1. Services, Obligations and Warranties of Nuvi, LLC (“Nuvi”).
Nuvi has created a proprietary software platform for social media listening, researching, publishing, data analytics, data warehousing, and reporting (the “Services”). Subject to the Sales Order entered between Customer and Nuvi, and these terms and conditions incorporated therein, Nuvi hereby grants Customer a limited, non-exclusive, non-transferable, revocable license for any employee, contractor, agent, client, or affiliate that (i) agrees to be bound by the terms and conditions herein and (ii) is specified to Nuvi in writing (“Authorized Users”) to access the Services indicated in the Sales Order during the Term. Nuvi agrees to use commercially reasonable efforts to ensure reasonable response times for Customer and its Authorized Users to access the Services ninety-eight (98%) of the time, subject to scheduled downtime and interruptions of service that are beyond the control of Nuvi. Nuvi represents and warrants that it has all rights necessary to deliver the Services.
2. Ownership & Use.
The Services and all associated intellectual property rights are the sole property of Nuvi and its licensors and suppliers, and no property rights therein are granted to Customer or any Authorized User. Customer acknowledges that Nuvi has limited rights in and does not convey any rights to any text, music, data, graphics, photos, video, commentary and other similar content, including metadata, user and demographic information associated with such content, uploaded, posted or appearing on any internet site that is obtained by Nuvi (together, “Source Content”). Customer may only use Source Content in connection with its use of the Services and Customer agrees to be bound by the terms of service of each site providing Source Content, including the Twitter terms of service located at http://twitter.com/tos. Customer shall be solely responsible for the manner in which it uses or displays Source Content or any additional information, data, or Nuvi work product prepared, gathered, organized or displayed through the Services (“Platform Content”) and agrees not to use Source Content or Platform Content in a manner that (i) exceeds the rights licensed hereunder by Nuvi, (ii) infringes or violates any right of any third party, or (iii) is offensive, harmful, inaccurate or deceptive. The provision of Source Content is subject to availability from third party providers and Nuvi shall have no liability should such Source Content become unavailable for any reason. Nuvi MAKES NO OTHER WARRANTY WITH RESPECT TO ANY SOURCE CONTENT. SOURCE CONTENT IS MADE AVAILABLE BY Nuvi ON AN "AS IS, AS AVAILABLE" BASIS.
3. Content & Data.
All Platform Content is owned by Nuvi and licensed herein as part of the Services. If Customer elects to upload Customer data or information on the Nuvi Service (“Customer Data”), Customer warrants it owns or has the necessary rights or permissions for use of Customer Data on the Nuvi Service, and that such use will not infringe or violate the privacy or ownership rights of any party. Nuvi disclaims ownership of any and all Customer Data and other data loaded to, created and/or entered in to the Platform by Customer, or that was supplied to Nuvi by Customer. Notwithstanding Customer’s ownership of Customer Data, at the end of the Term, Nuvi shall only be obligated to provide to Customer extractable Customer Data at no additional charge in a Nuvi supported format. Nuvi shall have the right to aggregate and retain non-personally identifiable data.
4. Customer Representations and Warranties.
5. Sales Orders.
“Sales Order” means the document(s), regardless of actual name, executed by the parties and incorporating these terms and conditions, describing order-specific information such as the Services ordered, Licensed Metrics (defined below), and associated fees. At any time after execution of an initial Sales Order, Customer may purchase additional Services by executing a new Sales Order accepted by Nuvi.
Charges for the Services will be determined as set forth on the Sales Order executed between the Parties corresponding to the Licensed Metrics purchased. “Licensed Metrics” mean the quantity of Mentions, reports or Index Capacity purchased by Customer under a Sales Order. “Mention” means a post, article, image, or instance containing one or more Customer-defined keywords or search terms that is captured and recorded by Nuvi through the Service and reported to Customer. “Index Capacity” means a defined period of time that Customer may access searchable Customer Mentions retained by Nuvi at Customer’s request.
