Terms of Service
THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND NEEMB LLC AND GOVERN THE USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU AND YOUR AGENTS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE, BETA TESTING, FREE TRIAL, OR ANY OTHER USE OF THE SERVICE.
By accepting these Terms, or by accessing or using the Service and/or Site, or authorizing or permitting any Agent to access or use the Service, You represent that You have read, understood, and agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Neemb LLC that You have the authority to bind such Entity and its Affiliates to these Terms and all applicable laws, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letter capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts created by or on behalf of Subscriber or its Agents within the Service.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person or Entity, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.
API: means the application programming interfaces developed and enabled by Neemb LLC that permits You to access certain data provided by the Service. API documentation can be accessed by contacting support.
Beta Program: means a testing program of new features and/or any other beta that Neemb LLC may offer from time to time. The duration and fees related to a Beta Program are at Neemb LLC’s discretion.
Confidential Information: means all information (in written, graphic, oral or other tangible or intangible form) disclosed by Neemb LLC to You which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Neemb LLC’s security policies and procedures, any scientific or technical information, invention, design, device, process, compilation of information, record, specification, procedure, formula, improvement, technology, code, software code, hardware or method, any concepts, reports, data, know how, works in progress, product developments, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, financial information, customer information, and trade secrets shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to You at the time of disclosure by Neemb LLC; (b) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; (c) was or is independently developed by You without use of Neemb LLC’s Confidential Information; or (d) is required to be disclosed pursuant to a valid court order, so long as it is disclosed under seal.
Contracting Party: means Neemb LLC, a Delaware incorporated Limited Liability Company.
Data on Demand: means the Neemb LLC Data on Demand service, and the applicable Software, Service Data, updates, and documentation associated therewith.
Data Protection Law : means all legislation and regulations relating to the protection of personal data, including (without limitation), the Data Protection Acts 1988-2018, as amended, revised, modified or replaced from time to time; the General Data Protection Regulation (Regulation (EU) 2016/679); and all other statutory instruments, industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by a relevant Data Protection Commissioner relating to the processing of personal data or privacy or any amendments and re-enactments thereof.
Form: means any of Our generated service order forms, statements of work, or agreements executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the Service Plan applicable to Your subscription to the Service.
Party: means any party to these Terms, including You, Your Agents, and/or Neemb LLC.
Personal Data: means personal data as defined under the applicable Data Protection Law.
Platform: means any platform or software service provided to You by Neemb LLC which You sign up to online through the self-service sign up functionality on the Site. This definition excludes any professional services or data services, such as Data on Demand.
Process: means any operation or set of operations performed upon Personal Data, whether or not by automatic means, as defined in the applicable Data Protection Law. " Processes" and "Processing" shall be construed accordingly.
Service: means any service provided to You by Neemb LLC, as applicable, that You have purchased or to which You have subscribed, whether made available to You on a trial, beta, free, or paid basis.
Service Data: means all data extracted from any website by You or Your Agents through a Neemb LLC Service, including data received through web scraping or crawling, software or platform services, API, or other mechanisms through the Service.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith for the Service, as applicable, to which You subscribe.
Site: means distill.io, as well as any other websites that Neemb LLC operates.
Software: means software provided to You by Neemb LLC (either by download or access through the internet) that allows You or Your Agent to use any function in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to the Neemb LLC Service.
“We,” “Us” or “Our”: means Neemb LLC.
“You”, “Your” or “Subscriber ” means the individual, legal entity or their Affiliate licensing the Software or using Our Service.
Neemb LLC: means Neemb LLC, an Delaware incorporated Limited Liability Company, its subsidiaries, Affiliates, or any of its successors or assignees.
Neemb LLC Automatic Extraction API: means the Neemb LLC Automatic Extraction application programming interface developed and enabled by Neemb LLC that permits You to access certain data provided by the Service.
