These Terms and Conditions shall apply to Customer’s use of the Athstat Pitchsidelication’s services, packaged professional services, all linked pages, content, products or offline components (“Service” or “Services”). These Terms and Conditions (the “Agreement”) represent the parties’ entire understanding regarding the Services. Customers not willing to be bound by these Terms and Conditions should not purchase a Subscription or use the Services. Athstat is a wholly owned entity of NU Borders LLC, who own the legal rights to all aspects of the Athstat Product and are herein referred to as the legal entity owning the product.
Customer may purchase subscription access (a “Subscription”) to the Services for a fee (the “Fee”) for the period of time (the “Access Period”) elected from the available options (e.g., monthly or annually etc.). The Fee is exclusive of any applicable federal, state, telecommunications, excise or other taxes or duties, including VAT and GST (collectively “Applicable Taxes”) unless otherwise specified.
Subscriptions will automatically renew until cancelled. NU Borders will automatically renew or commence the Subscription for a new Access Period by charging the associated Fee plus any Applicable Taxes to the payment method provided unless the Subscription is cancelled as provided.
If Customer opts-out of automatic renewals, the Subscription shall expire and access to the Services will cease at the end of the specified Access Period. In order to continue to access the Services after the Access Period has expired or terminated, Customer will need to purchase a new Subscription or submit a data access request as described in 7.3.
Customer may cancel the Subscription at any time by contacting info@athstat.com or by cancelling directly from the application in the User Setting page. Cancellation will cease auto-renewal of Subscription, but the Fee is nonrefundable except where required by law.
NU Borders shall transfer Customer billing information to payment processor(s) as described in the Privacy Policy. Customer is required to maintain accurate and up-to-date payment information. NU Borders assumes no responsibility or liability if the Subscription fails to renew or otherwise expires because of outdated or incorrect payment information.
3.1. To be eligible to access and use the Services, Customer must be at least 18 years of age, or the age of legal majority in the Customer’s jurisdiction, and capable of entering into a binding agreement; User must be affiliated with the team for which they are requesting am account. NU Borders will determine user affiliation using multiple methods depending on team size and evidence provided.3.2. During the Access Period. NU Borders grants to Customer a nontransferable, nonexclusive, nonsublicenseable worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services subject to the terms of the Agreement.3.3. The Services are provided by NU Borders from a data center facility to which Users have remote access via the Internet. Specific usage rights (“Usage Rights”) are described below, and Customer shall at all times ensure that its use does not exceed or otherwise violate its Usage Rights.3.4. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and devices needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, "Equipment"). Customer shall ensure that Equipment complies with any configurations and specifications set forth herein.3.5. Usage and System Requirements3.5.1. Customer will be appraised of system requirements to run the application upon contacting the Athstat team working under NU Borders.
4.1. Customer shall not, directly or indirectly:4.1.1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services;4.1.2. modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software;4.1.3. use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to NU Borders; or4.1.4. remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and software only for its own internal business operations, and not for the operation of a service bureau or timesharing service.4.2. Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with NU Borders's provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer's account access passwords. Customer and NU Borders agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.4.3. Customer represents and warrants that Customer will use the Services only in compliance with the requirements set forth herein (as may be amended from time to time upon written notice to Customer), and all applicable and laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation.4.4. NU Borders may immediately suspend Customer's password, account, and access to the Services if4.4.1. Customer fails to make payment due within ten business days after NU Borders has provided Customer with notice of such failure; or4.4.2. Customer violates Section 3, 4, or 9 of these Terms and Conditions. Any suspension by NU Borders of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement.4.5. Troubleshooting4.5.1. Customer must first work through the applicable Support Troubleshooting Guides provided via the Services prior to submitting any Support Request to NU Borders. If Customer is unable to resolve any actual or suspected issue having worked through the Support Troubleshooting Guide, it must submit a reasonably detailed Support Request to NU Borders via the “Submit a Request” feature.4.5.2. Customer must provide, at NU Border’s request, suitably qualified and informed Personnel to provide assistance and information to NU Borders, including with respect to knowledge or control of matters that may assist NU Borders in performing its obligations under this Agreement.4.5.3. NU Borders will determine the nature, potential severity and impact of the issue giving rise to a Support Request. NU Borders will during the Hours of Service investigate the problem and respond to Customer, where reasonably practicable, within one Business Day from the time of the first consultation with Customer and will, as and when necessary, provide Customer with the following information by email response:4.5.3.1. an outline of the problem;4.5.3.2. the proposed corrective action; and4.5.3.3. to the extent possible, the proposed timeframe for performing such corrective action.
