THIS SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE SERVICE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. 

BY ACCEPTING THIS AGREEMENT, BY (A) CLICKING A BOX INDICATING ACCEPTANCE, OR (B) EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. 

If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to the terms of this Agreement, in which case the term “Customer” will refer to such entity. If the individual accepting this Agreement does not have such authority, or does not agree with the terms of this Agreement, such individual must not accept this Agreement and may not use the Service. 

This Agreement was last updated on September 23, 2021. It is effective between Customer and Nira as of the date of Customer’s accepting this Agreement (the “Effective Date”). 

1. DEFINITIONS.

 “Affiliate” means with respect to a Party, any entity that currently or in the future controls, is controlled by or is under common control with such Party for so long as such control exists, where “control” means ownership of more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of directors or other managing authority of such Party.

“Agreement” means this Subscription Agreement.

“Applicable Law” means all laws, rules, regulations and other proclamations having the effect of law anywhere throughout the world that are applicable to any activity carried out or proposed to be carried out by a Party under this Agreement.

“Authorized User” means any user: (a) who Customer authorizes to access the Service on its behalf; (b) for whom a subscription to the Service has been purchased under an Order; and (c) who has been supplied access credentials to the Service by Customer (or by Nira, at Customer’s request).

“Content” means information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service.

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.

“Customer Materials” means all documents, files, materials, data and other information that Customer transmits to the Service through the functionality available on the web-accessible user interface of the Service, but in all cases excluding Nira Data and Nira Developed IP.

“Documentation” means any documentation that Nira makes available to Customer that describes the features or requirements of the Service.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Nira” means Nira, Inc.

“Nira Data” means any: (a) data, information or other routines generated by or on behalf of Nira through any automated data analysis, processing or other operations or use of the Service; and (b) aggregated and de-identified data generated or collected by or on behalf of Nira in connection with the Service, including any such data based on or derived from the Customer Materials.

“Nira Developed IP” means any and all technology in any form or medium, including software and other works of authorship, data, databases, and collections of data, inventions (whether or not patentable) or discoveries, trade secrets and confidential information, and any processes, know-how or techniques, in each case, that is conceived, developed or reduced to practice in connection with the Service by or on behalf of Nira, including Content.

“Nira Materials” means the Service, Documentation and the Nira Developed IP.

“Service” means Nira’s proprietary software-as-a-service software platform, accessible to Customer and Authorized Users via the subdomain set forth in an Order, and all services, features, tools, applications and Content available thereon.

“Order” means a mutually executed order form referencing and incorporating the terms of this Agreement.

“Party” means Nira or Customer individually, and “Parties” means Nira and Customer collectively.

“Subscription Term” means the subscription term for the Service set forth in an Order.

“Visualizations” means 3D production assets rendered by the Service from Customer Materials.

2. NIRA RESPONSIBILITIES

2.1. Provision of Service. Nira will (a) make the Service available to Customer pursuant to this Agreement, and the applicable Orders and Documentation; and (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Nira will give advance electronic notice) and emergency maintenance, and (ii) any unavailability caused by circumstances beyond Nira’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, pandemic, epidemic, civil unrest, act of terror, strike or other labor problem (other than one involving Nira employees), Internet service provider failure or delay, third party application, or denial of service attack.

3. USE OF SERVICE AND VISUALIZATIONS

3.1. Subscriptions. Access to the Service is purchased as a subscription for the term stated in the applicable Order for the number of Authorized Users set forth therein (the “User Cap”). Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Nira regarding future functionality or features.

3.2. User Cap. Customer recognizes that excess usage beyond the User Cap will result in additional fees charged by Nira. Customer and Nira agree to cooperate in good faith to review Customer’s use of the Service and Customer will promptly pay any additional fees charged in connection with such excess usage. Customer will promptly notify Nira in the event that Customer undergoes any changes that could lead to a material increase in its use of the Service (including as a result of any merger, acquisition or similar event affecting Customer).

3.3. Access to the Service. Customer has the non-transferable, non-sublicensable right during the applicable Subscription Term to: (a) access and use the Service; and (b) share links to public-facing portions of the Service on Third Party Services (as defined in Section 3.8) to allow third parties to view Visualizations, in each case ,subject to the terms of this Agreement and the applicable Order.