2. GENERAL CONDITIONS: ACCESS TO AND USE OF THE SERVICE
2.1. License Neemb LLC grants You a limited, revocable, non-exclusive, non-transferable, and non-assignable license to access the Services in accordance with Your Service Plan and to make use of the Service Data for internal intelligence gathering and business purposes and in accordance with applicable laws. The Platform and Software Services are licensed, not sold, and Neemb LLC retains and reserves all rights not expressly granted in these Terms. You expressly acknowledge that Neemb LLC retains all worldwide rights, title and interest in and to the Platform and Software Services, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under the laws of any jurisdiction. You agree not to do anything inconsistent with such ownership, including without limitation, challenging the validity of the licenses granted herein.
- To avail certain service, you may need to create an account. One user can create at most one account. Creating duplicate accounts for one person is not permitted unless exempted in specific cases. Sharing one account between multiple users is not permitted.
- Customers subscribed to the enterprise plan can have an admin account and multiple user accounts. The admin account can create multiple user accounts for their employees. All accounts in the plan will be billed using billing details of the admin account.
2.2. Service Access During the Subscription Term and subject to compliance by You and Your Agents with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to.
2.3. Ownership of Services and Service Data Neemb LLC owns all rights, title, and intellectual property in the Services. All Service Data is presented “as-is” and Neemb LLC disclaims all warranties to the content, data, links, and information presented in the Service Data, including any warranties of merchantability, non-infringement, specifically non-infringement of copyright or other intellectual property rights, and fitness for a particular purpose. The Services do not provide any copyright or permissions to You with regard to use of the Service Data and it is your sole responsibility to determine the lawful use of the Service Data received through any Services.
2.4. Third Party Data All third party Service Data is the property of the respective third parties. You agree and covenant to obtain all rights from owners of such third party Service Data necessary for You to copy, store, link, or display such data.
You should only use the third party Service Data for the purpose that it was intended. If you externally link to or display third party Service Data, you are required to comply with all policies, laws, rules and regulations applicable to such data.
2.5. Your Responsibilities You agree that Your use of the technologies, tools, applications, and products made available from time to time on the Site and through the Services are used solely in conjunction with the extraction of data from publicly accessible websites. In all cases where proprietary, copyrighted, and or confidential data may be included as part or all of the extracted data, you agree to comply with all copyright and/or other intellectual property laws and rules covering such data including, but not limited to, the copying, retention, reproduction and resale of such data. In all cases where Personal Data, may be included as part or all of the extracted data, You agree to comply with the Data Protection Law in all respects. Furthermore, you agree to comply with the Data Protection Laws within any applicable jurisdiction.
2.6. Legal Use It is up to You to determine the legality of the way you use our Services and Service Data. Neemb LLC will never knowingly build or host any data extraction or data import agent that is obviously illegal. You warrant that You will utilize the Services legally and ethically and that You have obtained permission, if necessary, to use the Services on the targeted data source. Neemb LLC reserves the right to refuse service to anyone wishing to use the Services in an illegal manner. Neemb LLC may immediately suspend Your use of the Services if it is contacted by your targeted data extraction source, website, or repository and asked to cease any and all extraction activity. If an action is commenced by any third party arising from any complaint, suit, disagreement or other repercussions resulting from Your use of the Services and/or Service Data, you agree to indemnify and hold Neemb LLC and its parent(s), subsidiaries, affiliates, officers, directors, agents, contractors, and employees, harmless from any claim, loss, expense or demand, including reasonable attorneys’ fees.
2.7. Use Limitations In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to:
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents in furtherance of Your internal business purposes as expressly permitted by these Terms;
- use the Service to process data on behalf of any third party, unless the third party is also subject to these Terms;
- modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks;
- falsely imply any sponsorship or association with Neemb LLC;
- use the Service and/or Service Data in any unlawful manner, including but not limited to violation of any person’s privacy rights under the applicable Data Protection Law;
- use the Service and/or Service Data to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s or entity’s intellectual property rights;
- link, upload, post, email, transmit or otherwise make available any Service Data or other content that you do not have a right to make available under any law, or under any contractual or fiduciary relationships;
- link, upload, post, email, transmit or otherwise make available any Service Data or other content that infringes on any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- use the Service to access, connect to or retrieve data from any third party system, service or sites which are subject to terms of service prohibiting your manner of access to, connection to or retrieval of data from the system, service or site;
- use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components;
- attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service;
- use the Service and/or Service Data to knowingly post, transmit, upload, link to, send or store any content that is unlawful, hateful, abusive, libellous, obscene, discriminatory, or otherwise inappropriate content;
- use the Service to knowingly post, transmit, upload, link to, send or store any viruses, malware, worm, back door, trap door, Trojan horses, time bombs, or any other similar harmful software or other limiting routine (“Malicious Software”);
- create fraudulent accounts; or
- attempt to use the Service in violation of these Terms or any applicable law.