5.1. NU Borders owns or has rights to all intellectual property rights in and to the Services (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by NU Borders, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by NU Borders.5.2. Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Services, ("Customer Data"). NU Borders has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the NU Borders Services. Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below.5.3. Statistical Information5.3.1. Notwithstanding anything else in the Agreement or otherwise, NU Borders may monitor Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner to compile statistical and performance information related to the provision and operation of the Services (for example application response time, uptime and downtime). NU Borders will at no point make the data publicly available.5.4. Privacy and Data Protection5.4.1. Customer will ensure that:5.4.1.1. Customer is entitled to transfer all relevant personal data to NU Borders so that NU Borders may lawfully use, process and transfer the personal data on Customer’s behalf and in accordance with this Agreement; and5.4.1.2. the relevant third parties and data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws. Customer shall be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations, such as, the European Union General Data Protection Regulation and member state implementations thereof.
6.1. Customer shall pay the Fee set forth at the time of purchase. All fees are non-cancelable and nonrefundable, except as expressly specified herein. The Fee is exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on NU Borders's income). Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.6.2. If at any time NU Borders determines that Customer is exceeding the Usage Rights or if customer decides they would like to upgrade service, NU Borders shall notify Customer and Customer shall apply charges for appropriate service levels. If Customer fails to do so within 30 days of receipt of NU Borders’s notice, NU Borders reserves the right to charge and Customer agrees to pay NU Borders's then-current usage fees for such overage.
7.1. The Agreement shall commence as of the date of purchase and, unless earlier terminated, shall remain in effect through the Access Period. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.7.2. In the event of a material breach by either party, the non-breaching party shall have the right to cancel the Subscription for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If NU Borders terminates the Subscription for Customer's material breach, all Fees shall be retained and no refund shall be provided for any unexpired portion of the Access Period.7.3. Upon any termination or expiration of the Subscription, Customer's right to access and use the Services covered by the Subscription shall terminate. Notwithstanding the foregoing, at Customer's request if received within 30 days of termination of the Subscription, NU Borders will permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in NU Borders's possession. Customer acknowledges and agrees that NU Borders has no obligation to retain Customer Data and that NU Borders may irretrievably delete and destroy Customer Data after 30 days following the termination of the Subscription. Customer may request deletion of data by written request to info@athstat.com following termination of the Subscription.
8.1. Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. NU Borders warrants to Customer that provide the Services in a manner consistent with the Agreement. Customer must notify NU Borders of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.8.2. For breach of the express warranty set forth herein, Customer's exclusive remedy shall be the re-performance of the deficient Services. If NU Borders cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to NU Borders for such deficient Services, and such refund shall be NU Borders's sole remedy and entire liability.8.3. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond NU Borders's reasonable control. NU Borders shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.8.4. NU Borders shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer8.4.1. promptly gives written notice of the Claim to NU Borders;8.4.2. gives NU Borders sole control of the defense and settlement of the Claim (provided that NU Borders may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and8.4.3. provides to NU Borders, at NU Borders's cost, all reasonable assistance.Customer shall defend, indemnify and hold NU Borders harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against NU Borders by a third party alleging that Customer Data, or Customer's use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that NU Borders8.4.4. promptly gives written notice of the Claim to Customer;8.4.5. gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases NU Borders of all liability); and8.4.6. provides to Customer, at Customer's cost, all reasonable assistance.8.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NU BORDERS AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. NU BORDERS AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NU BORDERS AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT8.5.1. THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR8.5.2. THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER NU BORDERS NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NU BORDERS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY NU BORDERS, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS.
EXCEPT FOR LIABILITY ARISING UNDER A BREACH OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, PAYMENT OBLIGATIONS OF CUSTOMER, THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
9.1. FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS;9.2. FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;9.3. FOR ANY MATTER BEYOND IT'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR9.4. FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEEDING 12 MONTHS.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer's login identifiers and credentials for Accounts. The Receiving Party agrees:
10.1. to take reasonable precautions to protect such Confidential Information; and10.2. not to use (except as expressly permitted in Section 4.3) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information that the Receiving Party can document10.2.1. is or becomes generally available to the public; or10.2.2. was in its possession or known by it prior to receipt from the Disclosing Party; or10.2.3. was rightfully disclosed to it by a third party; or10.2.4. was independently developed without use of any Confidential Information of the Disclosing Party; or10.2.5. is required by law. Customer Data may be destroyed as set forth in Section 7.3, and, upon Customer’s request, NU Borders shall certify to such destruction in writing.
NU Borders may give notice applicable to NU Borders's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in NU Borders's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in NU Borders's account information. If Customer has a dispute with NU Borders, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to NU Borders at 1037 Pleasant St., Bridgewater MA 02324.
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer's obligation to pay for the Services provided.
13.1. Any legal claims, proceedings or litigation arising out of or in connection with the Services will be brought solely in the Federal or State courts of the State of Virginia, and each Party hereto consents to the jurisdiction and venue of such courts in any suit, action or proceeding concerning this Agreement. Any action, Claim, or dispute related to the Agreement will be governed by Virginia law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.13.2. This Agreement represent the parties' entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting or additional communications. Accepting these terms and completing the account creation process, shall be sufficient to bind the parties to the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.13.3. No joint venture, partnership, employment, or agency relationship exists between NU Borders and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.
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