3.4. Customer Responsibilities. Customer is solely responsible for: (a) the accuracy, quality and legality of the Customer Materials, the means by which Customer acquired the Customer Materials, and Customer’s use of the Customer Materials with the Service; (b) identifying and authenticating all Authorized Users, and approving access by such Authorized Users to the Nira Materials; (c) protecting against unauthorized access to or use of the Service; and (d) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Nira is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Nira Materials but who were able to gain access for any reason. Customer will notify Nira immediately of any actual or suspected breach of this Agreement by any Authorized User. Any breach of this Agreement by any Authorized User is deemed a breach by Customer.

3.5. Usage Restrictions. Customer may not, directly or indirectly, and may not permit any third party (including any Authorized User) to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Nira Materials, or reconstruct, or discover, any hidden or non-public elements of the Nira Materials (except to the extent expressly permitted by Applicable Law notwithstanding this restriction); (b) translate, adapt, or modify the Nira Materials; (c) write or develop any program based upon the Nira Materials, or, to the fullest extent permitted by Applicable Law, otherwise use any portion of the Nira Materials in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Nira Materials; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Nira Materials; (e) use any portion of the Nira Materials except as expressly permitted by the terms of this Agreement and the applicable Order; (f) permit any portion of the Nira Materials to be used by any persons other than Authorized Users; (g) alter or remove any trademarks or proprietary notices contained in or on the Nira Materials; (h) circumvent or otherwise interfere with any authentication or security measures of the Service, or otherwise interfere with or disrupt the integrity or performance thereof; (i) use any portion of the Nira Materials in violation of any Applicable Laws; (j) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; or (k) transmit to the Service any Malicious Code or unlawful, infringing, harmful or other data or code, provided that if Customer knows or suspects that Customer or an Authorized User has so transmitted to the Service any such data or code or Malicious Code, then Customer will immediately provide Nira with written notice of the same and reasonable assistance to help enable Nira to identify and delete same from its systems. The Service may not be accessed for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

3.6. Removal of Customer Materials and Content. Subject to the terms of this Agreement, Customer Materials submitted to the Service will remain available to Customer and the Authorized Users through the Service for the duration of the applicable Subscription Term, unless removed or deleted earlier by an Authorized User or otherwise pursuant to the terms of this Agreement. If Customer receives notice that Customer Materials must be removed, modified and/or disabled to avoid violating Applicable Law or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Nira’s judgment continued violation is likely to reoccur, Nira may disable the applicable Customer Materials and/ or the Service. If requested by Nira, Customer will confirm such deletion and discontinuance of use in writing and Nira will be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Nira is required by any third party rights holder to remove Content, or receives information that Content may violate Applicable Law or third-party rights, Nira may discontinue Customer’s access to such Content through the Service.

3.7. Monitoring; Suspension. Nira may, but is under no obligation to, monitor Customer’s use of the Service. Nira may, in its reasonable discretion, suspend access to the Service (including the Visualizations) if Nira believes that: (a) Customer or any Authorized User is in breach of this Agreement; (b) use of the Nira Materials as contemplated in this Agreement poses a security risk; (c) the Nira Materials or Customer’s use thereof violates, misappropriates, or infringes the rights of Nira or a third party; (d) there is a bug or performance issue with the Nira Materials that adversely affects Nira’s servers or other systems; (e) Customer’s use of or sharing any portion of the Service imposes unexpected or excessive demands on Nira’s servers or other systems; or (f) any Applicable Law prohibits Nira from performing any of its obligations under this Agreement.

3.8. Third Party Services. The Service may permit Customer to share links to certain public-facing portions of the Service, solely for the purposes of posting Visualizations to other websites, services or resources on the Internet (“Third Party Services”). Customer acknowledges and agrees that Nira is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of Third Party Services, and the inclusion of any such functionality does not imply Nira’s endorsement or any association between Nira and the operators of the Third Party Services. Customer further acknowledges and agrees that Nira will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, functions, goods or services available on or through any Third Party Service.