2.8. Prohibit Uses Neemb LLC strictly prohibits using any of the Services or products:
- to generate fraudulent impressions of or fraudulent clicks on your ad(s) or third-party ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots, agents or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software;
- to extract data that is illegal in any state or country where you reside or engage in commercial activity;
- to engage in any other illegal or fraudulent business practice under the laws of any state or country where you reside or engage in commercial activity;
- to extract data from hate-related websites, websites that promote violence, or illegal drug-related websites;
- which violates the terms and conditions of any website or web application;
- to scrape any data from LinkedIn’s website;
- to engage in any action or practice that reflects poorly on Neemb LLC or otherwise disparages or devalues Neemb LLC’s reputation or goodwill; and
- to publish copyrighted and/or other proprietary content in violation of applicable laws and regulations.
Violation of these policies may result in immediate termination of your use of the Services and the Site without notice, and may subject you to state and federal penalties and other legal consequences.
2.9. Agents You are responsible for compliance with the provisions of these Terms by Your Agents and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service to store, access, and/or transmit data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with third parties. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You represent that all information You provide when creating Your Account(s) and Login(s) is true and accurate. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of the features of the Service. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account. Your Login information should not be shared with third parties. We are not liable for any loss due to unauthorized use of Your Login information.
2.10. Suspension In addition to Our rights as set forth below, We reserve the right, in Our reasonable discretion, to temporarily or permanently suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; (c) if We suspect or detect any Malicious Software connected to Your Account or misuse of the Service and/or Service Data by You or Your Agents; or (d) if you breach these Terms, fail to make the applicable payments for Your Service, or create multiple accounts to avail of a free trial.
2.11. Third Party Sites This Site or the Services may link to other websites operated by third parties. We have no control over these linked sites, each of which have separate privacy and data collection practices independent of Neemb LLC. We are not responsible for and do not endorse or accept any responsibility for the availability, content, products, services or use of any third party site, any website accessed from a third party site or any changes or updates to such sites. You acknowledge that you bear all risks associated with access to and use of content provided on a third party site and agree that we are not responsible for any loss or damage you may incur from dealing with such a third party site.
2.12. Beta Program By enrolling in a Beta Program, You agree to participate in product testing. After a Beta Program has ended, You agree to provide feedback about your experience with the Beta Program.
2.13. User Activity You agree that Neemb LLC will not be held responsible for legal liabilities incurred through Your use or misuse of Service Data. You are responsible for all activity occurring under your Account and/or Login (collectively, “User Account(s)”). You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal data. You shall: (i) notify Neemb LLC immediately of any unauthorized use of Your User Account(s) or any other known or suspected breach of security; (ii) report to Neemb LLC immediately and use best efforts to stop immediately any copying or distribution of Service Data or other content or infringement of Neemb LLC technology that is known or suspected by You or Your Agents; and (iii) not impersonate another Neemb LLC user or provide false identity information to gain access to or use the Services.
2.14. Network Connections You are responsible for procuring and maintaining the network connections that connect Your network to the Service. We are not responsible for notifying You or Your Agents of any upgrades, fixes or enhancements to any software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Neemb LLC. We assume no responsibility for the reliability or performance of any connections as described in this Section.
3. CONFIDENTIAL AND PERSONAL DATA
3.1. Confidential Information Subject to the express permissions within these Terms, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each Party may use each other’s Confidential Information solely to exercise their respective rights and perform their respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of their respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
In providing the Service, Neemb LLC will engage entities within the Neemb LLC and other authorized third party service providers, to process Personal Data pursuant to these Terms within the European Economic Area (the “EEA”), the United States and in other countries and territories.
