These terms and conditions for our Software (the “Terms”) apply to the purchase, sale, or use of our cloud subscription-based software products and services (“Software”) through nebula.io, or gqr.io (the “Site”) and constitute a binding contract between yourself and any entity for which you are acting as an employee, owner, contractor, consultant, or agent (“you”, “your”, or “Customer”) and Wynden Stark Limited and Wynden Stark LLC dba GQR Global Markets and Nebula.io LLC ( “us”, “we”, “our”, or “Nebula”). These Terms are subject to change by us without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of June 22, 2023 (“Effective Date”).
OUR SOFTWARE, PRODUCTS AND SERVICES ARE LICENSED, NOT SOLD.
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN NEBULA AND YOU AND GOVERNS THE USE OF AND ACCESS TO THE SOFTWARE BY YOU FOR PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. USE OF THIS SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THESE TERMS BEFORE USING THE SOFTWARE. USE OF SOFTWARE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT PURCHASE ORDER TERMS AND CONDITIONS SHALL NOT APPLY.
PLEASE BE AWARE THAT THE TERMS, BELOW, CONTAIN PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1. Sign in or Use Creates a Legally Binding Contract Between You and Us
- “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.
- “Candidate Data” means information, data, and other content, in any form or medium, that is on, or submitted, posted, or otherwise transmitted by, to, or on that relates to individuals or corporate entities within the Software that you may be looking to hire for full or part time employment, consultancy, an independent contractor agreement or any other agency through or as part of the use of the Software.
- “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Software.
- “Documentation” means Nebula’s user manuals, handbooks, and guides relating to the Software provided by Nebula to Customer either electronically or in hard copy form/end user documentation relating to the Software.
- “Nebula IP” means the Software, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Nebula IP, includes Aggregated Statistics and any information, data, or other content derived from Nebula’s monitoring of Customer’s access to or use of the Software, but does not include Customer Data.
- “Order Form” means the Customer’s Subscription Order Form and Agreement.
- “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Software.
3. Access and Use
- Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other Terms, Nebula hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Software during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Nebula shall provide you the necessary access credentials to allow you to access the Software.
- Documentation License. Subject to the terms and conditions contained in the Terms, Nebula hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Software.
- Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Software, any software component of the Software, or Documentation for any purposes beyond the scope of the access granted in the Terms. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software, any software component of the Software, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation except as expressly permitted under the Terms; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; or (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. Nothing in these Terms shall obligate us to continue providing access to any service beyond the date when we cease providing such Service to customers generally.
- Aggregated Statistics. Notwithstanding anything to the contrary in the Terms, Nebula may monitor Customer’s use of the Software and collect and compile data and information related to Customer’s use of the Software to be used by Nebula in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Statistics”). As between Nebula and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Nebula. You acknowledge that Nebula may compile Aggregated Statistics based on Customer Data input into the Software. You agree that Nebula may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer’s Confidential Information.
- Reservation of Rights. Nebula reserves all rights not expressly granted to Customer in the Terms. Except for the limited rights and licenses expressly granted under the Terms, nothing in the Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Nebula IP.
- Suspension. Notwithstanding anything to the contrary in the Terms, Nebula may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Software if: (i) Nebula reasonably determines that (A) there is a threat or attack on any of the Nebula IP; (B) Customer’s or any other Authorized User’s use of the Nebula IP disrupts or poses a security risk to the Nebula IP or to any other customer or vendor of Nebula; (C) Customer or any other Authorized User is using the Nebula IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Nebula’s provision of the Software to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Nebula has suspended or terminated Nebula’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with these Terms (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Nebula shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension. Nebula shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Software Suspension is cured. Nebula will have no liability for any damage, liabilities, losses (including any loss of profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
- Audits and Inspections. For the purpose of verifying compliance with these Terms, we (and our authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to your business, to audit and inspect from time to time your offices, books and records relevant to the Software and to observe the use made of the service and the manner of accesses to the Software. You agree to cooperate with such audits and provide us with reasonable assistance and access to information about your company, affiliates and clients, Authorized Users, suppliers, and all other users of the Software. If our records pursuant to this section or otherwise indicate that (i) more users are accessing the Software than you have paid for, or (ii) the Software is being accessed by users other than you have been billed for, you shall pay us the shortfall in Fees retrospectively to the date of the applicable increase. If such underpayment exceeds 5% of the Fees due during the relevant period, you shall reimburse us for our reasonable costs associated with such audit or inspection.
