Legal Terms and Conditions
NOTE: IF LICENSEE HAS SIGNED A SEPARATE AGREEMENT WITH NSFOCUS FOR THE PRODUCTS AND SERVICES COVERED BY THIS AGREEMENT, THE TERMS OF SUCH SIGNED AGREEMENT SHALL GOVERN.
YOU SHOULD CAREFULLY READ THE FOLLOWING MASTER TERMS AND CONDITIONS (“TERMS”) BEFORE INSTALLING AND/OR USING THE PRODUCTS OR SERVICES, THE USE OF WHICH ARE LICENSED BY NSFOCUS (AS DEFINED IN SECTION 11.7) AND ITS AFFILIATES (“NSFOCUS”) FOR USE ONLY AS SET FORTH BELOW. INSTALLING OR OTHERWISE USING ANY PART OF THE PRODUCTS OR RECEIVING SERVICES INDICATES THAT YOU, ON BEHALF OF YOURSELF AND ANY ENTITY BY WHOM YOU ARE EMPLOYED OR FOR WHOM YOU ARE USING THESE PRODUCTS OR SERVICES (“LICENSEE”) ACCEPTS THE TERMS OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT AND THAT “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT OR DO NOT HAVE THE AUTHORITY SPECIFIED ABOVE, DO NOT INSTALL OR OTHERWISE USE THE PRODUCTS OR SERVICES AND RETURN THE UNUSED PRODUCTS TO NSFOCUS OR THE RESELLER WHERE YOU OBTAINED THEM.
1.2 “Appliance(s)” means the hardware device containing the Software as specified in the Order.
1.3 “Confidential Information“ means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to the terms of this Agreement and any pricing. The Software, Documentation, Deliverables, and all proprietary information embedded in the Appliance, is the Confidential Information of NSFOCUS, regardless of marking.
1.4 “Deliverables” means all training materials and results of Professional Services provided by NSFOCUS to Licensee pursuant to a Statement of Work (excluding any Licensee Confidential Information).
1.5 “Documentation” means the description of the Software and Appliance provided by NSFOCUS to Licensee and the user manuals relating to their use that are provided on-line at the time of Licensee’s purchase or license, embedded in the Software, or delivered with the Software or Appliance.
1.6 “Open Source Software” or “OSS” means software components that are licensed under a license approved by the Open Source Initiative (“OSI”) or similar open source or freeware license and are embedded in or provided with the Products.
1.7 “Order” means an order that includes a description of Products and Services to be licensed or purchased by Licensee.
1.8 “Products” means the Software, Documentation, and Appliance specified in the Order and any Updates thereto.
1.9 “Professional Services” means those training and implementation services which may be provided by NSFOCUS as described in a SOW.
1.10 “Reseller” means a third-party authorized by NSFOCUS to resell or sublicense Products and Services directly to Licensee.
1.11 “Services” means Support and Professional Services.
1.12 “Software” means NSFOCUS’s proprietary software program(s) described in the Order, in binary or object code form, and any Updates thereto.
1.13 “Statement of Work” or “SOW” means a mutually agreed upon description of the Professional Services to be provided by NSFOCUS which is attached to an Order.
1.14 “Support” means NSFOCUS’s standard support services which are available for the Products as specified by NSFOCUS from time to time.
1.15 “Updates” means releases and error corrections to the Products that are generally provided by NSFOCUS to customers receiving Support at no additional charge. Updates do not include releases, improvements, or enhancements for which NSFOCUS charges separately or extra as determined by NSFOCUS in its sole discretion.
2.1 License Grant. Subject to Licensee’s compliance with these Master Terms, NSFOCUS hereby grants Licensee a personal, non-exclusive, non-transferable license during the term specified in the Order, without the right of sublicense, to use the Software and Appliance in accordance with the Documentation in the quantities specified in the Order, for Licensee’s own internal business purposes.
