Thank you for your interest in Nodepath (“Nodepath”) and our website at nodepath.app (the “Site”), as well as all related applications, and other services provided by us and on which a link to this Terms of Service is displayed (collectively, together the “Nodepath Services”).
You must be at least 18 years of age to use the Nodepath Services. If you are using the Nodepath Services on behalf of an entity, organization, or company (an “Organization”), then you are agreeing to this Agreement on behalf of that Organization, which is the “Subscriber” under this Agreement, and you represent and warrant that you have the authority to bind such Organization to this Agreement.
2. ACCOUNT REGISTRATION
2.1 Registration. To use the Nodepath Services, Subscriber must register for an account. When you register, you will need to provide us with some information such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it up to date at all times.
2.2 Access Credentials. When you register, you will be asked to provide a password. Subscriber will be able to add employees of Subscriber (or one of its affiliates) as authorized to use the Nodepath Services (“Authorized Users”) who will each have a unique user account and password for the Nodepath Services. Each authorized user must have their own access credentials and sharing access credentials with multiple users is prohibited. Subscriber is solely responsible for maintaining the confidentiality of all account information and passwords, and Subscriber accepts responsibility for all activities that occur under its accounts.
3. USE OF THE Nodepath SERVICES
3.1 Use of the Nodepath Services. Subject to the terms and conditions of this Agreement, Nodepath grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2), revocable right during the term of this Agreement to use the Nodepath Services. Nodepath may modify the Nodepath Services at any time, including, without limitation, by limiting or discontinuing certain features of the Nodepath Services, without notice to Subscriber. Nodepath will have no liability on account of any change to the Nodepath Services.
3.2 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Nodepath Services; (b) rent, lease, or otherwise permit third parties to use the Nodepath Services; (c) use the Nodepath Services to provide services to third parties (e.g., as a service bureau); nor (d) circumvent or disable any security or other technological features or measures of the Nodepath Services.
3.3 Prohibited Conduct. BY USING THE Nodepath SERVICES, SUBSCRIBER AGREES NOT TO:
(a) use the Nodepath Services for any illegal purpose, or in violation of any law;
(b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third-party intellectual property rights;
(c) post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(d) collect, manage, or process Sensitive Information. “Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Payment Card Industry Data Security Standards, the Health Insurance Portability and Accountability Act, and other regulations; and any information defined under EU data protection laws as ‘Sensitive Personal Data’.
(e) interfere with security-related features of the Nodepath Services; or
(f) attempt to do any of the foregoing in this Section 3.3, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 3.3.
3.4 Third-Party Services and Linked Websites. Nodepath provides tools that enable the automatic export and sync of information to third-party services, including features that allow Subscriber to connect the Subscriber’s account with an account on the third-party platform. By using these tools, Subscriber agrees that we may transfer such information to the applicable third-party service. Such third-party services are not under our control, and we are not responsible for their use of Subscriber’s exported information.
3.5 Ownership; Proprietary Rights. The Nodepath Services are owned and operated by Nodepath. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Nodepath Services (the “Materials”) provided by Nodepath are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Nodepath Services are the property of Nodepath or its third-party licensors. Except as expressly authorized by Nodepath, Subscriber may not make use of the Materials. Nodepath reserves all rights to the Materials not granted expressly in this Agreement.
3.6 Feedback. If Subscriber provides any feedback to Nodepath concerning the functionality or performance of the Nodepath Services (including identifying potential errors or improvements), Subscriber hereby grants to Nodepath a perpetual, irrevocable, non-exclusive, transferrable, royalty-free, worldwide license (with right to grant sublicenses through multiple tiers) in and to the feedback, and Nodepath is free to use the feedback without payment or restriction.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. To use the Nodepath Services, Subscriber must pay all applicable fees. You will have an opportunity to review and accept any fees by executing a Service Order, or as part of Nodepath’s online checkout process. All fees are in U.S. Dollars and are non-cancelable and non-refundable. Unless otherwise agreed by Nodepath, all fees must be paid in advance of the subscription period by credit card.
(a) Authorization. Subscriber authorizes Nodepath to charge all sums for the orders that Subscriber makes and any level of Nodepath Services you select as described in this Agreement or published by Nodepath, to the payment method specified in your account.