4. FEES; PAYMENT

4.1. Fees. Customer will pay Nira all fees of the type and in the amounts set forth in the applicable Order (“Fees”). If Customer’s actual use of the Service exceeds the User Cap, then Customer must pay for the excess use as set forth in Section 3.2. All Fees are non-cancellable, non-refundable and non-recoupable.

4.2. Payment Terms. Unless otherwise set forth in the applicable Order, all Fees will be billed in advance, and all invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by Applicable Law.

4.3. Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Nira’s net income).

5. PROPRIETARY RIGHTS AND LICENSES

5.1. Ownership. As between the Parties: (a) subject to the limited rights and licenses expressly granted by Nira under this Agreement, Nira owns and retains all rights, title and interest in and to the Nira Materials and Nira Data, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other technology in any form in or to the Service (collectively, “Nira IP”), and Nira has the right to use and exploit all such Nira IP without restriction; and (b) subject to the limited rights and licenses expressly granted by Customer under this Agreement, Customer solely owns and retains all of Customer’s rights, title and interest in and to the Customer Materials and any Visualizations.

5.2. Reservation of Rights. All rights that a Party does not expressly grant to the other in this Agreement are hereby reserved and neither Party grants to the other any implied rights or licenses under any theory.

5.3. License to Content. Nira hereby grants to Customer during the applicable Subscription Term a non-exclusive, non-transferable, non-sublicensable license to allow its Authorized Users to access and use the Content solely for the purpose of using the Service in accordance with this the terms of this Agreement and the applicable Order.

5.4. License to Customer Materials. By submitting Customer Materials to the Service, Customer hereby grants to Nira a worldwide, non-exclusive, royalty-free, fully paid license to access, use, adapt, convert, transcode, reproduce, distribute, display, perform, transmit, store, and disclose the Customer Materials to produce Visualizations and otherwise as necessary to provide the Service or Customer-generated links. Customer represents that is has obtained all necessary rights, permissions and approvals to grant such license without infringement or violation of any third party rights, including any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and that it will comply with all Applicable Laws applicable in connection with this Agreement, including the exercise of its rights hereunder.

5.5. Feedback. Customer may elect to provide to Nira ideas, suggestions, or feedback related to any aspect of the Nira Materials (“Feedback”). Such Feedback will be non-confidential, and Customer hereby grants to Nira a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), royalty-free, and worldwide license to implement, use, modify, or otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution or other obligations to Customer.

5.6. Third Party Content. As part of the Services, Nira may provide Customer with access to text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material that are obtained or derived from third party sources (collectively, “Third Party Content”). The third party owner, author or provider of any such Third Party Content retains all ownership and intellectual property rights therein and thereto, and Customer’s rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider. All Third Party Content is provided on a “as is” and “as available” basis without any warranty of any kind. Company is not responsible for, and under no obligation to control, monitor, or correct Third Party Content, and may remove any Third Party Content in its discretion.

6. TERM AND TERMINATION

6.1. Term of Agreement. This Agreement will start on the date Customer first accepts it and continues until all subscriptions hereunder have expired or been terminated.

6.2. Term of Subscriptions. The term of each subscription will be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for successive one year periods unless either party provides notice of non-renewal at least 30 days prior to the expiration of the then-current Subscription Term.

6.3. Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement or such Order, where such material breach is not cured within 30 days after written notice of such breach from the non-breaching Party. For the avoidance of doubt: (a) by way of example only, Customer’s or an Authorized User’s noncompliance with Section 3.5 or 5.4 is deemed a material breach of this Agreement; (b) the expiration or termination of one Order will not impact the term of any other Orders then in-effect; and (c) any termination of this Agreement automatically will terminate all then-effective Orders.

6.4. Effect of Termination. Upon the effective date of expiration or termination of an Order for any reason: (a) Customer’s and all Authorized Users’ access to the subdomain set forth in such Order and all applicable Nira Materials (including access to Customer Materials on the Service) will automatically terminate; and (b) all outstanding payment obligations of Customer under such Order will become due and payable immediately. For the avoidance of doubt, if Customer does not remove or delete Customer Materials prior to such effective date of expiration or termination, then upon such date Nira will have no further obligation to store or permit retrieval of such Customer Materials and may remove and/or delete same in its discretion.

