Terms of Service
This Natero Service Agreement (this “Agreement”) sets forth the terms and conditions (“Terms of Service”) under which Natero, Inc. (“Natero” or “we”), makes available its customer success platform to the customer (“Customer” or “you”) identified in the attached Service and Pricing Schedule (the “Schedule”). Please read this Agreement carefully. These Terms of Service, including the Schedule, constitute a binding legal agreement between you and Natero as of the Effective Date set forth in the Schedule.
YOU ACKNOWLEDGE AND AGREE THAT BY SIGNING THIS AGREEMENT YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer to that company or other legal entity.
Description of the Service
The Service is an online, cloud-based software application provided by Natero to its customers. The Service collects and tracks certain data and information provided to Natero by users of the Service either directly or through access to services that store data (the data and information provided by Customer to Natero or the Service are referred to herein as the “Customer Data”). The Service enables its users to track and manage tasks driven from the Customer Data, and view custom analytical reports based on the Customer Data. The Service and pricing are more fully described in the Service and Pricing Schedule (the “Pricing Schedule” or “Schedule A”).
Subject to your compliance with the terms and conditions of this Agreement, Natero hereby grants you a non-exclusive license, with no right to sublicense, to use the Service in accordance with this Agreement, and if so provided by Natero as set forth in the Schedule, to copy and install the Natero event collection libraries on any website that you own or control or operate on behalf of a third party for the sole purpose of using the Service in connection with such websites. The foregoing license includes the right to use any documentation and other materials provided by Natero to enable you to use the Natero event collection libraries and to access and use the Service to view analytical reports generated by the Service for such websites.
You will not, nor will you allow any third party to (i) modify, adapt, translate or otherwise create derivative works based on the Service; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the underlying ideas, algorithms, structure or organization of the Service; (iii) rent, lease, sell, assign, distribute or otherwise transfer rights in the Service or offer the Service on a timesharing, service bureau or hosted service basis; or (iv) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Service or any such Natero event collection libraries. You will comply with all applicable laws and regulations in your access to and use of the Service or any such Natero event collection libraries.
User Account Registration
Each user of the Service must register to create a user account (“User Account”). To create a User Account, a user must provide a name and email address to Natero and establish a username and a password. Each user will provide accurate, current and complete information during the registration process. Each user is responsible for safeguarding his or her password. Each user agrees to be responsible for any activities or actions under his or her User Account, whether or not such user has authorized such activities or actions, including cases where the user has disclosed his or her password to a third party. By signing up for the Service, Customer agrees that Natero may send occasional emails relevant to Customer’s use of the Service.
Use of Customer Data
As between the parties, Customer owns and shall retain all right, title and interest in and to the Customer Data, provided that Natero shall have the right to use the Customer Data to provide the Service and perform its obligations under this Agreement. Without limiting the foregoing, Customer shall have the exclusive right to use all Customer Data and all reports based on Customer Data generated by the Service. Natero may: (i) use any or all Customer Data internally as needed to troubleshoot issues or improve the Service; and (ii) use, for its internal purposes, statistics collected about how Customer Data is used with the Service, but only so long as such uses do not allow any third party to access any such Customer Data.
The Service and Event Collection Libraries that may be provided by Natero are protected by copyright, trademark, and other laws of the United States and foreign countries. Natero, and its licensors, exclusively owns all right, title and interest in and to the Natero Service and any such Natero event collection libraries, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service and any such Event Collection Library.
As used in this Agreement, the term “Confidential Information” means all confidential information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include all Customer Data, regardless of whether such Customer Data is marked or otherwise identified as Confidential Information. The Confidential Information of each party shall include any business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Natero shall treat all Customer Data that includes information relating to private persons in accordance with the requirements of applicable law. Without limiting the foregoing, Natero shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all Customer Data. Natero shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” section below or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Service and prevent or address Service or technical problems, or at Customer’s request in connection with customer support matters.
Term, Termination and Account Cancellation
The Term during which the Service will be provided to you is set forth in Schedule A. Customer may terminate this Agreement and the Service provided hereunder, with or without cause, upon 30 days prior written notice. Upon any expiration or termination of this Agreement, Customer’s Account will be cancelled and Customer must promptly cease any further use of the Service. Following any termination or expiration of this Agreement, Natero shall, as directed by Customer, return or destroy all Customer Data submitted by Customer. All provisions of this Agreement not specifically related to the mechanics of providing the Service shall survive.
