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” means 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” means 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” means one or more agreements for services between the parties, which may be numbered, that reference(s) these Terms and Conditions.
1.5 “Services” means 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 will pay to Niche all fees, reimbursements and other amounts listed or described in the applicable Service Agreement (collectively, “Fees“). Customer will 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 will be obligated to pay the cost of collections, including attorney fees. Unless Customer can provide evidence of an exemption, Customer is also responsible for paying all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of 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 Customer pays any overdue amounts in full.
CONFIDENTIALITY. Either party may disclose to the other party proprietary or confidential information which includes any information that should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself (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 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 do 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, is the intellectual 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 is 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 and 3rd party networks/websites, as authorized in the Service Agreement, 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.
6.3 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 Services or the Website will be uninterrupted or error-free and any warranties related to any usage or success of the Services or the Website.
LIMITATIONS ON USE OF SERVICES AND NICHE CONTENT. Customer agrees that the Niche Content and information derived from any Services are 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 and other purposes specifically authorized in the Service Agreement. 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 or the information derived from any Services to a third party.
INDEMNIFICATION; LIMITATIONS OF LIABILITY.
8.1 Indemnification. Niche will 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 Website or the Niche Content. Customer will 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, or (ii) Customer use of Niche Content, Personal Information, or information derived from any Services in violation of privacy policies and all applicable industry standards, laws and regulations.
8.2 Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT, IN NO EVENT WILL 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 WILL 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 WILL 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.
9.1 Term. The term of the Agreement commences and continues for the period set forth in the applicable Service Agreement (the “Term“).
9.2 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 the other party cures the breach within such 30 day period. In the event of any failure to make any payment when due hereunder, Niche may terminate the Agreement upon written notice.
9.3 Effect of Termination. Expiration or Termination of the Agreement does 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, 9.3 and 10 survive any expiration or termination of the Agreement. Upon any expiration or termination of the Agreement, all outstanding amounts owed to Niche hereunder will automatically and immediately become due and payable.
10.1 Entire Agreement; Modification. The Agreement consists of these Terms and Conditions and any duly executed Service Agreement referencing these Terms and Conditions which 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.
10.2 Assignment and Binding Effect. Neither party will assign the Agreement to any third party without the prior written consent of the other party; provided, however, that Niche may assign the Agreement in connection with a reorganization, merger, acquisition, divesture, or sale of all or substantially all assets relating to the Agreement. Any assignment in contravention of this paragraph is null and void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
10.3 Governing Law. The interpretation, validity and performance of the Agreement is governed by the laws of the Commonwealth of Pennsylvania, without regard to any rules pertaining to conflicts of law. 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.
10.4 Force Majeure. Niche will 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.
10.5 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 to the addresses identified in the Service Agreement, and Customer agrees to receive any such notice from Niche by email or other commercially reasonable electronic notice. Notwithstanding anything else in the Agreement to the contrary, 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 will continue in effect in all other circumstances and jurisdictions and otherwise to the full extent permissible under applicable law, and the other provisions will continue in effect (unaffected thereby). No party will be deemed to be the drafter of any provision of the Agreement, and no provision of the Agreement will be construed against any party on the basis of the identity of the drafter.
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