2.2. Restrictions. Except for the limited license rights expressly granted in Section 2.1, NSFOCUS reserves all rights in and to the Products. Except as expressly permitted herein, Licensee shall not: (a) reproduce, modify, translate or create any derivative work of all or any portion of the Products, (b) sell, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Product to a third party, (c) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Product (other than the Open Source Software) except to the extent expressly permitted by law, (d) remove, alter, cover, or obfuscate any copyright, trademark or other proprietary rights notices placed or embedded on or in the Products, (e) unbundle any components of the Software, (f) access a Product for the purpose of building a competitive product or service or copying its features or user interface, (g) use the Products to scan unauthorized computer systems or exploit the vulnerability scanned by the Products to intrude into unauthorized computer systems, or grant access to the vulnerability information scanned by the Products to any third party, or (h) cause or permit any third party to do any of the foregoing. In addition, Licensee shall not use the Products for the benefit of any third party, including but not limited to as an application service provider, for third-party training, or time-sharing or service bureau use. Notwithstanding the foregoing, Licensee may make a reasonable number of copies of the Software and Documentation for backup purposes, provided that such copies include all copyright and other intellectual property rights notices that appear on the original. If Licensee is a European Union (“EU”) resident, information necessary to achieve interoperability of the Products with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available from NSFOCUS upon written request. If Licensee sells, leases, lends, rents, transfers, or otherwise distributes an Appliance to a third party, Licensee will ensure that it erases all copies of the Software from such Appliance.
2.3 Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to Licensee under such OSS’s own applicable license terms, which can be found (a) in the open_source_licenses.txt file, (b) in the Documentation, (c) in the corresponding source files for the Software, or (d) on NSFOCUS’s website. These OSS license terms are consistent with the license granted in Section 2, and may contain additional rights benefiting Licensee. The OSS license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on Licensee than the applicable OSS license terms.
2.4 Audit. NSFOCUS reserves the right, upon reasonable prior notice to Licensee and during Licensee’s normal business hours, to audit Licensee’s use of the Products to verify compliance with this Agreement. Any such audit shall be performed by NSFOCUS or its authorized representative, shall not take place more than once per calendar year, and shall be done in a manner to minimize disruption to Licensee’s business. In the event that any audit reveals noncompliance with this Agreement, including but not limited to use of the Products other than as specified herein, Licensee shall promptly pay NSFOCUS any shortfall plus accrued interest at NSFOCUS’s current rates and shall reimburse NSFOCUS for the reasonable cost of such audit. This does not limit any other remedies that NSFOCUS may have under this Agreement or otherwise.
3.1 Support. Support may be purchased for one (1) year periods. Provided that Licensee has purchased Support, NSFOCUS will provide the Support specified in the applicable Order during the Support term.
3.2 Professional Services. Licensee may purchase Professional Services by executing a SOW with NSFOCUS for such Professional Services. Changes to a SOW are not binding unless and until an amendment to such SOW is executed by both parties.
3.2.1 NSFOCUS hereby provides Customer with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Product. Training Deliverables may be used solely for Licensee’s internal training purposes. Licensee is prohibited from: (a) modifying the training Deliverables, unless otherwise authorized in writing by NSFOCUS or set forth in the applicable SOW; (b) reselling or sublicensing any Deliverables; and (c) utilizing the training Deliverables to replicate or attempt to perform the training itself, unless otherwise authorized in writing by NSFOCUS or set forth in the applicable SOW; and (d) developing or attempting to develop any of the products described in the Deliverables.
3.2.2 Where access to software licensed by third parties is required in order to allow NSFOCUS to perform the Professional Services, Licensee shall be responsible for ensuring that it has appropriate licenses from its vendors sufficient to allow NSFOCUS to perform such Professional Services. NSFOCUS shall only use such third party software in connection with its performance of Professional Services for Licensee.
4. LIMITED WARRANTIES AND DISCLAIMER
4.1. Limited Warranty. NSFOCUS warrants that the Appliance and Software (excluding OSS), as delivered, will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date of delivery to Licensee. NSFOCUS makes no warranty that the operation of the Products will be uninterrupted or error-free, that the Products will meet Licensee’s requirements, or that the Products will operate in combination with hardware or software not provided by NSFOCUS. In the event that the Software does not conform to the above warranty, NSFOCUS’s entire liability and Licensee’s sole remedy shall be for NSFOCUS to: (a) use its reasonable efforts to correct any reproducible error confirmed by NSFOCUS; or (b) at NSFOCUS’s option, to accept return of the non-conforming Software and refund to Licensee the fees paid for such Software. In the event the Appliance does not conform to the above warranty, NSFOCUS’s entire liability and Licensee’s sole remedy shall be for NSFOCUS to provide a repaired or replacement Appliance to Licensee pursuant to NSFOCUS’s then current RMA process. NSFOCUS’s warranty shall not extend to errors that result from: (i) Licensee’s failure to implement any Updates that are provided by NSFOCUS; (ii) use of the Products other than in accordance with the Documentation; (iii) any alterations of or additions or modifications to the Products performed by parties other than NSFOCUS or as authorized by NSFOCUS; (iv) use of the Products in a manner for which they were not designed or outside of the scope of this Agreement; (v) accident, negligence, or misuse of the Products by any party other than NSFOCUS; or (vi) combination of the Products with other products not supplied by NSFOCUS.