(b) Subscription Service. Paid accounts may require automatic recurring payments. The subscription will continue unless and until you cancel or we terminate it. You must cancel before it renews in order to prevent billing for the subsequent period. We will bill the subscription to the payment method you provide to us during registration (or to a different method if you change it). You may cancel a subscription in your account settings.
(c) Delinquent Accounts. Nodepath may suspend or terminate access to the Nodepath Services for any account for which any amount is due but unpaid.
4.2 Taxes. Other than net income taxes imposed on Nodepath, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date and continue for the initial term specified when in Subscriber’s Service Order or online checkout process, unless it is terminated earlier in accordance with the terms of this Agreement. Unless otherwise agreed by Nodepath, this Agreement will automatically renew for additional successive terms of equal length to the initial term unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
5.2 Termination by Subscriber. Subscriber may terminate this Agreement at any time by canceling Subscriber’s account via the account settings tab.
5.3 Termination of Use; Discontinuation and Modification of the Nodepath Services. Nodepath may suspend your access to the Nodepath Services or terminate this Agreement, in its sole discretion, at any time if: (a) you breach this Agreement; (b) you misuse the Nodepath Services; or (c) allowing you to access or use the Nodepath Services would violate any applicable local, state, federal or other laws, rules and regulations, or would expose Nodepath to legal liability. We will use reasonable efforts to provide you notice of any such suspension or termination. You agree that Nodepath shall not be liable to you or any third-party for any such suspension or termination.
5.4 Post-Termination Obligations. Upon termination of this Agreement for any reason: (a) Subscriber’s license rights will terminate and Subscriber must immediately cease all use of the Nodepath Services; (b) Subscriber will no longer have access to its account; (c) Subscriber must pay Nodepath any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 3.2, 3.3, 3.5, 3.6, 4, 5.4, 6.2, and 7 through 12 and all other sections which by their nature should survive.
6. WARRANTIES AND DISCLAIMER
6.1 Subscriber Warranties. Subscriber represents and warrants to Nodepath that: (a) Subscriber will comply with all applicable laws, rules, and regulations in connection with its use of the Nodepath Services; (b) Subscriber has all rights and licenses necessary (including with respect to any and all third-party platforms used by Subscriber in connection with the Nodepath Services) for Nodepath to provide the Nodepath Services to Subscriber and to otherwise grant the rights granted to Nodepath under this Agreement; (c) Subscriber has the right to consent to the use of the Nodepath Services on behalf of all users of the Nodepath Services through Subscriber’s account; and (d) no manual, policy, contract or other documentation of Subscriber creates any expectation of privacy or contains any statements or terms in any way contrary to Subscriber’s and its Authorized Users’ use of the Nodepath Services contemplated in this Agreement, and no user of the Nodepath Services through Subscriber’s account, has an expectation contrary to the use of the Nodepath Services contemplated in this Agreement.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, Nodepath MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER. Nodepath EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. Nodepath DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE Nodepath SERVICES. Nodepath DOES NOT WARRANT THAT THE Nodepath SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE Nodepath SERVICES WILL BE SECURE OR UNINTERRUPTED. Nodepath DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE Nodepath SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE Nodepath SERVICES WILL ALWAYS BE AVAILABLE. Nodepath EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE Nodepath SERVICES.
7. INTELLECTUAL PROPERTY INFRINGEMENT
7.1 Defense of Infringement Claims. Nodepath will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third-party against Subscriber alleging that Subscriber’s use of the Nodepath Services infringes or misappropriates any intellectual property right during the term of this Agreement if: (a) Subscriber gives Nodepath prompt written notice of the Claim; (b) Subscriber grants Nodepath full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Nodepath may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Nodepath Services). Subscriber will not defend or settle any Claim without Nodepath’s prior written consent. Subscriber will have the right to participate in the defense of the Claim with counsel of its own choosing, but Nodepath will have sole control over the defense and settlement of the Claim.
7.2 Indemnification of Infringement Claims. Nodepath will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim Nodepath defends pursuant to Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Nodepath’s consent after Nodepath has accepted defense of the Claim); and (c) all amounts that Nodepath agrees to pay to any third-party to settle any Claim under Section 7.1.
