Naehas, Inc. (Naehas) wishes to grant a license to the User (“You”, “User”, “Partner” , “End User” identified on the Order Form) to use the Service (defined below), and the User (“You”, “User”, “Partner”, “End User”) wishes to accept such license, on the terms set out in this Agreement and the Order Form.
As part of the Service, Naehas will provide You with use of the Service, including transmission, access and storage. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
2. License Grant & Restrictions
3. Your Responsibilities
4. Taxes
5. Account Information and Data
6. Intellectual Property Ownership
7. Intellectual Property Notices
8. Confidentiality
9. Third Party Interactions
10. Charges and Payment of Fees
11. Non-Payment and Suspension
12. Termination for Cause
13. Representations & Warranties
14. Mutual Indemnification
15. Limited Warranties
16. Internet Delays
17. Network Uptime
18. Limitation of Liability
19. Additional Rights
20. Local Laws and Export Control
21. Notice
22. Modification to Terms
23. Assignment; Change in Control
24. General
25. Definitions
1. Privacy & Security; Disclosure
Naehas reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Naehas occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Naehas can disclose the fact that you are a paying customer and the configuration of the Service that you are using.
2. License Grant & Restrictions
Naehas hereby grants You a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Naehas and its licensors.
You shall not (i) modify or make derivative works based upon the Service or the Content; (ii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or volatile of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Naehas immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Naehas immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service.
4. Taxes
With respect to any applicable sales and use, or similar taxes that are imposed on the Distribution of the Services, the party responsible for invoicing the End-User shall collect, report, and pay such taxes and charges to the relevant taxing authority, and indemnify the other party from any liability relating thereto.
5. Account Information and Data
You, not Naehas, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Naehas reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Naehas shall have no obligation to maintain or forward any Customer Data.
6. Intellectual Property Ownership
Naehas alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Naehas Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Naehas Technology or the Intellectual Property Rights owned by Naehas. The Naehas name, the Naehas logo, and the product names associated with the Service are trademarks of Naehas or third parties, and no right or license is granted to use them.
7. Intellectual Property Notices
Partner shall not remove or obliterate any copyright, trademark, patent or other proprietary rights notice of Naehas or its licensors which appear in the object or source code of the Licensed Products or services. Partner agrees to include the following notice in the place where it typically includes its own notices and those of third-parties: “Portions of this product include technology used under license from Naehas, Inc. and the Naehas Affiliated Companies.”
8. Confidentiality
Neither party shall use or disclose any Confidential Information of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information (in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate.
“Confidential Information” means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that: (a) was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party; (b) was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party; (c) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party; or (d) is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).
9. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. Naehas and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Naehas does not endorse any sites on the Internet that are linked through the Service. Naehas provides these links to you only as a matter of convenience, and in no event shall Naehas or its licensors be responsible for any content, products, or other materials on or available from such sites. Naehas provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
10. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms mutually agreed upon in the Order Form. All pricing terms are confidential, and you agree not to disclose them to any third party.
11. Non-Payment and Suspension
In addition to any other rights granted to Naehas herein, Naehas reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Service during any period of suspension. If you or Naehas initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Naehas Technology or Service will be deemed a material breach of this Agreement. Naehas, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Naehas may terminate a free account at any time in its sole discretion. You agree and acknowledge that Naehas has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Naehas represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Naehas help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
14. Mutual Indemnification
You shall indemnify and hold Naehas, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Naehas (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Naehas of all liability and such settlement does not affect Naehas' business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Naehas shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Naehas of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Naehas; provided that you (a) promptly give written notice of the claim to Naehas; (b) give Naehas sole control of the defense and settlement of the claim (provided that Naehas may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Naehas all available information and assistance; and (d) have not compromised or settled such claim. Naehas shall have no indemnification obligation, and you shall indemnify Naehas pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
15. Limited Warranties
Naehas warrants that the Service will perform substantially in accordance with the description of the Service operations in the Order Form. Your exclusive remedy and Naehas sole liability under this warranty shall be for Naehas to attempt through reasonable efforts to correct any material failure of the Service to perform as warranted, if you provide Naehas with sufficient information to reproduce the defect in question. When notifying a defect or error you shall (so far as it is able) provide Naehas with a documented example of such defect or error.
THE EXPRESS WARRANTY CONTAINED IN THIS CLAUSE IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY NAEHAS WITH RESPECT TO THE SERVICE AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR ANY OTHER MATTER.
16. Internet Delays
NAEHAS' SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NAEHAS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Network Uptime
Naehas guarantees that its network will be available 99% of the time in a given month, excluding scheduled maintenance. Network downtime exists when Partner is unable to collect any customer responses in an active customer campaign due to no fault of theirs. It is measured from the time the trouble ticket is opened
Upon experiencing downtime of more than 1% in a given month (“excess downtime”) , Naehas will credit Partner 5% of the affected customer’s monthly fee for each 30 minutes of “excess downtime” (up to 100% of the affected customer’s monthly fee).
18. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
20. Local Laws and Export Control
The Naehas website provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Naehas and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.
21. Notice
Naehas may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Naehas' account information, or by written communication sent by first class mail or pre-paid post to your address on record in Naehas' account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email). You may give notice to Naehas (such notice shall be deemed given when received by Naehas) at any time by any of the following: letter sent by confirmed facsimile to Naehas at the following fax number: 650-649-2999; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Naehas at the following address: Naehas Inc. 525 Middlefield Road, Suite 230, Menlo Park, CA addressed to the attention of: CEO.
22. Modification to Terms
Naehas reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on its website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
23. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Naehas but may be assigned without your consent by Naehas to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Naehas directly or indirectly owning or controlling 50% or more of you shall entitle Naehas to terminate this Agreement for cause immediately upon written notice.
24. General
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.
No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between you and Naehas as a result of this agreement or use of the Service.
The failure of Naehas to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Naehas in writing.
This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Naehas and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
25. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on the Naehas website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Naehas from time to time in its sole discretion;
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is or the date you begin using the Service;
"Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
"Naehas" means collectively Naehas, inc., a Delaware corporation, having its principal place of business at 525 Middlefield Rd, Suite 230, Menlo Park, CA.
"Naehas Technology" means all of Naehas' proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Naehas in providing the Service;
"Service(s)" means the specific edition of Naehas' online customer relationship management, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by Naehas, accessible via http://www.Naehas.com or another designated web site or IP address, or ancillary services rendered to you by Naehas, to which you are being granted access under this Agreement, including the Naehas Technology and the Content;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Naehas at your request).