4.2 Services Warranty. NSFOCUS warrants that Services shall be performed in a professional manner in accordance with industry standards. NSFOCUS’s ability to successfully perform hereunder is dependent upon Licensee’s provision of timely information, access to resources, and participation. If through no fault or delay of Licensee the Services do not conform to the foregoing warranty, and Licensee notifies NSFOCUS within thirty (30) days of NSFOCUS’s delivery of the Services, Licensee may require NSFOCUS to re-perform the non-conforming portions of the Services.
4.3 Authority. NSFOCUS warrants that it has full power and authority to enter into this Agreement without the consent of any other person or entity.
4.4 Harmful Code. For purposes of this warranty, “Harmful Code” shall include without limitation, any code containing viruses, Trojan horses, time bombs, worms or like destructive code or code that self-replicates or computer instructions, circuitry or other technological means designed to disrupt, damage or interfere with Licensee’s authorized use of the Products or License’s computers and communications facilities or equipment. NSFOCUS represents and warrants that it: (a) incorporates commercially reasonable measures to screen for Harmful Code, (b) has used commercially reasonable efforts, including the installation of industry standard anti-virus software, to ensure that the Products and Deliverables contain no Harmful Code at delivery and (c) uses commercially reasonable efforts to prevent the introduction of such Harmful Code into the Products and Deliverables. The following shall not be deemed Harmful Code: (i) a feature through the user interface that permits a user to access NSFOCUS’s Web site through a browser over the Internet to access Support and/or to register the Products, or (ii) keys that de-activate evaluation copies of the Products after a period of time, making the Products unusable, or (iii) keys which limit the bandwidth for the use of the Products or Deliverables or otherwise prevent the Products or Deliverables from being used other than as specified in the Order.
4.5 Open Source. NSFOCUS represents and warrants that Licensee’s use and operation of the Open Source Software in binary format, as delivered and when used solely for internal use as described in the Documentation, will not require the disclosure, licensing or assignment of Licensee’s proprietary or third-party licensed software under any open source license(s).
4.6 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION 4, NSFOCUS AND ITS LICENSORS PROVIDE THE PRODUCTS, DELIVERABLES AND SERVICES “AS IS” AND EXPRESSLY DISCLAIM ANY WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, DELIVERABLES, OR ANY PART THEREOF OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
4.7 Licensee Warranties. Licensee warrants that (a) it has the authority to enter into this Agreement and to comply with its obligations hereunder, and (b) it shall at all times fully comply with all laws and regulations applicable with respect to the use of the Products, Deliverables, and Services. Licensee remains responsible for (i) any data and the content Licensee makes available to NSFOCUS in connection with this Agreement, (ii) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data, and (iii) backup and recovery of any database and any stored data. Licensee will not send or provide NSFOCUS with access to any personally-identifiable information, whether in data or any other form, and will indemnify and hold NSFOCUS harmless from any claims regarding personally-identifiable data.
5. LIMITATION OF LIABILITY
NSFOCUS AND ITS SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS DISRUPTION, LOST BUSINESS, OR DAMAGE TO SYSTEMS, DATA, OR PROGRAMS ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF NSFOCUS AND ITS SUPPLIERS HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE FOR THE PRODUCTS AND SERVICES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY TO LICENSEE.
6. PROPRIETARY RIGHTS
The Software, Documentation and Deliverables are licensed, not sold. All right, title and interest in and to the Software, Documentation, and Deliverables (excluding any Licensee Confidential Information), and in any ideas, know-how, and programs that may be developed by NSFOCUS in the course of providing Services, including any enhancements or modifications and all intellectual property rights embodied therein (other than Licensee’s Confidential Information), will at all times remain the property of NSFOCUS or its licensors. Licensee hereby acknowledges that the Products, Deliverables, and Services are protected by laws pertaining to intellectual property and proprietary rights in the United States and other countries. Licensee is aware that this Agreement confers only the right to use the Products, Deliverables and Services during the applicable license term specified in the Order. It does not convey any rights of ownership in or to the Software, Documentation or Deliverables.
