Terms of Use
Effective May 1, 2024
The AskNicely Terms of Use are entered into by and between AskNicely and the entity agreeing to these Terms or any Order Form or Statement of Work or online purchasing portal governed by these Terms (“Customer”). The Terms govern the Customer subscription and use of AskNicely Services and any Order Form or Statement of Work or online purchasing agreement that references the Terms. If Customer registers for any component of free Services or such is included in any Order Form or Statement or Work or online purchasing portal, the applicable provision(s) of the Terms will also govern those free Services. By (1) Executing an Order Form or Statement of Work that references the Terms, or (2) Using free Services, or (3) Logging into the AskNicely technology platform after clicking a box indicating acceptance, Customer agrees to and accepts the terms and conditions of the Agreement.
These Terms are effective between Customer and AskNicely as of the date of Customer’s acceptance of the Terms. Capitalized terms have the definitions set forth herein.
1. Subscription Services
Unless otherwise provided in an applicable Order Form or Statement of Work, AskNicely Services are offered by subscription. Customer agrees to pay AskNicely any fees for Purchased Services. Customer is responsible for all applicable sales, use, and value-added taxes (other than taxes based on AskNicely’s income). Unless otherwise agreed to by the parties in writing, by accessing AskNicely Services, Customer authorizes AskNicely to charge the credit card or other form of payment held on file for any fees owed by Customer in connection with Customer’s access and use of the Purchased Services. Customer waives any right to receive any additional notice of such pre-authorized charges. In the case of any transaction that is rejected for non-sufficient funds or otherwise fails for any reason, Customer agrees that AskNicely may at its discretion attempt to process the charge again by any method authorized. Customer agrees to update Customers information with AskNicely in the event of any change, including any change to Customers credit card information.
2. Accessing AskNicely Services
a. Customer may access and use the Services in accordance with and subject to the terms and conditions of the Agreement. Subject to the terms and conditions of the Agreement, AskNicely hereby grants to Customer and Customers Users a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to access and use the Services exclusively for Customer’s internal business purposes.
b. By accessing AskNicely Services, Customer agrees: (i) not to distribute, transfer, sublicense, or otherwise make available the Services (or any portion of the Services) to third parties other than Customers Users; (ii) not to use the Services in violation of any applicable law or regulation or AskNicely Acceptable Use Policy, found here Acceptable Use Policy, or any agreement; (iii) not to infringe AskNicely’s rights or to access the Services in a manner that inhibits or restricts other users’ use of AskNicely; and (iv) that Customer will not reverse engineer, decompile, or otherwise attempt to derive the AskNicely code, techniques, processes, algorithms, know-how, or other information embodied in the Services. To the extent the foregoing is prohibited by applicable law, Customer agrees to request reasonable terms before taking any other action.
c. If an individual is accepting the terms and conditions of the Agreement on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates and Users to the Terms, in which case the term “Customer” shall refer to such entity and its Affiliates and Users. If the individual accepting the terms and conditions of the Agreement does not have such authority or does not agree with the terms and conditions herein, such individual must not accept the Terms and the Services may not be accessed or used by the individual, or the Users of the Customer or its Affiliates.
d. The Services may not be accessed for benchmarking or competitive purposes. AskNicely’s direct competitors are prohibited from accessing the Services, except with AskNicely’s prior written consent.
3. AskNicely Services
a. Customer’s Responsibilities when Accessing AskNicely Services. When using AskNicely Services, Customer may provide us with Recipient Data. Customer acknowledges that Customer is solely responsible for the accuracy and quality of any and all Recipient Data. Customer represents and warrants (i) that Customers provision of Recipient Data to AskNicely complies with all applicable privacy or data protection laws and agreements, and Customer will not use AskNicely Services to solicit any information from children under the age of 16; (ii) that Customer will ensure that Customer and AskNicely have the right to collect, use, and share Recipient Data via the Services; and (iii) that Customer will provide adequate notice to, and obtain any necessary consents from, Customers customers with respect to any Recipient Data shared with AskNicely. Customer shall indemnify, defend, and hold harmless AskNicely from and against any and all claims or liability of any kind arising out of a breach of the foregoing warranties.
b. Free Services. AskNicely may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions in this Agreement. Free Services are provided to Customer without charge and any usage over these limits requires Customer’s purchase of additional Services. Notwithstanding any other terms in this Agreement, Customer agrees that AskNicely, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Gree Services may be without prior notice and Customer agrees that Customer is solely responsible for exporting Customer Data from Free Services for which AskNicely will provide Customer up to five (5) days to retrieve its Customer Data. Customer agrees that AskNicely will not be liable to Customer or to any third part for such termination.
c. ALL FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ASKNICELY WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION IS NOT PERMITTED BY LAW IN WHICH CASE ASKNICELY’S LIABILITY SHALL BE LIMITED TO $5,000.00.