6.5. Survival. The following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive the termination or expiration of this Agreement: 3.5, 4, 5, 6.4, 6.5, 7, 9, 10, and 12.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. “Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that: (a) is designated as “confidential,” or in some other manner to indicate its confidential nature; or (b) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure and the nature of the information itself. However, Confidential Information does not include any data made available by or on behalf of Customer in connection with use of the Service or any information which: (i) is or becomes generally known and available to the public through no act or omission of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure, as shown by the Recipient’s contemporaneous records; (iii) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser and without any use of or reference to the Discloser’s Confidential Information.

7.2. Obligations. The Recipient will use the same efforts to protect the Discloser’s Confidential Information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts. The Recipient may only use the Discloser’s Confidential Information to perform its obligations and exercise its rights under this Agreement. The Recipient will not disclose or provide access to the Discloser’s Confidential Information to any third party except: (a) for disclosures to the Recipient’s: (i) employees with a need to know such information to perform its obligations under the Agreement and to subcontractors permitted under Section 12.4; or (ii) professional advisors or potential investors or acquirers (each in (i) and (ii), a “Permitted Recipient”); and (b) the Recipient may disclose the Discloser’s Confidential Information if it is compelled by Applicable Law to do so; provided the Recipient gives the Discloser prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure. The Recipient will promptly inform the Discloser in writing of any actual or suspected loss or alteration of, or unauthorized access to, use or disclosure of, Confidential Information. The Recipient will be liable for any breach of this Agreement by its Permitted Recipients.

8. REPRESENTATIONS AND WARRANTIES

8.1. Mutual. Each Party represents and warrants to the other Party: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under this Agreement; (c) the execution of an Order by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when an Order has been executed by both Parties, this Agreement and such Order will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.2. By Customer. Customer further represents, warrants and covenants to Nira that Customer owns or otherwise has and will continue to have the necessary rights in and relating to the Customer Materials so that, as received by Nira and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any rights of any third party or violate any Applicable Laws.

9. INDEMNIFICATION

9.1. By Nira. Nira will: (a) defend, or, at its option, settle, any claim brought against Customer by a third party alleging that Customer’s use of the Service for which there is an active Subscription Term at the time of the claim constitutes a direct infringement of any intellectual property rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Nira; provided that Customer provides Nira: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Nira in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Nira may, at its sole option and expense: (1) procure for Customer the right to continue to use the infringing items; (2) modify the infringing items to make them non-infringing; (3) replace the infringing items with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate all Orders or this Agreement. Notwithstanding the foregoing in this Section 9.1, Nira will have no obligation hereunder (x) for any use of the Nira Materials in combination with software, products, services or technologies not provided by Nira, to the extent that the Service would not be infringing but for such combination; (y) arising from or in connection with Customer’s failure to use the Nira Materials in accordance with this Agreement; or (z) for any claims that fall within the scope of Section 9.3.

9.2. Disclaimer. SECTION 9.1 STATES THE ENTIRE LIABILITY OF NIRA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 9.1.

9.3. By Customer. Customer will defend, or, at its option, settle, any claim brought against Nira by a third party arising from or in connection with any Customer Materials or alleging that any Customer Materials and/or any use of the same in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any Applicable Laws; provided that Nira provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with, the defense or settlement of any such claim. Customer will pay all damages finally awarded against Nira (or the amount of any settlement Customer enters into) with respect to any such claim defended by Customer. Nira may appear in connection with such claims, at Customer’s expense, through counsel reasonably acceptable to Customer.

10. DISCLAIMERS; LIMITATION OF LIABILITY

10.1. Disclaimers. THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NIRA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. WITHOUT LIMITING THE FOREGOING, NIRA DOES NOT REPRESENT OR WARRANT THAT: (a) THE NIRA MATERIALS WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE NIRA MATERIALS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE OR WEB BROWSER; (c) ANY DATA PROVIDED BY OR THROUGH THE NIRA MATERIALS (INCLUDING ANY THIRD PARTY CONTENT) WILL BE ACCURATE OR COMPLETE; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER MATERIALS OR CUSTOMER’S DEVICES OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE NIRA MATERIALS.