7.1. Treatment of Confidential Information. By virtue of this Agreement, either party may have access to the other party’s Confidential Information. Receiving Party will protect Disclosing Party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information of like kind, but in no event with less than a reasonable degree of care. Receiving Party will not use or disclose Disclosing Party’s Confidential Information except as permitted in this Section or for the purpose of performing its obligations under this Agreement. Confidential Information may be disclosed only to employees or contractors of Receiving Party with a “need to know” and who are instructed and agree not to disclose the Confidential Information and not to use the Confidential Information for any purpose, except as set forth herein. Receiving Party shall have appropriate written agreements with any such employees or contractors sufficient to ensure compliance with the provisions of this Agreement. Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party provides prompt written notice thereof to the Disclosing Party (to the extent legally permitted) and assistance to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The confidentiality obligations of each party will survive expiration or termination of this Agreement for a period of three (3) years.
7.2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) the Disclosing Party discloses to third parties without restriction on disclosure; (c) is disclosed to the Receiving Party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed by the Receiving Party without use of or access to the Confidential Information of the Disclosing Party; or (e) is previously known to the Receiving Party without a nondisclosure obligation as evidenced by written records.
7.3. Injunctive Relief. It is understood and agreed that notwithstanding any other provision of this Agreement, a breach by either party of Section 7 may cause the other party irreparable damage for which recovery of money damages might be inadequate, and that the other party shall therefore be entitled to seek timely injunctive relief, without posting bond, to protect such party’s rights under this Agreement in addition to any and all remedies available at law.
7.4 Return of Confidential Information. On Disclosing Party’s written request or upon expiration or termination of this Agreement for any reason, the Receiving Party will promptly return or destroy, at Disclosing Party’s option, all Confidential Information of Disclosing Party, in any form or media, and provide a written statement to Disclosing Party certifying the return or destruction of such Confidential Information. Notwithstanding the foregoing, in no event shall NSFOCUS be permitted to request the return of Products or Deliverables, except in connection with the termination or expiration of this Agreement or the applicable license.
8. INTELLECTUAL PROPERTY RIGHT INDEMNITY
8.1 Indemnity. NSFOCUS shall indemnify, hold harmless, and defend Licensee and its officers, directors, and employees from and against all claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising from a claim brought by a third party that the Products, as delivered to Licensee and used as licensed hereunder infringes any (a) copyright, trademark or trade secret of a third party or (b) patent enforceable within the United States, Canada, United Kingdom, Germany, Japan or Singapore. Licensee shall provide NSFOCUS with (i) prompt written notice of any such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action, and (iii) reasonable information and assistance to settle and/or defend any such claim or action at NSFOCUS’s expense. Should the Products become, or in NSFOCUS’s opinion be likely to become, the subject of such a claim, or in the event NSFOCUS wishes to minimize its potential liability hereunder, NSFOCUS shall, at its option and expense: (i) procure for Licensee the right to continue to use the Products as provided herein, (ii) replace the Products with non-infringing, functionally equivalent products; or (iii) suitably modify the Product so that it is not infringing. In the event that none of the foregoing can be achieved using reasonable efforts, then NSFOCUS, at its option, may terminate the licenses for the affected Product (or portion thereof) and refund the fees paid for such Product (or portion thereof) to Licensee, amortized over a three (3) year period on a straight-line basis.
8.2 Exclusions. NSFOCUS shall have no obligation with respect to any claim, action or proceeding to the extent arising from: (a) modification of the Products by anyone other than NSFOCUS or its Resellers, (b) use of the Products in combination or conjunction with any equipment, data, devices or software not provided by NSFOCUS wherein the absence of such combination the applicable Product would not have been infringing, (c) use of a Product in a manner other than for which it was intended or outside the scope of this Agreement, or (d) use of other than the then-most current release of the Software if such infringement or claim would have been prevented by the use of such current release.
THE PROVISIONS OF THIS SECTION 8 SET FORTH NSFOCUS’S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. TERM AND TERMINATION.
