Noctis Terms and Conditions
Last updated 10/20/2023
ANALYTIC INDEX AMAZON MARKETING CLOUD SERVICES TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Analytic Index, LLC whose principal place of business is 9505 Willow Trail Way, South Jordan, UT 84095 (“Provider”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Provider’s provision of the Services (as defined below in Section 1.5) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
- DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
- “Customer Data” means data in electronic form input or collected through the Services or as otherwise provided by or from Customer, including without limitation by Customer’s Users.
- “Documentation” means Provider’s standard manual related to use of the Services, including without limitation, FAQs.
- “Order” means an order for access to the Services, whether online or offline, which shall be incorporated herein by reference. For the avoidance of doubt, the Order must be a document provided by Provider or a document that is agreed to by Provider in writing.
- “Questions” means the questions that Customer has access to through the Services.
- “Services” means Provider’s Noctis browser extension or other platform and related Questions that are provided by Provider.
- “Subscription Plan” means the subscription level that Customer subscribes to through the Services, the details for which shall be set out in each Order.
- “Term” is defined in Section 11.1 below.
- “User” means any individual who uses the Services on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- THE SERVICES.
- Use of the Services. During the Term, Customer may access and use the Services pursuant to the terms of any outstanding Order, including such features and functions as the Order requires. The Order will specify the Subscription Plan that Customer subscribes to, if any.
- Subscription Fees. Customer shall pay Provider the fee set forth in each Order (the “Subscription Fee”) for each Term for access to the Questions. Payment is due prior to the start of the subscription term, as further specified in the Order. Provider will not be required to refund the Subscription Fee under any circumstances.
- Taxes. Amounts due under this Agreement are payable to Provider without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Provider the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Provider’s net income.
- Auto Renewal. The payment method that Customer provides when signing up for a subscription plan will automatically be charged the current Subscription Fee either monthly, quarterly, biannually or annually (depending on Customer’s subscription), unless Customer cancels before the next billing cycle. If Customer wishes to cancel Customer’s subscription, Customer may do so by logging into their account and following the cancelation instructions at least one day before the next billing cycle. UNLESS CUSTOMER NOTIFIES PROVIDER BEFORE A CHARGE THAT CUSTOMER WANTS TO CANCEL OR DOES NOT WANT TO AUTO RENEW, CUSTOMER ACKNOWLEDGES THAT THEIR SUBSCRIPTION WILL AUTOMATICALLY CONTINUE AND CUSTOMER AUTHORIZES PROVIDER (WITHOUT NOTICE TO CUSTOMER, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE SUBSCRIPTION FEE AND ANY TAXES, USING ANY PAYMENT METHOD PROVIDER HAS ON RECORD FOR CUSTOMER.
- CUSTOMER DATA
- Use of Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights embodied therein, subject to the rights and permissions granted in this Section 4.1. Customer hereby grants to Provider a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable and transferable license to (a) use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the Customer Data in connection with the Services and (b) otherwise access, use or make reference to any intellectual property rights in the Customer Data: (i) to provide the Services including to enable the Customer and any Users to access and use the Services; (ii) for diagnostic purposes; (iii) to make any changes or improvements to the Services, including as set forth in Section 7.2, whether requested by the Customer or not; (iv) to develop other Services; and (v) as reasonably required for the performance of Provider’s obligations under this Agreement.
- Data Accuracy. Provider will have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Customer Data and any other data uploaded by Users.
- Data Deletion. Provider may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
- Acceptable Use. Customer shall not: (a) provide personal information when submitting Customer Data to Provider, unless otherwise agreed to by the parties; (b) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (c) provide Services passwords or other log-in information to any third party; (d) share non-public Services features or content with any third party; (e) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; or (f) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Provider may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as Provider may have. This Agreement does not require that Provider take any action against Customer or any User or other third party for violating this Section 5.1 or this Agreement, but Provider is free to take any such action it sees fit.
- Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
- Compliance with Laws. In its use of the Services, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
- Users & Services Access. Customer is responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Services through Customer’s account, whether authorized or unauthorized.
- IP & FEEDBACK
- IP Rights to the Services. Provider retains all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services. This Agreement does not grant Customer any intellectual property license or rights in or to the Services or any of their components. Customer recognizes that the Services and their components are protected by copyright and other laws.
- Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Provider, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Section 7 below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.)
- CONFIDENTIAL INFORMATION.
“Confidential Information” refers to the following items Provider discloses to Customer: (a) any document Provider marks “Confidential”; (b) any information Provider orally designates as “Confidential” at the time of disclosure; (c) the Documentation whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Provider’s valuable trade secrets.
- Nondisclosure. Customer shall not use Confidential Information for any purpose other than its internal business purposes (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of Section 7; and (b) shall not disclose Confidential Information to any other third party without Provider’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Provider of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Provider prompt notice of any such legal or governmental demand and reasonably cooperate with Provider in any effort to seek a protective order or otherwise to contest such required disclosure, at Provider’s expense.
- Injunction. Customer agrees that breach of Section 7 would cause Provider irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Provider will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate 3 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Provider’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Provider or certify, in writing, the destruction thereof.
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Provider will retain all right, title, and interest in and to all Confidential Information.
- REPRESENTATIONS & WARRANTIES.
- From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
- Warranty Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. PROVIDER DOES NOT WARRANT THAT THE SERVICES AND ANY QUESTIONS GENERATED USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; THAT THE INFORMATION AND QUESTIONS PROVIDED THROUGH THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS OR OTHER COSTS, RESULTING FROM CUSTOMER’S USE OF THE INFORMATION, QUESTIONS, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE, QUESTIONS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM PROVIDER OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.
Customer shall defend, indemnify, and hold harmless Provider and the Provider Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Services through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Services through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Provider’s negligence. Customer’s obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Provider Associates” are Provider’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY
- Dollar Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE 12 MONTHS PRECEDING THE CLAIM.
- Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. For the avoidance of doubt, Provider’s liability limits and other rights set forth in this Section 10 apply likewise to Provider’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
- Term & Termination
- Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one month from the Effective Date. Thereafter, the Term will renew for successive one month periods, unless either party cancels the subscription before the renewal date.
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Services and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- Notices. Provider may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Analytic Index, LLC, 25200 Telegraph Rd, 5th floor, Southfield, MI 48033, Attention: General Counsel, and such notices will be deemed received 72 hours after they are sent.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Michigan, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Oakland County, Michigan. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
- Technology Export. Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo and shall not provide access to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.