10.2. Limitation of Liability. IN NO EVENT WILL NIRA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF NIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NIRA’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

11. TOOLS; ANALYSES

11.1. Nira may use tools, scripts, software, and utilities (“Tools”) to monitor and administer the Service and help resolve any service requests. Information collected by the Tools may also be used to assist in managing and improving Nira’s product and service portfolio, to help Nira address deficiencies in its product and service offerings, and for license and Service management.

11.2. Nira may audit Customer’s use of the Service to assess whether Customer’s use of the Service is in accordance with an Order and this Agreement. Customer agrees to cooperate fully with Nira’s audit and provide reasonable assistance and access to information. Any such audit will not unreasonably interfere with Customer’s normal business operations. Customer will pay within 30 days of written notification any fees applicable to Customer’s use of the Service in excess of its rights. If Customer does not pay, then Nira may terminate the Service and/or this Agreement. Nira will have no responsibility for any costs incurred by Customer in cooperating with the audit.

12. GENERAL PROVISIONS

12.1. Interpretation. Unless a clear contrary intention appears: (a) any term defined in the singular includes the plural when required by the applicable context; (b) the headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the interpretation of this Agreement; and (c) uses of “including” mean “including, without limitation.” Any ambiguity in this Agreement will be interpreted without regard to which Party drafted this Agreement or any part thereof.

12.2. Non-Solicitation. During the Subscription Term and for one (1) year thereafter, Customer will not, and will not assist any other Party to, directly or indirectly recruit or solicit, other than by general advertisement not directed specifically to any person or company, for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by Nira. In the event of a violation of this Section 12.2, Nira will be entitled to liquidated damages equal to the compensation paid by Nira to the applicable employee or contractor during the prior twelve (12) months.

12.3. Changes. Nira may make changes or updates to the Nira Materials during the Subscription Term, including to reflect changes in technology, industry practices and patterns of system use; however, any such changes will not result in a material reduction in the level of performance or availability of the Service during the Subscription Term.

12.4. Assignment; Subcontractors. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, except that Nira may assign this Agreement without the consent of Customer as part of a corporate reorganization, to any Nira Affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nira in its sole discretion may from time-to-time engage third parties to perform any of its obligations under this Agreement, including hosting or other services. Nira will be responsible for all such parties’ compliance with the applicable terms this Agreement.

12.5. Governing Law. If there is any dispute between the Parties arising out of this Agreement (each, a “Dispute”), then authorized representatives of each Party will negotiate in good faith to resolve the Dispute. If such representatives cannot resolve the Dispute after no less than 30 days of good faith negotiations, then either Party may pursue all available remedies exclusively in courts of competent jurisdiction in Los Angeles, California, and each Party waives all rights to challenge such venue on any theory. This Agreement will be governed by the laws of the State of California, excluding its conflicts of laws principles.

12.6. Publicity. Nira may use Customer’s name as a reference for marketing or promotional purposes on Nira’s website and in other communications with existing or potential Nira customers, investors or acquirers, subject to any written trademark policies Customer may provide Nira in writing, with reasonable advanced notice. Neither Party will issue any press release or publish any publicly available statements or documentation describing the activities taking place under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld.

12.7. Entire Agreement; Order of Precedence. All Orders are incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and any Order, the terms in this Agreement will prevail unless the Order expressly states otherwise. This Agreement, including all Orders, is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Nira to object to such terms.

12.8. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.9. Waivers. All waivers of rights arising under this Agreement must be made in writing by the Party waiving rights.

12.10. Notices. Any notice required or permitted under this Agreement will be effective if it is: (a) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address given in the Order, in the case of Customer, or as set forth below, in the case of Nira, and with the appropriate postage affixed; or (b) sent via electronic mail to the email address given in the Order, in the case of Customer, or as set forth below, in the case of Nira. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day an electronic mail is sent to the recipient. Notwithstanding the foregoing in this Section 12.10, any notices threatening litigation or alleging breach of this Agreement must be sent under method (a) in this Section.

12.11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

12.12. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from this Agreement; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by Applicable Law; and (c) this Agreement will remain in full force and effect.

Nira Contact Information:
NIRA, INC.
1001 Wilshire Boulevard #1180
Los Angeles, CA 90017
[email protected]

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