9.1. Term. This Agreement shall continue in effect until terminated.
9.2. Termination for Cause. Either party will have the right to terminate this Agreement if the other party (a) fails to perform any material obligation and fails to cure such breach within thirty (30) days after notice of breach is given, (b) ceases to function as a going concern or to conduct operations in the normal course of business or (c) has a petition filed by or against it under any state, federal or national bankruptcy or insolvency law, which petition has not been dismissed or set aside within sixty (60) days of its filing.
9.3. Effect of Termination or Expiration. Upon termination or expiration of this Agreement or applicable license term, Licensee shall immediately cease using the Confidential Information, Products and Deliverables provided under this Agreement and/or the applicable Order and within thirty (30) days thereafter, return to NSFOCUS or destroy all copies of the Confidential Information, Products and Deliverables (including copies in any storage media), and provide written confirmation thereof. This requirement applies to all copies in any form, partial or complete, and whether or not merged into other materials.
9.4. Survival. The obligations contained in the following Sections will survive termination of this Agreement for any reason: Sections 2.2, 2.3, 2.4, 4.6, 5, 6, 7, 8, 9 and 11.
Licensee agrees that NSFOCUS may identify Licensee as a customer of NSFOCUS in NSFOCUS’s marketing materials and on NSFOCUS’s website. NSFOCUS may not issue any press release using Licensee’s name or logo without Licensee’s prior written consent, such consent not to be unreasonably withheld.
11.1. Assignment. This Agreement may not be assigned by Licensee, by operation of law or otherwise, without the prior written consent of NSFOCUS, such consent not to be unreasonably withheld.
11.2. Legal Expenses. In any action to enforce this Agreement, the prevailing party shall be entitled to seek recovery of all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
11.3. Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. The parties further agree to negotiate in good faith a valid and enforceable provision that most nearly effects the parties’ intent and to be bound by the mutually agreed substitute provision.
11.4. Force Majeure. Except for the obligation to make payments, neither party shall be responsible for any delay in its performance due to causes beyond its reasonable control.
11.5. Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. The parties further agree to negotiate in good faith a valid and enforceable provision that most nearly effects the parties’ intent and to be bound by the mutually agreed substitute provision.
11.6. Amendment and Waiver. Any provision of this Agreement may be amended or modified and the observance of any provision of this Agreement may be waived (either generally or any particular instance either retroactively or prospectively) only with the written consent of both parties. In no event will the parties’ execution of an Order be deemed an amendment, modification, or waiver of this Agreement. The failure of either party to enforce, or the delay by either party in enforcing, at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of such party thereafter to enforce any such provisions.
11.7. Parties, Governing Law and Jurisdiction. The “NSFOCUS” entity that Licensee is contracting with under this Agreement, the law that will apply in any claim arising out of or in connection with this Agreement, and the exclusive venue to adjudicate any such claim, shall depend on where Licensee is domiciled as follows:
11.8. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered by hand, (b) by registered or certified mail, postage prepaid, return receipt requested, five (5) days after deposit in the mail, (c) by overnight courier upon written verification of receipt, or (d) by confirmed fax upon receipt. All notices must be sent to the address set forth in the applicable Order, with a copy sent to NSFOCUS at 690 N. McCarthy Blvd, Suite 170 Milpitas, CA 95035, Attn: VP, Finance and International Business.
11.9. Relationship of the Parties. The parties agree and acknowledge that the relationship of the parties is in the nature of an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither party is the other’s agent, partner, employee, or representative. Neither party shall have the right to obligate or bind the other party in any manner whatsoever and nothing herein shall give or is intended to give any rights of any kind to third persons.
11.10. Government Rights. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software or Documentation by the U.S. Government or other government entity shall be governed solely by the terms of this Agreement.
11.11 Export Compliance. Licensee acknowledges and agrees that the Products, Deliverables and related technology subject to this Agreement are subject to the export control laws and regulations of the United States, the European Union and other countries including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. Licensee agrees to comply with all such laws and regulations. Licensee shall promptly advise NSFOCUS in writing of any known or suspected sale, transfer, or diversion in violation of the foregoing.
11.12 Language. The original of this Agreement is in English and Licensee waives any right to have it written in any other language.
11.13. Entire Agreement. This Agreement constitutes the entire, final, exclusive agreement between the parties and supersedes all previous agreements or representations, oral or written, relating to the subject matter of this Agreement.