Neemb LLC may also use your email address to send you other messages, including information about the Site, Services, updates, news, events, and special offers. You may opt out of such email by changing your preferences or sending an email to firstname.lastname@example.org
3.3. Data Security Neemb LLC will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Personal Data.
3.5. Personal Data Within Service Data You acknowledge and agree that if any Personal Data is collected, processed and/or transferred by Neemb LLC as a part of the Service Data or otherwise through Your use of the Services, for the purposes of the Data Protection Law and any other applicable data protection law or regulation, You and Neemb LLC are joint data processors and You are the sole data controller .
You are solely responsible for any Personal Data You collect through Your use of the Services, and you shall comply with the Data Protection Law and any and all applicable laws or regulations with regard to the collection and storage of Personal Data.
You warrant and undertake that any collection, processing, transfer and/or use of Personal Data by Neemb LLC arising from Your use of the Services is in compliance with the Data Protection Law and/or the relevant applicable data protection laws. You further warrant that any use of the Personal Data provided to You by Neemb LLC through the Services or collected by You through the Services is in compliance with the Data Protection Law and/or the relevant applicable data protection laws.
Neemb LLC reserves the right to delete, pseudonymize, or anonymize any Personal Data You collect through Your use of the Services or that is provided to You by Neemb LLC at Your request.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Intellectual Property Rights Each Party shall maintain all rights, title, and interest in and to all their respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You and Your Agents to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title, and interest in and to the Service and all hardware, Software, APIs, and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with the Neemb LLC and belong exclusively to the Neemb LLC. The Neemb LLC shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Your Agents, or other third parties acting on Your behalf.
4.2. Code Ownership Unless otherwise provided in a Form, Neemb LLC shall own all rights, title, and interest in any code or other data generated through the Services. Neemb LLC may utilise Service Data, code, content, and all other data from the Services for product development and product training purposes.
4.3. Permissions By using Neemb LLC’s Services, You give us permission to use Your company’s name and/or logo on our website and other marketing materials identifying you as one of our customers. No endorsement or affiliation is implied and your trademarks and copyrights remain your property.
5. BILLING, PLAN MODIFICATIONS, AND PAYMENTS
5.1. Subscription Plan The prices, features, and options of the Neemb LLC Services depend on the Subscription Plan You select. Neemb LLC does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice to You.
5.2. Subscription Charges Unless otherwise indicated on a Form referencing these Terms, all charges associated with Your access to and use of the Service (“Service Charges”) will be billed to You in advance on a one-off, monthly, or annual basis, as determined by Your Subscription Plan, or with respect to any additional Services added to Your Account, at the time such additional Services are purchased, subscribed to, or otherwise deployed. Some Subscription Plans might contain monthly overage fees for use above the plan limitations, and any overage fees shall be charged to you following the period in which the overages occurred.
Your Service Charges or charges for other services indicated on any Form referencing these Terms are payable within Fifteen (15) days of Your receipt of Our invoice or notice to You and for Platform accounts immediately upon receipt of the invoice. If an invoice is not paid within 15 days of receipt, interest shall accrue on the unpaid amount at the rate of 2% per month until the invoice is paid in full and We may suspend or terminate access to and use of the Service by You and Your Agents.
The Service Charges in an invoice will be considered accepted by You unless We are notified of a good faith dispute in writing within ten (10) days of the date of the invoice.
5.3. Service Upgrades If You choose to upgrade Your Service Plan during Your Subscription Term (a “Subscription Upgrade”), any incremental Service Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Service Charges will reflect any such Subscription Upgrades.
5.4. Overage Charges Any overages incurred on Your Subscription Plan in a given period will be charged to You following the period in which the overages are incurred.
5.5. Service Downgrades If You choose to downgrade Your Service Plan during Your Subscription Term (a “Subscription Downgrade”), the Subscription Downgrade will take effect at the beginning of Your next Subscription Term. If You request a Subscription Downgrade in the middle of a Subscription Term, You are not entitled to a pro rata refund or credit. Subscription Downgrades are subject to the terms of Your Subscription Plan and/or the terms within an applicable Form. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Neemb LLC does not accept any liability for such loss.