7. Licensed Metrics.
Customer may not use the Services in excess of the Licensed Metrics specified in the Sales Order. Customer may purchase additional Licensed Metrics as provided in the Sales Order. Pricing is based on Customer’s commitment to the minimum number of Licensed Metrics purchased for the Term, regardless of actual use, and there shall be no fee adjustments or refunds for partial usage. Upon execution by Customer, the Sales Order is non-cancellable and non-refundable. Licensed Metrics expire at the end of the Term in which they are purchased.
Customer agrees that during the term of this Agreement and for a period of twenty-four (24) months from the date this Agreement is terminated by either party, Customer will not (a) directly or indirectly induce any Nuvi employee to terminate or adversely alter his or her relationship with Nuvi, or (b) induce any Customer, supplier, content provider, vendor, consultant or independent contractor of Nuvi to terminate or adversely alter his, her or its relationship with Nuvi.
9. Overdue Accounts.
Nuvi may charge a late fee on delinquent payments of one percent (1%) per month. Failure to timely pay undisputed invoices may cause interruption of Service. If Customer fails to make any payment within thirty (30) days after the due date, Nuvi reserves the right to suspend the Services to Customer, accelerate any amounts due hereunder, and terminate any Sales Orders.
Each Party agrees to be responsible for its own taxes applicable under any law. Customer will pay any sales or services taxes due hereunder.
11. Limited Warranty; Disclaimer of Warranties.
Except for the limited warranties set forth herein, THE SERVICES INCLUDING ANY BETA SERVICES MADE AVAILABLE TO CUSTOMER, ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, OR ACCURACY OF DATA. Nuvi DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM BUGS, ERRORS, OR OMISSIONS.
12. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Nuvi BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO A SALES ORDER OR THE SERVICES, EVEN IF Nuvi HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH BY Nuvi OF ITS LIMITED WARRANTY SHALL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE ANY SALES ORDERS. WITH THE EXCEPTION OF AMOUNTS ARISING OUT OF THE OBLIGATIONS IN SECTIONS 2, 4, 13 AND 16, TO THE MAXIMUM EXTENT PERMITTED BY LAW, A PARTY’S LIABILITY UNDER A SALES ORDER SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT OWED OR PAID BY CUSTOMER TO Nuvi IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
13. Mutual Indemnification.
Each party agrees to defend, indemnify and hold harmless the other party and its affiliates from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of such party’s violation of its obligations herein in or in any Sales Order, or the grossly negligent or willful acts of such party. Each party’s obligation to indemnity under this provision shall survive termination of the Sales Order.
A Sales Order is an agreement to purchase Nuvi Services, and becomes effective when signed by Customer (the “Effective Date”), regardless of Customer’s access to or use of the Services. The Initial Term is defined in the Sales Order. At the end of the Initial Term, the Sales Order will automatically renew for additional twelve month Terms unless either Party terminates the Sales Order in writing at least 30 days prior to the end of the Initial Term or any additional Term. Customer commits to the entire Term on the Sales Order, which Term is continuous and not divisible. Billing increments, if any, are for Customer convenience only, and do not modify the Term.
15. Entire Agreement; Amendment.
The Sales Order and these terms and conditions constitute the entire agreement between Nuvi and Customer with respect to the subject matter hereof. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
16. Governing Law.
Sales Orders are governed and construed under the laws of the State of Utah without regard to conflict of laws, provisions or the United Nations Convention on the International Sale of Goods. Any action or proceeding arising from or related to a Sales Order will be brought in the federal and state courts located in Utah, and each party irrevocable submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought by a party to enforce a sales order, the prevailing party will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
17. Assignment and Transfer; Delegation.
Nuvi may delegate any portion of its duties or obligations hereunder to any third party that it deems, in its sole discretion, qualified to perform such duties and obligations. Nuvi may assign this Sales Order to any party who acquires (by merger, acquisition or otherwise) all or substantially all of Nuvi’s intellectual property in or to the Nuvi Services.
A Sales Order may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.