1. DEFINITIONS. Capitalized terms have the meanings given to them below, or if not defined below, then the meanings given to them in the Terms.
“Cloud Services”means those NSFOCUS’s Software as a Service (SaaS), Cloud computing services, and other similar services which are made available from time to time on a subscription basis.
“Data” means any information of Licensee or its Users which is served or diverted through the Cloud Services.
Documentation” means NSFOCUS’s online user guides, documentation, and help and training materials, as updated from time to time, accessible at NSFOCUS.com, or login to the applicable Cloud Service.
“Platform” means the global NSFOCUS Cloud platform, including network, virtualization, domain name functionality and the NSFOCUS Cloud Portal (https://portal.nsfocus.cloud) through which the Cloud Services are provided.
“Service Description” means NSFOCUS’s then-current description of the features, functionality and/or operation of the Cloud Services. NSFOCUS may modify or amend a Service Description upon written notice to Licensee (which may be via posting on NSFOCUS’s website or Platform), provided such modifications or amendments shall not have a material adverse effect on Licensee’s use of the Service.
“Service Term” means the period that the Cloud Services are authorized for use as identified in the Order.
“User” means Licensee’s employees or contractors that have been given the necessary access rights to use the Cloud Services as described herein.
2. CLOUD SERVICES TERMS.
2.1 License Grants. Subject to the Terms and these TOU, NSFOCUS grants to Licensee during the Service Term, a non-exclusive, non-transferable license to access and use the Cloud Services via the Platform for Licensee’s own internal use, consistent with the usage parameters and any territory or other restrictions as set forth in the applicable Order. Licensee grants NSFOCUS and its Affiliates a worldwide, limited-term license to host, copy and transmit Data as reasonably necessary for NSFOCUS to provide the Cloud Services. Licensee grants NSFOCUS a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, nontransferable (except as specified herein), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Cloud Services, any suggestions, enhancement requests, recommendations or other generic feedback (excluding any Data or Confidential Information which may be provided in connection with Support requests or use of the Cloud Services) provided by Licensee or any User relating to the operation of the Cloud Services. The Cloud Services are not designed nor intended for use in: (i) the design, construction, operation or maintenance of any nuclear facility; (ii) navigational or operating aircraft; or (iii) operating life-support or life critical medical equipment, and NSFOCUS disclaims any license right as well as any express or implied warranty of fitness for such uses. NSFOCUS MAKES NO REPRESENTATION OR WARRANTY REGARDING COMPLIANCE WITH SPECIFIC LAWS OR GOVERNMENTAL REGULATIONS IN PROVIDING THE CLOUD SERVICES.
2.2 Forwarded Data. The Cloud Services may operate by forwarding certain portions of the Data (“Forwarded Data”) to NSFOCUS owned or controlled servers in the United States and other countries. Licensee represents and warrants that Licensee: (i) is legally permitted and authorized to access, and to provide NSFOCUS with access to, the Forwarded Data and agrees to provide NSFOCUS with evidence of such authorization upon request; (ii) is responsible for deciding if and how Licensee use the Cloud Services; and (iii) will use the Cloud Services only in a legal manner. In the event of any breach of this representation and warranty, NSFOCUS may, without prejudice to its other rights, disallow any Forwarded Data or use of the Cloud Services until Licensee can show to NSFOCUS’s reasonable satisfaction, that any such breach has been cured. In addition, specific Cloud Services may require Licensee to execute an “Opt-In” form permitting additional Data to be forwarded to NSFOCUS for processing. Any such executed “Opt-In” form shall be added as a schedule to the Agreement.
2.3 Acknowledgement. The Cloud Services are designed to identify, block and/or remove applications, data, messages and files that may compromise productivity or the performance and security of Licensee’s networks. While NSFOCUS uses reasonable efforts to properly identify applications and files for detection, given the nature and volume of malicious and unwanted electronic content, NSFOCUS cannot guarantee that the Cloud Services will properly detect or clean all applications, data and files that are malicious or that Licensee does not use or want. Licensee acknowledges and accepts the risk that the Cloud Services may cause welcome as well as unwelcome files, email or URLs or other web content to be screened and blocked and that rejected files or data may not be recoverable. To improve its products, NSFOCUS may also upload information periodically about Cloud Service usage, detected malware or potentially unwanted files and use service traffic to improve its databases and heuristics. NSFOCUS owns all right, title and interest in and to any intellectual property or work product resulting from its use and analysis of such information.
