1.1 “Agreement” means these Terms and Conditions and any Service Agreement referencing these Terms and Conditions. All such components are integral to the agreement between the parties and collectively are referred to herein and in each Service Agreement as the “Agreement.”
1.2 “Customer Content” shall mean any data, other information, text, images, photos, videos, other materials or other content provided or made available by Customer to Niche in connection with the Agreement.
1.4 “Niche Content” shall mean any data Customer may access in connection with the Services, including without limitation, the following: (i) data from public sources that Niche compiles, (ii) profile information, reviews and survey responses from users of the Website, (iii) Niche statistical and analytical data, and (iv) Niche data that provides rankings, grades, and profiles for various entities.
1.4 “Service Agreement” shall mean one or more agreements for services between the parties, which may be numbered, that reference(s) these Terms and Conditions.
1.5 “Services” shall mean the services described and provided by Niche to Customer under each Service Agreement.
1.6 “Terms and Conditions” means these terms and conditions which govern the relationship between the parties and Customer’s use of the Services set forth in each Service Agreement.
SERVICES. Subject to the Terms and Conditions contained herein, Customer hereby engages Niche to provide the Services set forth in the applicable Service Agreement. If any provisions of the Service Agreement conflict with the Terms and Conditions, the Terms and Conditions shall take precedence. The terms of a Service Agreement may not be changed without mutual written consent.
COMPENSATION. In consideration of the Services to be provided by Niche to Customer, Customer shall pay to Niche all fees, reimbursements and other amounts listed or described in the applicable Service Agreement (collectively, “Fees“). Customer shall pay all Fees within 30 days of the date of Niche’s invoice. In the event that Customer fails to pay any overdue payments within 20 days of receiving notice of the late payment, Customer shall be obligated to pay the cost of collections, including attorney fees. If applicable, Customer shall also be responsible for paying all applicable taxes with respect to the transactions contemplated by the Agreement, except taxes based on Niche’s net income. In addition to Niche’s termination rights hereunder, Niche may suspend its performance under this and any other agreement with Customer until any overdue amounts owed to Niche are paid in full.
CONFIDENTIALITY. Either party may disclose to the other party proprietary or confidential information (collectively, “Confidential Information“). Each party agrees to (a) use at least reasonable care to protect and maintain the confidentiality of Confidential Information; (b) limit disclosure of Confidential Information to authorized employees, agents and representatives who have a need to know, under similar confidentiality obligations; and (c) not copy or use Confidential Information except for purposes of performing or enforcing the Agreement. Except for any information pertaining to, or that can be used (either alone or combined with other information) to identify or locate, a specific person (“Personal Information“), the obligations in this Section shall not apply to any Confidential Information that was legally possessed prior to receipt from the source, was received in good faith from a third party not subject to a confidential obligation to the source, now is or later becomes publicly known through no breach of confidential obligation by the recipient, or was independently developed by the recipient without access to or use of Confidential Information. Each party acknowledges that its obligations not to disclose Personal Information, regardless of its source or status as Confidential Information, continues to apply through Niche’s and Customer’s respective privacy policies and any applicable industry standards, laws and regulations. Each party may disclose Confidential Information to the extent required by applicable law or government order.
5.1 IP Ownership. All right, title, and interest in and to Niche’s website located at www.niche.com (the “Website“), the Services, Niche Content, any related documentation or materials, and any trademarks or other proprietary indicia of Niche or any of its affiliates, including any versions or derivatives of, or any feedback related to, any of the foregoing, shall at all times remain the property of Niche, any use of the foregoing inures to the sole benefit of Niche. Niche reserves all rights not expressly granted to Customer under these Terms and Conditions or any Service Agreement. Customer hereby grants to Niche a perpetual, irrevocable, worldwide, royalty-free, non-exclusive right to use any data collected in connection with the Website or Services on an aggregate, de-identified basis for internal business purposes.
5.2 License. All right, title, and interest in and to Customer Content shall at all times remain the property of Customer. Customer hereby grants to Niche a transferable, sublicensable, royalty-free, worldwide license during the Term to (i) copy, modify, prepare derivative works of, and use the Customer Content in connection with the Website or performance of the Services; and (ii) disclose and otherwise provide access to the Customer Content to third parties as reasonably necessary for the provision of the Website or Services or as otherwise contemplated by these Terms and Conditions or any Service Agreement.
6.1 Niche Warranty. Niche warrants to Customer that the Services will be performed in a professional manner. Niche’s exclusive obligation with respect to this limited warranty is to re-perform any non-conforming Services or, at Niche’s sole option, to refund the applicable portion of the Fees for the non-conforming Services.
6.2 Customer Warranty. Customer warrants to Niche that (i) Customer has received all third party consents required for Niche to perform the Services; (ii) Customer will properly perform any obligations described in any applicable Service Agreement in accordance with all applicable laws and regulations, including without limitation, laws and regulations pertaining to students educational records and privacy, the incentive compensation of persons engaged in student recruiting activities by or on behalf of postsecondary educational institutions, and advertising, electronic communications, and solicitations; (iii) Customer has collected, compiled, provided and generated the Customer Content in compliance with all applicable laws, rules, regulations and privacy policies; (iv) Customer has all rights necessary to grant Niche the right to use and disclose the Customer Content in accordance with the Agreement; and (v) Customer will obtain and maintain all licenses or permits as are required to conduct the activities contemplated hereunder. Customer Content is at all times subject to Niche’s approval, and Niche may block, modify or remove any Customer Content without notice in the event of any actual or, in Niche’s reasonable opinion, reasonably likely breach of the Agreement, violation of applicable law or third party rights, or danger to any person or property. Customer shall promptly notify Niche in the event it receives notice of any investigation, inquiry, or proceeding concerning a possible violation of any law or regulation, or of any warranty, covenant or obligation of Customer hereunder, by or on behalf of Customer (including any subcontractor, agent, or third party which provides any services for Customer in connection with any Service Agreement).
