applies regardless of the legal theory on which Your claim is based.
8.1 PLEASE READ THIS SECTION 8 CAREFULLY. IT EXPLAINS THE TERMS UPON WHICH CUSTOMER IS WAIVING ITS RIGHT TO BRING CLAIMS ARISING UNDER THIS AGREEMENT IN A COURT OF LAW OR TO HAVE A JURY RESOLVE ANY DISPUTES HEREUNDER. Except if other applicable laws require otherwise, the Parties hereto agree and understand that any dispute or claim related to Customer’s, or any employee of Customer’s, use of the Account or any Products, any disputes regarding any alleged breach of the Agreement, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce the terms of this Agreement or for the breach of this Agreement, shall be referred to final and binding arbitration, and not in court.
8.2 The Federal Arbitration Act and federal arbitration law apply to this agreement.
8.3 Any arbitration proceeding will take place in the State of Delaware, subject to the laws of the State of Delaware and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the Parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The Parties in any arbitration to enforce this Agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each Party shall pay its own attorney’s fees. Within fourteen (14) days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
8.4 The Parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited and in no event will a claim for class relief (or for injunctive relief extending beyond Your own individual alleged injuries or to prevent future harm to You alone) be arbitrated. If for any reason a claim proceeds in court rather than in arbitration, each Party waives any right to a jury trial. The Parties also agree that Customer and Nitra may bring suit in court to enjoin infringement or other misuse of Intellectual Property Rights.
8.5 If any portion of this Section 8 cannot be enforced, the unenforceable portion will be severed and the rest of this Section 8 will continue to apply. However, if (i) it is determined that the class action waiver contained in this Section 8 cannot be enforced, or (ii) the arbitrators (contrary to this Agreement) purport to decide a dispute on a class or other representative basis, or to award injunctive relief that extends beyond that necessary to remedy Your own individual alleged injuries or to prevent future harm to You alone, then this entire Section 8 (excluding this sentence) shall be deemed invalid and unenforceable.
Nitra may terminate or suspend Your Account or Your right to use any Product from time to time. If Nitra does any of these, You must still pay Nitra for all amounts owed under this Agreement and any Program. Nitra may do any of these things at its discretion, even if You pay on time and You are not in default or breach of this Agreement, including any terms governing a Product.
10.1 Governing Law. Subject to Section 8, this Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of law provisions.
10.2 Waiver. No waiver by either Party of any default or breach of this Agreement shall be valid unless set forth in writing by such waiving Party. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
10.3 Amendments. This Agreement may be amended by Nitra from time to time, by posting the amended Agreement on the Site, and any such amendments to the Agreement shall be effective as of the effective date set forth on the amended Agreement. Customer’s continued use of the Account, or any Product, following such effective date shall constitute Customer’s acceptance of such amended Agreement.
10.4 Notices. Any notices provided by Nitra under this Agreement will be given: (i) via email at the email address provided by Customer in the Portal, or (ii) by posting to the Portal. Any notices provided by Customer under this Agreement will be given at the following address: Attn: General Counsel, 35 Hudson Yards, Suite 6203, New York, NY 10001.
10.5 Severability. Subject to Section 8, if any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
10.6 Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
10.7 Compliance with Laws. Each Party agrees to comply with all applicable laws with respect to its activities hereunder.
10.8 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or attorney-client relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. For the avoidance of doubt, Nitra shall not be deemed to be representing Customer in any legal capacity.
10.9 Assignment/Successors. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s prior written consent, except to its Affiliate or as the result of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. Subject to the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns. To the extent that Customer is the assigning Party, such assignment is conditioned on the assignee providing all information and documentation reasonably requested by Nitra.
10.10 Feedback. Nitra has not agreed to, and does not agree to, treat as confidential any suggestions, ideas, comments, or questions about the Agreement, the Account, or any Program (“Feedback”) submitted by Customer or its employees or agents. Nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Nitra’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Customer shall have no Intellectual Property Right in any Program as a result of Nitra’s incorporation of Feedback into such Program.
10.11 Changes. Nitra reserves the right, without materially affecting the functionality of any Program: (i) to discontinue, impose limits on, or restrict access to any aspect of any Program at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or content, or (ii) to edit or delete any documents, information, or other content appearing in any Program.
10.12 Entire Agreement. This Agreement, together with the exhibits and schedules hereto, and any terms related to any Product that are incorporated herein, constitute the complete and exclusive agreement between the Parties concerning its subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
10.13 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
10.14 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the Parties may enforce this Agreement.