4. Term and Termination of The Agreement
a. Subscription Term. The Agreement will continue in effect until terminated as set forth herein. Unless otherwise agreed to by the parties in writing, Customers subscription for AskNicely Services will be for the duration of the Initial Subscription Term and any subsequent Renewal Terms. Unless otherwise stated in an applicable Order Form, the Initial Subscription Term shall be twelve (12) months from the Order Form Effective Date. At the end of the Initial Subscription Term or any subsequent Subscription Renewal Term, the Subscription Term shall automatically renew for a twelve (12) month period (“Renewal Subscription Terms”). If Customer does not wish to renew Customer’s subscription, Customer must provide AskNicely written notice of Customer’s intent not to renew at least 30 days prior to the end of the current Subscription Term. AskNicely reserves the right, at its sole discretion, to increase Fees for any Renewal Term by the greater of (i) 3% of the Fees paid for the then-current license year; or (ii) the increase in the U.S. Consumer Price Index for All Urban Consumers (or applicable national inflation measure if outside the United States) over the prior twelve months, but in no event shall the increase exceed 7% of Fee for the then-current license year. In the event AskNicely elects to implement such a Fee increase, AskNicely will notify Customer no less than sixty (60) days prior to the end of the Initial Term or Renewal Term, as applicable. Such notice may be provided via email, and such notice may be provided in the form of a quote for the pending Renewal Term showing the pending Fee increase.
b. Termination. The Agreement may be terminated (i) by either party if the other party materially breaches the Agreement and does not cure the breach within 30 days after receiving written notice of the breach from the non-breaching party, (ii) as set forth in Section 8a, or (iii) by either party if the other party provides proof that it made a general assignment for the benefit of creditors, suffered or permitted the appointment of a receiver for its business or assets, or availed itself of or became subject to any proceeding under the U.S. Bankruptcy Act or any other foreign or domestic statute, law, rule, or regulation relating to insolvency or the protection of rights of creditors. AskNicely may, in its sole discretion, suspend or terminate Customer’s access to AskNicely Services if it determines that Customer has materially violated any of these Terms, and any suspension or termination related to the foregoing will not relieve Customer of Customer’s payment obligations under the Agreement.
c. Effect of Termination. Upon termination of the Agreement, Customer’s right to access AskNicely Services shall immediately cease. Please note that any data and content Customer has uploaded into AskNicely Services may be deleted from AskNicely systems immediately upon termination of the Agreement or cancellation of Customer’s account. AskNicely is not liable for any loss or damage following, or as a result of, the cancellation of Customer’s account, and it is Customer’s responsibility to ensure that any content or data that Customer requires is backed up or replicated before cancellation.
d. Survival. Sections 3b, 4d, 5, 6, 7, 8c, 9, and 10 shall survive the termination of the Agreement.
5. Intellectual Property
AskNicely (and its licensors or partners, as applicable) retains all ownership rights in and to the Services, all updates and upgrades to the Services, and all other derivative works of the Services, including any suggestions, ideas, feedback, or other information Customer may provide to us relating to the Services. AskNicely may collect and use data derived from Customers use of the Services (“Usage Data”) for its own internal business purposes and may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer or any of its customers.
6. Confidentiality
a. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “Receiving Party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party will be considered Confidential Information of the disclosing party even if not designated or marked as such.
b. The Receiving Party shall not at any time, in any fashion, form, or manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, or corporation in any manner whatsoever, any of the Confidential Information of the Disclosing Party without the express, prior written consent of the Disclosing Party. The Receiving Party shall not use, for its benefit or for the benefit of any third party, any of the Confidential Information of the Disclosing Party, except for the limited purpose of evaluating a potential business relationship between the Parties or in performing their respective obligations pursuant to any subsequent written and signed agreement entered into between the Parties. Notwithstanding the provisions of these Terms, nothing shall prevent AskNicely from using the name of the Customer in marketing materials, unless such consent is specifically denied.
c. The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under the Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The Receiving Party shall not be liable to the disclosing party for the release of Confidential Information if such information (a) was known to the Receiving Party on or before the effective date of the Agreement without restriction as to use or disclosure, (b) is released into the public domain through no fault of the Receiving Party, (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information, or (d) is divulged pursuant to any legal proceeding or otherwise as required by law, provided that, to the extent legally permissible, the Receiving Party will notify the Disclosing Party promptly of such required disclosure and reasonably assist the Disclosing Party in efforts to limit such required disclosure.
d. Except for trade secrets and personal data, unless extended by mutual written consent of both Parties hereto, this Section of the Agreement shall expire five (5) years from the later of: (a) the effective date hereof; (b) upon the termination of the evaluation or pursuit of the purpose set forth herein; or (c) the termination or expiration of any subsequent written and signed agreement entered into between the Parties; provided, however, that the Receiving Party’s obligations with respect to the Confidential Information shall survive. Trade secrets and personal data information will be subject to the terms of this Agreement indefinitely, subject only to the exclusions enumerated herein.