3. ORDERING AND SERVICE START DATE
3.1 Ordering. Licensee may purchase Cloud Services by executing an Order and any supplemental terms applicable to such Cloud Services. Each Order shall be subject to the Terms, these TOU and the applicable Service Description. Licensee shall provide NSFOCUS with all information requested in the Order and any other information or access required by NSFOCUS in order to implement and provide the Cloud Services. Licensee is responsible for the accuracy of information contained in Orders. The Service Description may set forth terms and conditions with respect to such Cloud Services that are different from or in addition to those set forth in these TOU. In the event of a conflict between the provisions of the Service Description and these TOU, the terms of the Service Description shall control with respect to such Cloud Services.
3.2 Service Term. The Service Term shall commence on the Subscription Start Date (as defined below). After the expiration of the initial Service Term, the Service Term shall automatically renew for an additional twelve (12) month period unless either party gives the other sixty (60) days prior written notice of its intention not to renew or until the parties agree in writing on a different Service Term. Upon completion of implementation and testing of the Cloud Service, NSFOCUS will send a notification by electronic mail to Licensee’s contacts designated in the relevant Order confirming that the Cloud Services are ready for use. The acceptance date for the Cloud Services shall be the earlier of (i) two (2) business days after the date of the notice from NSFOCUS, (ii) the date on which Licensee notifies NSFOCUS of its acceptance of the Cloud Services, or (iii) the date on which Licensee begins using the Cloud Services other than for testing. Unless Licensee notifies NSFOCUS in writing within such two business day period that the Cloud Services are not functioning in accordance with the Service Description, Licensee shall be deemed to have accepted the Cloud Services. The Service Term for the Cloud Services and billing shall commence on the earlier of (i) thirty (30) days following receipt of the Order (ii) the date the Cloud Services have been accepted or is deemed accepted (the “Service Start Date”). Licensee’s failure to (i) provide the information reasonably necessary for NSFOCUS to provision the Cloud Services or (ii) provide the connectivity and materials required for its use of the Cloud Services shall not delay the Service Start Date.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES.
4.1 Provision of Service. NSFOCUS shall use commercially reasonable efforts to make the Cloud Services available to Licensee on a 7x24x365 basis during the Service Term, except for: (i) planned downtime (of which NSFOCUS shall give advance electronic notice as provided in the Service Description), and (ii) any unavailability caused by circumstances beyond NSFOCUS’s reasonable control, including, for example, force majeure events, Internet service provider failure or delay, a non-NSFOCUS application.
4.2 Ownership Rights. All Intellectual Property Rights and all other rights in or related to the Cloud Services and the Platform, shall belong to NSFOCUS or its licensors and nothing contained in this Agreement will give Licensee any right, title or interest in any of them, except for the limited licenses expressly set out in the Agreement. Licensee retains all right, title and interest in and to the Data and NSFOCUS has no right, title or interest in any Data. Licensee acknowledges that NSFOCUS will retain all right, title and interest to transactional and performance data (but not to Data) related to use of the Cloud Services which NSFOCUS may aggregate and collect in such a way as to not allow identification of Licensee or any User for its business purposes (including software use optimization) provided that such use does not reveal the identity of Licensee or any User or specific use characteristics that may be identified to Licensee or its Users.
4.3 Licensee Obligations. Licensee agrees to not and shall not permit or authorize any third parties to: (i) resell, sublicense, lease, time-share or otherwise make the Cloud Services available to any third party other than Users; (ii) use the Cloud Services to upload, send or store infringing, defamatory, offensive, abusive or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) modify, copy or create derivative works based on the Cloud Services; (iv) decompile, disassemble or reverse engineer any software used by NSFOCUS in providing the Cloud Services (including the Platform); or (v) access the Cloud Services for the purpose of building a competitive product or service or copying its features or user interface. Licensee will provide NSFOCUS with access to its facilities and information as reasonably necessary for NSFOCUS to provision test and maintain the Cloud Services. In addition, Licensee shall notify NSFOCUS of any changes to Licensee’s systems, networks, applications, equipment, bandwidth, infrastructure or the like which are likely to have an effect on Licensee’s traffic using the Cloud Services.