4. Customer Responsibilities, Consent, and Warranty.
- Acceptable Use Policy. The Software may not be used for unlawful, fraudulent, offensive, or obscene activity, is not intended to be used by individuals under the age of 18, cannot be used to scrape, crawl, download or programmatically gather the information on it, cannot be used to attempt to reverse engineer our IP, cannot be used except as may be specified as allowable by these Terms (the “AUP”). Access to the Software is controlled by the use of User IDs, passwords and/or tokens. All User IDs and passwords are to be uniquely assigned to named individuals and consequently, Customers are accountable for all actions in the Software. Customers must not: (i) allow anyone else to use their user ID/token and password; (ii) leave the Software logged in at an unattended and unlocked computer; (iii) use another Customer’s user ID and password to access the Software; (iv) leave a password unprotected; (v) perform any unauthorized changes to the Software or information contained in the Software; (vi) attempt to access data that they are not authorized to use or access; (vii) exceed the limits of their authorization or specific business need to interrogate the system or data; (viii) store any information within the Software on any non-authorized equipment; (ix) give or transfer the Software or any information within the Software to any other individual or organization without the express written consent of a director of the Nebula.
- This may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of the Terms, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements.
- Account Use. You are responsible and liable for all uses of the Software and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of the Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Terms if taken by you will be deemed a breach of the Terms by you. You shall use reasonable efforts to make all Authorized Users aware of the Terms as applicable to such Authorized User’s use of the Software and shall cause Authorized Users to comply with such provisions.
- Customer and Candidate Data. You hereby grant to Nebula a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Nebula to provide the Software to you, and a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics and sharing the listing, company, and candidate information within the platform. You will ensure that any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into the Terms or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data. You understand and agree that actions, information, data and Customer or Candidate data that you provide us will be used by us for all lawful purposes, including but not limited to marketing and improving the machine-learning effectiveness of our Software.
NEBULA MAKES NO PROMISE OR WARRANTY, EITHER EXPRESS OR IMPLIED, THAT CANDIDATE DATA COMPLIES WITH APPLICABLE MARKETING OR ADVERTISING LAWS OR USE OF LIKELNESS OR IMAGE LAWS ANDREGULATIONS. YOUEXPRESSLYAGREETHATYOUARERESPONSIBLEFORFULLCOMPLIANCEWITH ALL LAWS AND REGULATIONS RELATING TO CONTACTING INDIVIDUALS OR ENTITIES OR USE OF ANY IMAGES OR LIKENESS PROVIDED FOR IN THE SOFTWARE (E.G., Telephone Consumer Protection Act, Canada’s Anti-Spam Legislation, California Consumer Protection Act).
- Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Software confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
- Third-Party Products. The Services may permit access to Third-Party Products. For purposes of the Terms, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Software by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
- Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Software are in compliance with the AUP.
- CONSENT. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU EXPRESSLY AUTHORIZE NEBULA TO CONTACT YOU IN ANY LAWFUL MANNER, INCLUDING THROUGH THE USE OF AUTOMATIC AND/OR COMPUTERIZED DIALING SYSTEMS, TEXT MESSAGES, AND PRE-RECORDED MESSAGES, INCLUDING, BUT NOT LIMITED TO, ACCOUNT SUPPORT OR TO MARKET, SELL OR PROVIDE YOU WITH INFORMATION REAGRING OUR SOFWARE, PRODUCTS AND SERVICES, OR SOFTWARE, PRODUCTS AND SERVICES OF THIRD PARTIES THAT WE BELIEVE MAY BE OF INTEREST TO YOU, AND YOU HEREBY UNAMBIGUOUSLY AGREE AND EXPRESSLY CONSENT TO RECEIVE SUCH COMMUNIATIONS, INCLUDING BUT NOT LIMITED TO EMAILS, TEXTS AND TELEPHONE CALLS.