7. Warranty Disclaimer
CUSTOMER ACCEPTS THE SERVICES “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
8. AskNicely Indemnification and Limitation of Liability
a. Indemnity. AskNicely will defend at its own expense any action against Customer or Customers Users brought by a third party to the extent that the action is based upon a claim that the Services infringe or misappropriate any copyright or trade secret rights, and AskNicely will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on (i) Customer notifying AskNicely promptly in writing of such action, (ii) Customer giving AskNicely sole control of the defense thereof and any related settlement negotiations, and (iii) Customers cooperation and, at AskNicely’s reasonable request and expense, assistance in such defense. If the Services become, or in AskNicely’s opinion are likely to become, the subject of an infringement claim, AskNicely may, at its option and expense, either procure for Customer the right to continue exercising the rights licensed to Customer in the Agreement or replace or modify the Services to render them non-infringing and functionally equivalent. If neither of the foregoing options is, in AskNicely’s reasonable opinion, commercially reasonable, AskNicely may terminate the Agreement and will refund to Customer a pro rata portion of any applicable prepaid fees. This Section 8a states AskNicely’s entire liability and Customers sole and exclusive remedy for infringement claims and actions.
b. Exclusions. AskNicely’s obligations set forth in Section 8a shall not apply to the extent a claim arises out of (i) Customers breach of the Agreement, (ii) unauthorized use of the Services, or (iii) third-party components (including in combination with the Services) not provided by AskNicely.
c. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, BOTH PARTIES’ AGGREGATE CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID BY CUSTOMER UNDER THE AGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM, OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS. Notwithstanding any provision of the Agreement to the contrary, neither party excludes or limits its liability for (i) personal injury or death caused by its negligence, (ii) fraud, or (iii) any other liability that may not be lawfully excluded or limited.
9. Privacy
AskNicely’s Privacy Policy describes how we handle Customer Data or data Customer provides to us when Customers use AskNicely Services or access the AskNicely website. AskNicely’s Data Processing Addendum (“DPA”) forms part of this Agreement or other written or electronic agreement, entered between AskNicely, and the entity that is a party to these Terms together with its Affiliates, which have executed the Terms or made online purchases or signed orders (“Customer”), for the provision of certain services defined in the Terms that requires AskNicely to process certain personal data on behalf of Customer.
10. Dispute Resolution
a. A party will not start court proceedings (except proceedings seeking interlocutory relief) unless and until it has complied with this Section. A party claiming that a Dispute has arisen must give the other party Notice of the details of the Dispute in accordance with the Notice provisions described herein. The parties must continue to perform their respective obligations under the Agreement pending the resolution of a Dispute. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of or in relation to or in connection with this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be settled through direct discussions, and as a condition precedent to initiation of arbitration, the parties shall endeavor to settle the dispute by mediation under the Mediation Rules of the AAA before recourse to binding arbitration as described herein.
b. If the Parties are unable to resolve via non-binding mediation within 10 business days, a party may demand that the Dispute be resolved by binding arbitration administered by and in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator (having substantial experience in resolving complex commercial contract disputes) appointed in accordance with the JAMS streamlined arbitration rules. The binding arbitration shall be held in the County of Multnomah in the State of Oregon, or at another location if it can be selected by mutual agreement. The arbitrator will apply the laws of the State of Oregon without regard to its conflict of laws rules.
c. Since a breach of this Agreement will likely cause irreparable harm to the other party, the parties agree that in such event, such party shall be entitled to seek injunctive and other equitable relief in addition to monetary damages and any other remedies, which may be available. Nothing herein will prevent a party, prior to appointment of an arbitrator under the JAMS streamlined arbitration rules, from making application to any court of competent jurisdiction in the County of Multnomah in the State of Oregon, for any provisional remedy available at law or in equity. Such application for relief shall not constitute a waiver of this agreement to arbitrate. Upon appointment, the arbitrator shall have authority to order provisional or interim relief, except that any relief ordered by the arbitrator may be immediately and specifically enforced by the court(s) otherwise having jurisdiction.
d. The parties submit to a court of proper jurisdiction in the County of Multnomah in the State of Oregon for entering the award. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in this Agreement. The arbitration award may grant a reimbursement of the prevailing party of all its fees and expenses, including reasonable attorneys' fees. Otherwise, each party must pay its own costs of complying with this Section. The decision and award rendered shall be final and binding on both parties. Neither party nor the arbitrator(s) may disclose the existence, content, or results of any arbitration proceeding hereunder without the prior written consent of both Parties.