Representations and Warranties
Natero hereby represents and warrants to Customer that: (i) Natero possesses the requisite expertise, knowledge, and skills necessary to perform and deliver the Service and the Event Collection Libraries in accordance with the terms and conditions of this Agreement; (ii) Natero has and will continue to have all rights, approvals, authorizations and/or licenses necessary to provide the Service, the Event Collection Libraries and any associated maintenance and/or support services; (iii) the Service and the Event Collection Libraries shall conform to the applicable specifications, performance standards and criteria, user documentation and manuals, and the terms and conditions of this Agreement; (iv) (a) neither the Service or the Event Collection Libraries, nor any use of the Service or the Event Collection Libraries shall violate, infringe upon, or constitute misappropriation of any patent, copyright, trade secret, trade name, or other intellectual property rights, moral rights, or proprietary rights of any third party, or breach any contract by which Natero is bound, (b) the Service and the Event Collection Libraries are not the subject of any allegation or claim that, if true, would conflict with Natero’s obligations under this Agreement, (c) the Service and the Event Collection Libraries are not subject to any agreements or licenses to or from third parties that impose any obligations on Customer beyond Customer’s obligations under this Agreement, and (d) Natero has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer to a third party any right, title or interest in or to any technology or intellectual property right that would conflict with Natero’s obligations under this Agreement; and (v) the Service and the Event Collection Libraries do not contain any viruses or any other contaminants (including codes, commands, instructions, devices, techniques, bugs, web bugs, or design flaws) that may be used to access, alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, inhibit, interfere with Customer’s use of or shut down the Service, the Event Collection Libraries, or Customer’s (or its customers’) computer systems, websites, databases, software, or other information, services or property.
Natero shall comply with any and all applicable laws, statutes, rules, and regulations with respect to its respective obligations and performance under this Agreement.
EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT, THE SERVICE AND EVENT COLLECTION LIBRARIES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NATERO DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR APPLICATION AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NATERO MAKES NO WARRANTY THAT THE NATERO EVENT COLLECTION LIBRARIES OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NATERO OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Natero shall indemnify, defend and hold Customer and its affiliates, directors, officers, employees and agents (the “Customer Indemnified Parties”) harmless from and against any and all losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) (“Liabilities”) arising out of or in connection with (i) any breach or alleged breach of any of the representations or warranties made by Natero hereunder, (ii) any allegation that Customer’s use of or Natero’s provision of the Service or any of the Event Collection Libraries infringes or misappropriates the intellectual property rights of a third party, (iii) any breach by Natero of its obligations under the Confidential Information section or any of the Data Security Measures; or (iv) any violation of applicable laws, rules or regulations by Natero, the Service or the Event Collection Libraries.
Should Customer’s right to use the Service or any of the Event Collection Libraries pursuant to this Agreement be subject to a claim of infringement or if Natero reasonably believes such a claim of infringement may arise, Natero may, at its option and expense (i) procure for Customer the right to continue to access and use the Service and the Event Collection Libraries; (ii) modify the Service and/or the Event Collection Libraries to render them non-infringing but substantially functionally equivalent to the Service and/or the Event Collection Libraries prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then Natero may terminate this Agreement and refund to Customer any amounts pre-paid by Customer for the Service and the Event Collection Libraries.
Customer shall indemnify, defend and hold Natero and its affiliates, directors, officers, employees and agents (the “Natero Indemnified Parties”) harmless from and against any and all Liabilities arising out of or in connection with any violation of applicable laws, rules or regulations by Customer in its collection and disclosure of personally identifiable information to Natero in connection with the Service or the Event Collection Libraries. Notwithstanding the foregoing, Customer shall have no liability under this paragraph for any collection, use or disclosure of personally identifiable information done by Natero, the Service or the Event Collection Libraries, all of which shall be the responsibility of Natero.
You agree to defend, indemnify, and hold Natero, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or relating to: (i) your use of or access to the Natero event collection libraries or the Service: (ii) your breach of this Agreement; or (iii) your violation of applicable laws, rules or regulations in connection with your use of the Service.
Limitation of Liability
EXCEPT FOR (I) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) NATERO’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (III) ANY BREACH OF THE CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL), OR FOR THE COST OF PROCURING ALTERNATE OR SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE EVENT COLLECTION LIBRARIES OR THE SERVICE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR (I) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) NATERO’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (III) ANY BREACH OF THE CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT IN EXCESS OF THE GREATER OF FIFTY THOUSAND U.S. DOLLARS ($50,000) OR THE FEES PAID TO NATERO DURING THE TERM OF THIS AGREEMENT.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Natero used herein are trademarks or registered trademarks of Natero. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the federal or state courts located in the Northern District of California and each of the parties hereto consents to the personal jurisdiction and venue in such courts.
This Agreement constitutes the entire and exclusive understanding and agreement between Natero and you regarding the Event Collection Libraries and the Service, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Natero and you regarding the Service.
Neither party may assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by either party to assign or transfer this Agreement, without the required consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, will be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after overnight delivery, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (with a hard copy sent by mail), to the other party’s address listed in the introductory paragraph of this Agreement (or such other address as a party may designate).
The failure of either party to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Natero. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
If you have any questions about this Agreement, please contact Natero at firstname.lastname@example.org.