5.6. Taxes Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Neemb LLC based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
5.7. Credit Card and Electronic Payments If You pay by credit card, PayPal, or certain other payment instruments, the Service provides an interface for the Account owner to input and change credit card information. The Account owner hereby authorizes the credit card issuer to pay the Subscription Charges and authorizes Neemb LLC (or a billing agent acting on Neemb LLC’s behalf) to continue automatically charging the Subscription Charges to Client’s credit card account in advance on a monthly basis, or on a periodic basis in accordance with the terms of Your Service Plan for periodic Subscription Charges. You further understand that the Subscription Charge shall continue to be charged to Your credit card until the Services are properly terminated pursuant to these Terms, or until the balance on Your Account is paid in full, whichever is later. You must provide current, complete, and accurate billing and credit card information to Neemb LLC, and You agree to promptly update your Account information with any changes (for example, a change in Your billing address or card expiration) that may occur.
If payment is not received from Your credit card issuer, You agree to pay all amounts due upon demand. You further agree to pay all costs of collection, including but not limited to reasonable attorney’s fees and costs, on any unpaid outstanding balance. In certain instances, the issuer of Client’s credit card may charge a foreign transaction fee or related charges, which Client will be responsible to pay. Client is responsible for checking with its bank and/or credit card issuer for details regarding any foreign transaction fees or other bank fees. The Account owner will receive a receipt upon each receipt of payment by Neemb LLC. Neemb LLC uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Neemb LLC.
5.8. Modifications We reserve the right to modify Our Services or Site at any time, with or without notice to You. For example, we may add, remove, suspend, or stop a particular feature or functionality. We also reserve the right to charge a fee for any of our additional features at any time.
6. TERM AND TERMINATION
6.1. Term Your Subscription Term commences on the effective date specified in Your Subscription Plan or Form and continues for the initial subscription period specified therein.
6.2. Termination Subject to the provisions within this section, all Subscription Plans, Forms, or other agreements are not terminable by You during the Subscription Term of your agreement with Neemb LLC. Unless otherwise stated in a Form, either Party may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. For Platform users, unless Your Account and subscription to the Service is so terminated, Your subscription to the Service (including any and all additional Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term.
Neemb LLC reserves the right to terminate a Subscription Plan, Form or other agreement within thirty (30) days of the effective date on ten (10) days written notice to You. Neemb LLC will provide a pro rata refund in respect of prepaid Service Charges or other fees.
Either Party may terminate Your Services due to the other Party’s material breach of these Terms, if the breach remains uncured for more than thirty (30) days after receipt of written notice of such breach.
6.4. Refunds and Credits No refunds or credits for Service Charges or other fees or payments will be provided to You if You elect to downgrade or terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete any or all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled.
6.5. Unpaid Subscription Charges If You terminate Your subscription to the Service prior to the end of Your then effective Subscription Term or We effect such termination or cancellation, in addition to other amounts You may owe Neemb LLC, You must immediately pay any then unpaid Service Charges associated with the remainder of such Subscription Term.
6.6. Violation of Terms We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account, or Your and/or Agents’ rights to access and use the Services immediately, and remove, disable and discard any Service Data if We believe that You or Your Agents have violated these Terms or any applicable laws and/or engaged in any fraudulent behavior. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Your Agents, or any other third party for any such modification, suspension, or discontinuation of Your rights to access and use of the Service. Any suspected fraudulent, abusive, or illegal activity by You or Your Agents may be referred to law enforcement authorities at Our sole discretion.
7. DISCLAIMER AND WARRANTIES
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES (INCLUDING WARRANTIES TO THE CONTENT, DATA, LINKS, AND INFORMATION GATHERED THROUGH THE SERVICE), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION, SERVICE DATA, OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
8. LIMITATION OF LIABILITY
8.1. Damages EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NEEMB LLC SHALL ALSO NOT BE LIABLE FOR CONSEQUENTIAL LOSSES IN RELATION TO ANY OF ITS INDEMNITY OBLIGATIONS.
8.2. Third Party Permissions Neemb LLC does not provide You with any rights, license, copyright, or permissions regarding the Service Data accessed through the Services, which may be subject to copyright or other intellectual property protection by third parties. Neemb LLC shall not be held liable for any claims by third parties arising from Your use of the Service Data presented through the Services, nor shall We be liable for any alleged copyright/intellectual property infringement arising from Your use of the Service Data.