7.3 Exclusions from Obligations. Nodepath will have no obligation under this Section 8 for any infringement or misappropriation arising out of or based upon (a) use of the Nodepath Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) use of the Nodepath Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (c) Subscriber’s failure to use the Nodepath Services in accordance with instructions provided by Nodepath, if the infringement or misappropriation would not have occurred but for such failure; or (d) any modification of the Nodepath Services not made or authorized in writing by Nodepath where such infringement or misappropriation would not have occurred absent such modification.
7.4 Mitigation. If the Nodepath Services become, or in Nodepath’s reasonable opinion are likely to become, the subject of an infringement claim, Nodepath may, at its sole option and expense, either (a) procure for Subscriber the right to continue exercising the rights granted to Subscriber in this Agreement, (b) replace or modify the applicable item of the Nodepath Services so that it becomes non-infringing and remains functionally equivalent, or (c) terminate this Agreement and the licenses granted hereunder; except, that Nodepath is not obligated to take any such action, or any corrective or similar action, in respect of the Nodepath Services pursuant to this Agreement.
7.5 Limited Remedy. This Section 7 states Nodepath’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Nodepath Services.
8. SUBSCRIBER INDEMNIFICATION
8.1 Defense. Subscriber will defend Nodepath from any actual or threatened third-party Claim arising out of or based upon (a) Subscriber’s misuse or improper use of the Nodepath Services; or (b) Subscriber’s breach of any of the provisions of this Agreement. (c) Subscriber’s negligent or intentional misconduct. Nodepath will: (i) give Subscriber prompt written notice of the Claim; (ii) grant Subscriber full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Nodepath will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
8.2 Indemnification. Subscriber will indemnify Nodepath from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Nodepath in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Nodepath in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third-party to settle any Claim under Section 8.1.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 AND SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO Nodepath DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY Nodepath TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.1 Collection of Platform User Data. Subscriber agrees and acknowledges that (a) the Nodepath Services automatically log all user activity conducted on the Nodepath Services, and (b) except for any Subscriber Data, Nodepath owns all right, title and interest in and to this data (“Services Use Data”). Nodepath will not publicly disclose any Services Use Data in a manner that would reasonably likely identify Subscriber as being the source of such Services Use Data.
10.2 User Data. Subscriber owns all right, title and interest in and to the User Data. “User Data” means any data or information provided by Subscriber or accessed by Nodepath, in connection with Subscriber’s use of the Nodepath Services. Notwithstanding the foregoing, Nodepath receives from Subscriber a perpetual, irrevocable, royalty-free, worldwide right and license to access, process, store, and otherwise use anonymous, de-identified data (i.e., in a form that cannot be used itself to identify Subscriber or an individual) for any lawful purpose, including benchmarking, aggregate data scoring services, and validation services.
10.4 Additional Terms. Subscriber’s use of the Nodepath Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Nodepath Services or certain features of the Nodepath Services that Nodepath may post on or link to on the Nodepath Services (the “Additional Terms”), such as rules applicable to particular features or content on the Nodepath Services. All such Additional Terms are hereby incorporated by reference into, and made a part of, this Agreement.
12. CONFIDENTIAL INFORMATION
Both Parties will retain in confidence all information disclosed by the other party that is designated at the time of disclosure as proprietary or confidential (“Confidential Information”). Contact Data is Subscriber’s Confidential Information. Pricing information and product roadmap information is Nodepath’s Confidential Information. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement; (b) is rightfully known at the time of disclosure without an obligation of confidentiality; (c) is independently developed by either party without use of or reference to Confidential Information; or (d) is rightfully obtained from a third-party without restriction on use or disclosure.
13.1 Relationship. Nodepath will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
13.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
13.3 Subcontractors. Nodepath may utilize a subcontractor or other third-party to perform its duties under this Agreement so long as Nodepath remains responsible for all of its obligations under this Agreement.
13.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.5 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Subscriber and Nodepath agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating all such disputes.
13.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.7 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Nodepath Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Nodepath Services will immediately terminate.
13.8 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
13.10 Contact Information. Subscriber may contact Nodepath by using the contact form located at https://nodepath.app.
13.11 Entire Agreement. This Agreement (including each Service Order) is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Nodepath Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any terms explicitly added to each Service Order, or any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Nodepath has any authority to bind Nodepath with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Nodepath will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Nodepath specifically agrees to such provision in writing and signed by an authorized agent of Nodepath.