This Pre-Release Subscription Services Agreement (the “Agreement”) governs your use of the Pre-Release Service made available by P180 Investments, LLC dba nCommon (“nCommon”). The Agreement is a binding legal agreement between P180 Investments, LLC dba nCommon and the entity or individual entering into the Agreement (the “Subscriber”).
The Pre-Release Service is an alpha, beta or preliminary release service offering and is not at the level of performance of a commercially available service offering. The Pre-Release Service may not operate correctly and may be substantially modified prior to any commercial release, or, at nCommon’s sole option, may not be released commercially in the future.
BY ACCEPTING THE AGREEMENT, CLICKING A BOX INDICATING YOUR ACCEPTANCE OR USING THE PRE-RELEASE SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE ENTERING THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT. YOU MAY NOT ACCESS OR USE THE PRE-RELEASE SERVICE IF YOU ARE A COMPETITOR OF
NCOMMON.
“Confidential Information” means all proprietary or confidential information that is disclosed by nCommon to Subscriber or End User or to which Subscriber or End User have access to via the Pre-Release Services, and includes, among other things (i) any and all information relating to the Pre-Release Service, nCommon’s financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts, the terms of the Agreement; (ii) the data and inferences contained in any nCommon Profile, and (iii) Feedback.
“End User” means an individual authorized by Subscriber to access and use the Pre-Release Service and who have been assigned unique user identifications by the Subscriber or by nCommon at Subscriber’s request. The Subscriber is responsible for each End User’s compliance with the terms and conditions of the Agreement.
“Feedback” means written and verbal feedback provided by Subscriber and End User on the features, functionality and performance of the Pre-Release Service and any testing results.
“nCommon Profile(s)” means a prospect profile compiled by nCommon from publicly available business and personal information which includes data and AI generated inferences about an individual designated by the Subscriber.
“Pre-Release Service” means nCommon’s SaaS-based applications for prospecting efforts, enhancement and management including, without limitation, all code, documentation, software and any pre-generally available updates, new versions, and upgrades, if any, and content (the “Pre-Release Service”).
“Prospect” is an individual designated by an End User to be the subject of nCommon Profile for prospecting purposes.
“Term” means the period beginning on the date you accept the Agreement and ending sixty (60) days thereafter unless terminated earlier as set forth in the Agreement.
Subject to the terms of the Agreement, during the Term, nCommon grants the Subscriber a non-exclusive, non-transferable, non-sublicensable, limited right for Subscriber’s End Users to access and use the Pre-Release Service for the following purposes:
Any rights not specifically granted herein are reserved by nCommon.
Subscriber is responsible for maintaining the confidentiality of the passwords assigned to Subscriber and to its End Users. Subscriber will immediately notify nCommon upon becoming aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised.
The Subscriber is responsible for any and all activities under Subscriber’s account (including its End Users accounts). Subscriber shall (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Pre-Release Service, and shall promptly notify nCommon of any unauthorized access or use, and (ii) ensure that Subscriber and each End User comply with all applicable laws, including without limitation applicable privacy laws, in using the Pre-Release Service and an nCommon Profile including without limitation any information or inferences contained therein.
Throughout the Term, the Subscriber and each End User shall provide verbal and written Feedback to nCommon.
Neither the Subscriber nor any End User shall:
nCommon and its affiliates and licensors own and retain all right, title, and interest to the alpha, beta and all preliminary and general release versions of nCommon Pre-Release Service. nCommon owns all right, title and interest in all software, programming, content, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Pre-Release Service or made available to the Subscriber and/or End Users as a result of the Pre-Release Service.
nCommon owns all Feedback and any intellectual property rights therein and shall be entitled to exploit such Feedback for any purposes. Subscriber and each End User shall execute any instruments as may be required by nCommon to confirm nCommon’s ownership interest therein.
Neither the Subscriber nor any End User may disclose or provide access to any nCommon Confidential Information to any third party or use the Confidential Information in violation of the Agreement. In the event Subscriber becomes legally compelled to disclose any Confidential Information, Subscriber shall provide nCommon with prompt prior written notice of such requirement so that nCommon may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, Subscriber agrees to furnish only that portion of the information which Subscriber is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information. Subscriber (i) will exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information which shall be at a minimum at least a reasonable degree of care, and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information. Notwithstanding the foregoing, Subscriber may disclose Confidential Information to Subscriber 's employees and agents who have a need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of the Agreement.
a. THE PRE-RELEASE SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT. NCOMMON DOES NOT WARRANT THAT ANY PRE-RELEASE SERVICE WILL MEET THE REQUIREMENTS OF THE SUBSCRIBER OR END USER, THAT ANY PRE-RELEASE SERVICE IS FREE FROM DEFECT, ERROR OR WITHOUT DELAY, OR THAT THE ACCESS OR USE OF THE PRE-RELEASE SERVICE WILL BE UNINTERRUPTED. NCOMMON DOES NOT WARRANTY THAT THE PRE-RELEASE SERVICE WILL BE GENERALLY RELEASED.
b. NCOMMON DISCLAIMS ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE PRE-RELEASE SERVICE INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND/OR DAMAGE TO, OR LOSS OF USE OF, DATA, EVEN IF NCOMMON HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. NCOMMON’S ENTIRE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PRE-RELEASE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY THE SUBSCRIBER FOR PRE-RELEASE SERVICE OR $50 USD.
The Agreement shall terminate upon the earlier of the expiration of the Term or immediately upon nCommon’s notice of termination for convenience.
Upon any termination of the Agreement, all rights and licenses granted herein shall terminate and Subscriber and End Users shall no longer access or use the Pre-Release Service or the nCommon Profile or any of the data contained therein.
If a commercial general release version of the Pre-Release Service is made available by nCommon and the Subscriber wishes to purchase a subscription for the general release version, Subscriber must purchase a subscription under the applicable commercial release subscription terms made available by nCommon.
The Subscriber’s and each End User’s obligations and restriction under the Agreement shall survive any termination of the Agreement.
The Agreement shall be governed by and construed in accordance with the laws of Texas without regard to the conflict of law principles of such state. The Subscriber shall submit to the exclusive jurisdiction of the federal and state courts located in Austin, Texas.
The Subscriber hereby agrees that breach of the Agreement will cause nCommon irreparable harm for which recovery of damages would be inadequate, and that nCommon shall therefore be entitled to seek the remedies of temporary and permanent injunction, specific performance or any other form of equitable relief deemed appropriate by a court of competent jurisdiction.
The Subscriber shall not assign or transfer any rights or obligations under the Agreement without the prior written consent of nCommon.