8.3. Limitation of Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICE PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR IF YOU ARE USING THE SERVICE FOR FREE OUR AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED $10 USD.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS AGREED TO THESE TERMS RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHT TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
Some jurisdictions do not allow the exclusion and/or limitation of liability in certain circumstances, including but not limited to, exclusion of implied warranties, limitation of liability for incidental or consequential damages, limitation of liability for death or personal injury caused by negligence, or limitation of liability for fraud or fraudulent misrepresentation, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, NEEMB LLC’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.4. Release In the event that You have a dispute with a targeted data source (i.e. website or web application) in relation to the use (or misuse) of any of the Services, you release Neemb LLC and its officers, directors, agents, subsidiaries, joint ventures and employees from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
8.5. No Director and Officer Liability Any claims or damages that You may have against Neemb LLC shall only be enforceable against Neemb LLC and not any of its officers, directors, employees, contractors, representatives or agents.
9.1. Indemnification by Neemb LLC We will indemnify and hold You harmless from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service itself infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). This indemnification provision is limited to IP Claims relating to the Service itself, and does not indemnify You in relation to Service Data and/or Your use of any Service Data obtained by You through the Service. We shall, at Our expense, defend such covered IP Claims and pay damages finally awarded against You in connection therewith, provided that (a) You promptly notify Neemb LLC of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Neemb LLC in connection with such defense therewith.
The provisions of this Section state the sole, exclusive and entire liability of Neemb LLC to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You or Your Agents.
9.2. Indemnification by You You will indemnify and hold Neemb LLC and its agents, affiliates, subsidiaries, directors, officers, employees, contractors, and applicable third parties harmless against any claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities incurred by Neemb LLC arising from any third party claim against Neemb LLC from or related to (a) use of the Service by You or Your Agents in breach of these Terms, (b) Your internal and/or external use of the Service Data, (c) Your extraction of any third party data, (d) Your use of third party data retrieved through the Service, (e) any negligence or wilful misconduct by You; (f) Your extraction, storage, and/or usage of any Personal Data obtained through the Services, (g) Neemb LLC and/or Your collection, processing, transfer and/or use of Personal Data arising from Your use of the Services or (h) matters which You have expressly agreed to be responsible pursuant to these Terms.
10.1. Assignment You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of Neemb LLC or in connection with any merger or change of control of Neemb LLC or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms.
10.2. Entire Agreement These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Neemb LLC with regard to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
10.3. Amendment and Waiver We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Neemb LLC as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
10.4 Construction The headings and captions of this Agreement are inserted only for convenience and identification and are in no way intended to define, limit, or expand the scope and/or intent of this Agreement.
10.5. Severability If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
10.6. Survival Sections 1, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8. 2.9, 3, 4, and 7-13 together with any other provision of these Terms which expressly or by implication is intended to survive termination, shall survive any termination of our agreement. Termination of such agreement shall not limit a Party’s liability for obligations accrued prior to such termination or for any breach of these Terms.
10.7 Force Majeure Except for payment obligations, neither Party shall have any liability for any failure or delay resulting from a condition that is beyond the reasonable control of such Party, including but not limited to an act of God or natural disaster, government action or acts of terrorism, and power failures (“Force Majeure Event”). The affected Party shall notify the other Party of the extent and nature of the Force Majeure Event within a reasonable time and take all reasonable steps to minimize damages and resume performance.
11.RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
All notices to be provided by Neemb LLC to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service to the contact mailing address provided by You on any Form; or (b) electronic mail to the electronic mail address provided for Your Account. You must give notice to Neemb LLC in writing by electronic mail to email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail.
13. GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. The law governing these terms shall depend on Your location.
These Terms shall be governed by, construed, and interpreted in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws. Any dispute, controversy or claim dispute arising out of or related relating to these Terms or any breach of these Terms shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the American Arbitration Association (AAA) and shall be conducted in accordance with the Commercial Arbitration Rules of the AAA. The number of Arbitrators shall be one. The results of such arbitration proceedings shall be binding upon the parties and judgment may be entered upon the arbitration award in any court having jurisdiction thereof. The seat of the arbitration shall be in Delaware. The language of the arbitration shall be English.