4.4 Passwords. Licensee acknowledges and agrees that the Cloud Services may not be accessed except by entry of a user specific password. Licensee shall be solely responsible for the security of passwords issued by Licensee to each User. Licensee shall inform NSFOCUS promptly of any known unauthorized access to a password of which it becomes aware. Licensee is entirely responsible for all activity occurring under its Users’ user IDs and passwords and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Cloud Services, including those related to data privacy, international communications and the transmission of technical data. Licensee agrees to promptly notify NSFOCUS of any unauthorized use of Licensee’s accounts or any other breach of security known to Licensee or its Users. NSFOCUS may, in its sole discretion, immediately terminate Licensee’s or its’ Users access to the Cloud Services if Licensee’s conduct or the conduct of its Users fails to conform to the requirements of this Agreement. Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Data. Licensee agrees to defend, indemnify, and hold NSFOCUS harmless from and against any and all claims and liabilities, including reasonable attorneys’ fees, related to or arising from (i) all conduct and activities occurring under Licensee’s User IDs and password; (ii) any defamatory, libelous or illegal material contained within the Data; (iii) any claim or contention that Data infringes any intellectual property or proprietary rights of a third party or violates any third party’s rights of privacy or publicity.
4.5. Data Usage. Data shall not be used by NSFOCUS other than in connection with the provision of the Cloud Services. NSFOCUS will periodically test its systems as part of the Cloud Services for potential areas where security could be breached. NSFOCUS will promptly report to Licensee any breaches of security or unauthorized access to Data on NSFOCUS’s systems that NSFOCUS detects or becomes aware of. NSFOCUS will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner. In addition to its obligations under the Agreement, Licensee shall only submit to the Cloud Services, and use the Cloud Services to collect, store and/or process Data in a manner that is permitted in the applicable Documentation or Order and by applicable laws and government regulations.
4.6 Limited Warranty. NSFOCUS represents and warrants that during the Service Term, the Cloud Services will conform to the description set forth in the applicable Service Description and any applicable Service Level Objectives (“SLAs”) for such Cloud Services in all material respects. Licensee’s sole and exclusive remedy for a breach of the foregoing warranty shall be the receipt of service level credits as specified in the Service Description and SLA. This warranty shall not apply, and NSFOCUS shall not be responsible for its inability to provide the Cloud Services to the extent such failure is due to: (i) third party software, hardware or network infrastructure outside of NSFOCUS’s or its hosting service provider’s data center and not under the direct control of NSFOCUS or its hosting service provider; (ii) failure of the external internet beyond NSFOCUS’s or its third party provider’s network; (iii) electrical or internet access disruptions; (iv) any actions or inactions of Licensee in violation of this Agreement; or (v) attacks (i.e. hacks, malicious introduction of viruses and disabling devices) caused by third parties.
4.7 Data Protection. Licensee acknowledges that NSFOCUS will not be a data controller nor process data for the purposes of the General Data Protection Regulation or any other applicable data protection and privacy laws, regulations and guidelines in relation to the traffic it monitors or scrubs as part of the Cloud Services and that the content of the traffic will not be visible to NSFOCUS. Licensee is responsible for all consents required for NSFOCUS to provide the Cloud Services.
4.8 Right to Subcontract. NSFOCUS’s use of subcontractors for the provision of its hosting environment, network, hosting infrastructure and certain software development related services is not subject to Licensee’s approval.
5. FEES. All fees will be specified in the Order. Billing for Cloud Services will start on the Service Start Date.
6. INDEMNIFICATION FOR CLOUD SERVICES. The provisions of Section 8 of the Terms shall apply to the Cloud Services as if it were Software, except that in the event the licenses for the affected Cloud Services and associated Orders are terminated, NSFOCUS will refund to Licensee any pre-paid but unused fees for the remainder of the Service Term.
7.1 Government Contracting. Where Licensee is the US Government, the following provisions shall apply in addition to those specified in Section 3.4 of the Agreement: The Cloud Services are “Cloud Computing Services” as such term is used in DFAR Subpart -239.76 – Cloud Computing and shall be licensed consistent with such regulations.
7.2 Survival. The provisions of Sections 2.3, 4.2, 4.4, 4.7, and 5-7 shall survive any termination or expiration of Licensee’s use of the Cloud Services.