11. Definitions
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b. “Agreement” means collectively this AskNicely Terms of Use and any applicable Order Form or Statement of Work or online purchasing portal.
c. “AskNicely” means Ask Nicely Holdings Inc. or its Affiliate identified in the Order Form or Statement of Work (“AskNicely”), with a place of business at 2175 NW Raleigh St., Suite #110, Portland, OR 97210.
d. “AskNicely Content” means information already owned by AskNicely or information obtained by AskNicely from publicly available sources or its third-party content providers and made available to Customer through the Services or pursuant to an Order Form or Statement of Work or online purchasing portal.
e. “Confidential Information” means, with respect to a party (the “Disclosing Party”), all technical, commercial, financial, organizational, marketing, legal or other information that pertains to such party’s business, including, without limitation, materials, and all documents and other items that record information, whether furnished before or after the effective date of this Agreement, whether or not marked or otherwise identified as confidential, whether is disclosed or otherwise made available directly or indirectly, whether furnished in writing, orally, by means of inspection, on paper, electronically, in machine readable format, by sound or video, or otherwise; property; trade secrets; financial data including pricing and sales information; franchisee names, addresses, telephone numbers, email addresses; franchisee training information; manuals used in the Disclosing Party’s business; job information of work performed by the Company’s independently owned and operated franchises; information concerning software, data, and systems owned or licensed by the Disclosing Party or utilized by the Disclosing Party in its business; business, sales and marketing methods and procedures of Disclosing Party including way of doing business, business results or prospects, business records, business plans, performance, planning, and product roadmaps and documentation; technical information and proprietary software, including software capabilities owned or used by the Disclosing Party; Records, as defined below; electronic claims and job management capabilities; IP rights including copyrighted information owned by the Disclosing Party and trademarks owned or used by the Disclosing Party; forms owned or used by the Disclosing Party; all books, manuals, records, files, forms, reports, accounts and documents relating in any manner to the Disclosing Party’s business or its franchisees and customers; employee information including personal data; customer information including personal data; end user information, including personal data; and including data entered into computer software or databases (the “Records”) and all other non-public or proprietary information disclosed hereunder, whether oral or otherwise.
f. “Customer Data” means information submitted by or for Customer to the Services, excluding AskNicely Content and third-party data and applications.
g. “Dispute” means a dispute, difference, or question arising in connection with the Agreement, including a question as to whether certain services are in scope or not.
h. “Effective Date” means the date the Terms are effective between Customer and AskNicely, the date of Customer’s acceptance of the Terms.
i. “Free Services” means Services that AskNicely makes available to Customer free of charge. Free Services exclude Services offered as Purchased Services.
j. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and AskNicely or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the Terms as if it were an original party hereto.
k. “Purchased Services” means Services that Customer or Customer’s Affiliate purchased under an Order Form or Statement of Work or online purchasing portal which have a fee associated. Purchased Services exclude Services offered as Free Services.
l. “Recipient Data” means data about or relating to Customer’s Users and customers, including their names and any other relevant identifiers, such as account numbers.
m. “Services” means the subscription to AskNicely technology platform (including online, offline, and mobile components) and all other products and services that are ordered by Customer under an Order Form or Statement of Work or online purchasing portal or provided to Customer free of charge.
n. “Statement of Work” means a document specifying a work order for custom services and deliverables with a project timeline to be provided in association with an Order Form.
o. “Terms” means the AskNicely Terms of Use.
p. “Users” means employees, consultants, contractors, agents, and other representatives authorized by Customer to access and/or use the Services on Customer’s behalf for whom Customer has purchased a subscription and to whom Customer (including via AskNicely at Customer’s request) has supplied a user identification and password for access to Services utilizing authentication.
12. General
Each party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The parties are independent contractors with respect to each other, and nothing in the Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. The Agreement controls the actions of all party representatives, officers, agents, employees, and associated individuals. The terms of the Agreement shall be binding on the parties and all successors to the foregoing. Except as otherwise set forth herein, neither party will assign, transfer, or delegate its rights or obligations under the Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of the Agreement must be in a writing that is signed by the parties hereto and expressly references the Agreement. If any provision of the Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Agreement includes any documents agreed to by the parties in writing and all other documents expressly referenced herein. Collectively, the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals or other documents submitted by the parties. The terms on any purchase order or similar document submitted by Customer to AskNicely will have no effect and are hereby rejected. All notices, consents, and approvals under the Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth in the Agreement or as otherwise designated by the parties from time to time, and, if sent to AskNicely, will be sent to its Vice President of Finance.