Customer Terms and Conditions

TERMS AND CONDITIONS

  1. DEFINITIONS.
    • 1.1. “Agreement” means these Terms and Conditions, any Service Agreement referencing these Terms and Conditions, and any attachment, exhibit, addendum or amendment to such applicable Service Agreement. All such components are integral to the agreement between the parties and are collectively referred to herein and in each Service Agreement as the “Agreement.” If any provision of the Service Agreement, or terms incorporated into the Agreement by reference or attachment, conflicts with these Terms and Conditions, then these Terms and Conditions shall take precedence, followed by: (i) any attachment to the applicable Service Agreement; (ii) the Service Agreement; and then (iii) any Customer terms and conditions incorporated only by reference in the Agreement. The terms of the Agreement may not be changed without mutual written consent of both parties.
    • 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.
    • 1.3. “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 products and/or services described in the applicable Service Agreement, intended to be provided by Niche to Customer in accordance with all terms of the 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.
  2. ENGAGEMENT.  Subject to the Terms and Conditions contained herein and any other terms of the Agreement, Customer hereby engages Niche to provide the Services.   
  3. 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 late payment, Customer will be obligated to pay the cost of collections, including attorney fees. 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. Customer agrees that the Fees are neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Niche with respect to future functionality or features. Fees are based on access to Services purchased and not actual usage. Payment obligations are non-cancelable, and Fees paid are non-refundable. Unless Customer can provide evidence of an exemption, Customer is 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. If Customer has agreed to auto-renewal in the applicable Service Agreement, the Services for each Renewal Term will be subject to Fees at the then-current market rate pricing.
  4. 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: (i) any Confidential Information that was legally possessed prior to receipt from the source; (ii) was received in good faith from a third-party not subject to a confidential obligation to the source; (iii) now is, or later becomes, publicly known through no breach of confidentiality obligation by the recipient; or (iv) 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. If disclosure of Confidential Information is required by applicable law or government order, then the party subject to such obligation may only disclose Confidential Information to the extent required by such law or government order.
  5. INTELLECTUAL PROPERTY.  
    • 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 the 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 for the 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 the Agreement.
    • 5.3. Student Enrollment Verification. If Customer is a postsecondary educational institution, Customer hereby grants the ability to use data provided to Niche by the National Student Clearinghouse (“NSC Data”) to generate reports for Customer on a Customer-specific basis pertaining to Website users that show interest in Customer regarding the following: enrollment rates for those Website users, enrollment rate of Website users that provide qualified inquiries, enrollment rate of Website users that Niche generates as leads for Customer, enrollment rate by Website users by Niche Service, enrollment types, and retention rate such Website users. Such NSC Data of Customer shall be treated as Confidential Information in accordance with this Agreement.
    • 5.4 Aggregate Data Collection. Customer acknowledges and agrees that Niche may as permitted by law (a) collect, process, and use aggregated data, stored by or related to the Services, including, without limitation, data generated by the Services, data generated by any device incorporating the Services, or data generated by third parties that Customer has requested or allowed to be provided to Niche, and create anonymized and/or aggregated data records that do not allow Niche to identify any natural person (“Aggregate Data”), (b) use such Aggregate Data to improve the Services, develop new software or services, understand industry trends, create and publish white papers, reports, predictive analysis, or databases summarizing the foregoing, and generally for any legitimate purpose related to Niche’s business, and (c) use Aggregate Data to investigate and help address and/or prevent actual or potential unlawful activity.
  6. WARRANTY; DISCLAIMER.
    • 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 recruiting activities by or on behalf of educational, banking, lending, or any other regulated entities, 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 review, 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, violation of the Niche privacy policy, or danger to any person or property. Customer will promptly notify Niche in the event it receives notice, or otherwise becomes aware, of any investigation, inquiry, or proceeding concerning a possible violation of any law or regulation relating to or affecting this Agreement, or a breach of any warranty, covenant or obligation of Customer hereunder (including of or by any subcontractor, agent, third party, or Entity which provides any services for Customer, or received Services from Niche, in connection with the 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 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.
  7. 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. 
  8. 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 – (collectively, “Losses”) 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 Losses 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.
    • 8.3 Third Party Applications and User Generated Content. Certain third-party applications and user generated content (“UGC”) may be included with or integrated into the Services. Niche makes no representations whatsoever about any of these applications or the UGC. Since Niche has no control over such applications or UGC, Customer acknowledges and agrees that Niche is not responsible for such applications or the UGC. Customer also expressly acknowledges and agrees that use of third-party applications is at Customer’s sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with Customer. Customer agrees that Niche shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage to or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third-party content, products, or services available on or through any such application or UGC published by third-parties on the Niche website or app. Customer further acknowledges and agrees that the use of any third-party application is governed by such third-party application provider’s terms of use, license agreement, privacy policy, or other such agreement and that any information or personal data Customer provides, whether knowingly or unknowingly, to such third-party application provider, will be subject to such third-party application provider’s privacy policy, if such a policy exists. NICHE DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD-PARTY APPLICATION PROVIDER. CUSTOMER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER CUSTOMER’S PERSONAL INFORMATION IS CAPTURED BY ANY THIRD-PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD-PARTY APPLICATION PROVIDER.
  9. 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, Customer will pay Fees for any Services incurred prior to the effective date of the termination and Niche has no obligation to refund or otherwise return any prepaid Fees for Services that were to be provided after the termination.
  10. GENERAL PROVISIONS.
    • 10.1. Entire Agreement; Modification.  The Agreement consists of these Terms and Conditions and any duly executed Service Agreement and any other terms incorporated into the Agreement by reference or attachment, which constitute the complete and exclusive understanding of the parties and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event that the Customer requires a Purchase Order or other document to be included as a part of Customer’s vendor onboarding process for the Services (“PO”), this Agreement shall take precedence over any conflicting term in the PO. 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, on third party applications and internet-based services in connection with providing Services, and in Niche’s 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.  

Rev. Date 03 08 2023