6.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 6, NICHE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATED TO THE SERVICES OR THE WEBSITE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Niche disclaims any warranties that the Website will be uninterrupted or error-free and any warranties related to any usage or success of the Website.
LIMITATIONS ON USE OF NICHE CONTENT. Customer agrees that the Niche Content licensed to Customer in a Service Agreement, if any, or otherwise accessed by Customer will be used for the sole purpose of marketing efforts associated with Customer’s offerings to its customers. Customer will provide individuals with the ability to unsubscribe or opt-out of Customer advertising and outreach programs in accordance with industry practice and applicable law. Customer agrees to ensure that all Niche Content, and especially Personal Information, provided or made available by Niche will be held securely within Customer databases and any third-party lead management systems in accordance with each of Niche’s and Customer’s respective privacy policies and all applicable industry standards, laws and regulations. Customer may not resell, sublicense, distribute or otherwise provide access to any Niche Content to a third party.
INDEMNIFICATION; LIMITATIONS OF LIABILITY.
7.1 Indemnification. Niche shall indemnify, hold harmless and defend Customer from and against any claims, proceedings, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising from any actual or alleged infringement or violation of any third party intellectual property right based on the functionality of the Services or the Niche Content. Customer shall indemnify, hold harmless and defend Niche from and against any claims, proceedings, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising from (i) any actual or alleged infringement or violation of any third party intellectual property, privacy or other rights by any Customer Content, (ii) any access, storage, use or disclosure of Customer content by Niche not in violation of this Agreement or (iii) Customer use of Niche Content.
7.2 Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DATA OR REVENUES, OR BUSINESS INTERRUPTION), REGARDLESS OF THE BASIS OF THE CLAIM, IN CONNECTION WITH THE AGREEMENT. NICHE’S AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID UNDER THE APPLICABLE SERVICE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE THEREOF.
TERM AND TERMINATION.
8.1 Term. The term of the Agreement shall commence and continue for the period set forth in the applicable Service Agreement (the “Term“).
8.2 Termination for Breach. In the event of any material breach of the Agreement (other than failure to make payment when due), the non-breaching party may terminate the Agreement by giving 30 days’ prior written notice, unless (i) the other party cures the breach within such 30 day period; or (ii) if the breach cannot be cured within such 30 day period, the other party has taken commercially reasonable steps within such 30 day period to cure the breach and thereafter cures the breach as soon as practicable. In the event of any failure to make any payment when due hereunder, the non-breaching party may terminate the Agreement upon written notice.
8.3 Effect of Termination. Expiration or Termination of the Agreement shall not relieve either party of any obligation that has accrued prior to the effective date of such termination. Sections 1, 3, 4, 5, 6.3, 7, 8.3 and 9 shall survive any expiration or termination of the Agreement. Upon any expiration or termination of the Agreement, all outstanding amounts owed to Niche hereunder shall automatically and immediately become due and payable.
9.1 Entire Agreement; Modification. The Agreement consists of these Terms and Conditions and any duly executed Service Agreement referencing these Terms and Conditions which shall constitute the complete and exclusive understanding and agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and executed by both parties.
9.2 Assignment and Binding Effect. Neither party shall assign the Agreement to any third party without the prior written consent of the other party; provided, however, that Niche may assign the Agreement to an affiliate or in connection with a reorganization, merger, acquisition, divesture, sale of all or substantially all assets to which the Agreement relates, or any similar corporate transaction. Any assignment in contravention of this paragraph shall be null and void. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
9.3 Governing Law. The interpretation, validity and performance of the Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to any rules pertaining to conflicts of law that would result in the application of the law of any other jurisdiction. In the event of any dispute arising out of or related to the Agreement, the parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Allegheny County, Pennsylvania.
9.4 Force Majeure. Niche shall not be responsible or liable for any delay or nonperformance under the Agreement caused by any Internet or telecommunications failure, computer virus, third party interference, software, hardware or other product or service, or any other events or circumstances, regardless of whether similar to any of the foregoing, beyond Niche’s reasonable control.
9.5 Miscellaneous. The parties agree that Niche is an independent contractor and not an employee, agent, joint venturer, or partner of Customer. Any notice required or permitted to be given in connection with the Agreement will be in writing, and Customer agrees to receive any such notice from Niche by email or other commercially reasonable electronic notice. Subject to Customer’s prior written approval, Niche may use the name and logo of Customer on the Website and in its standard marketing material used to promote its products and services, subject to any reasonable trademark usage guidelines provided by Customer. If any provision of the Agreement is held invalid or unenforceable by any court or government body of competent jurisdiction, such provision shall continue in effect in all other circumstances and jurisdictions and otherwise to the full extent permissible under applicable law, and the other provisions shall continue in effect (unaffected thereby). No party shall be deemed to be the drafter of any provision of the Agreement, and no provision of the Agreement shall be construed against any party on the basis of the identity of the drafter. The Agreement may be executed in any number of counterparts (including electronically transmitted versions). All counterparts shall be construed together and shall constitute one and the same instrument.
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