- YOU EXPRESSLY CONSENT TO BE CONTACTED AT THE ADDRESSES, TELEPHONE NUMBERS (INCLUDING MOBILE OR WIRELESS NUMBERS), AND EMAIL ADDRESSES YOU PROVIDE TO US (EITHER VERBALLY OR WRITTEN) AS CONTAINED YOUR INFORMATION AND/OR SOFTWARE. YOU REPRESENT AND WARRANT THAT ANY MOBILE OR WIRELESS TELEPHONE NUMBER YOU PROVIDE BELONGS TO YOU AND IS ASSOCIATED WITH A MOBILE DEVICE IN YOUR POSSESSION. YOU HEREBY AGREE TO NOTIFY US AT YOUR EARLIEST CONVENIENCE IF YOUR MOBILE OR WIRELESS TELEPHONE NUMBER CHANGES. SHOULD YOU HAVE ANY QUESTIONS ABOUT WHICH ADDRESSES, TELEPHONE NUMBERS OR EMAIL ADDRESSES YOU PROVIDED TO US CONTACT YOUR ACCOUNT REPRESENTATIVE.
- YOUR CONSENT TO THE TERMS OF THIS SECTION IS NOT REQUIRED, DIRECTLY OR INDIRECTLY, AS A CONDITION OF PURCHASING THE SOFTWARE. SHOULD YOU NOT WISH TO CONSENT TO BEING CONTACTED OR TO REVOKE A CONSENT PREVIOUSLY GIVEN, CONTACT YOUR ACCOUNT REPRESENTATIVE.
5. Service Levels and Support
6. Fees and Payment – NO REFUND
- Customer shall pay Nebula the fees as described on the Site (“Fees”) within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date.
- If Customer fails to make any payment when due, without limiting Nebula’s other rights and remedies: (i) Nebula may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Nebula for all reasonable costs incurred by Nebula in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. If payment is not received within 40 days, Nebula may suspend Customer’s and all other Authorized Users’ access to any portion or all of the Software until such amounts are paid in full. All Fees and other amounts payable by Customer under the Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
- NO REFUND. ONCE YOU ACCEPT THESE TERMS, YOU ARE NOT ENTITLED TO ANY REFUND. DO NOT ACCEPT THESE TERMS IF YOU HAVE ANY QUESTIONS REGARDING OUR NO REFUND POLICY. Because of the nature of the Software and your ability to perform searches and gain access to Candidate Data and information immediately after you Accept, no refunds are provided for our Software.
7. Confidential information.
8. Privacy Notice
9. Intellectual Property Ownership; Feedback
10. No warranties – Software Provided “As Is”.
12. Limitations of Liability
13. AUTOMATIC RENEWAL,Term and Termination.
- Term and Termination. A paid subscription is provided to You with an Effective Date and a data that provides the end of the initial term (“Subscription Term End Date”), each a (“Subscription Term”). This subscription automatically renews on the term anniversary (may be monthly, quarterly, or annual), with each subscription being a Subscription Term.
ALL SUBSCRIPTIONS AUTOMATICALLY RENEW, UNLESS YOU PROVIDE US WITH THIRTY DAYS WRITTEN NOTICE OF YOUR INTENTION TO NOT TO RENEW. In addition to any other express termination right set forth in the Terms, Nebula may terminate the Terms, for any reason upon sixty days’ advance notice. The Parties may amend this term and termination provision in the Order Form.
- Material Breach or Misuse. Either party may terminate the Terms, effective on written notice to the other party, if the other party materially breaches the Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. If Nebula reasonably believes or determines that You are misusing the software or using the software or website in a manner that violates these Terms, Nebula may suspend or terminate your access immediately.
- Effect of Termination. Upon termination of the Terms, Customer shall immediately discontinue use of Software. No expiration or termination of the Terms will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
- Survival. Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination.