TERMS & CONDITIONS
Effective Date: November 01, 2017
1.1. Manner of Acceptance. By clicking the acceptance box or button, or ordering NowSecure Services, or accessing the NowSecure Services, you accept and agree to be bound by these Terms and Conditions (“Terms”). If you do not agree to these Terms, then do not order, access, or use the NowSecure Services. The Services are being made available only to persons who are the age of majority and can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not intended to be used by individuals under the age of 18. If you do not qualify, please do not access or use the Services.
1.2. Acceptance by legal entity. If you are accepting these Terms on behalf of a company, a governmental body or other legal entity, you represent and warrant that you have the authority to bind such entity, such entity agrees to be legally bound by the Terms, and neither you nor such entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction. If acceptance is on behalf of an entity, then any reference to the terms “you” and “your” shall mean that entity.
1.3. Scope. These Terms govern your use of the Services. These Terms do not apply to any third-party websites, services, or products (other than those provided directly by NowSecure as part of a Service) referenced in, accessible through, or provided in connection with, the Services (collectively “Third-Party Products”).
1.4. Modified Terms. NowSecure may modify these Terms from time to time by providing notice to you in your Services Account or by email to the Account Owner, and posting a modified version of the Terms with a new Date of Last Revision to the NowSecure Website. The modified Terms will only be effective as to you upon renewal of the term of the Services you ordered, or your purchase of additional Services; provided, however, any Urgent Change in the modified Terms will be effective immediately upon written notice to you in your Services Account or by email to the Account Owner, and posting to the NowSecure Website. An “Urgent Change” means a change to the Terms that: (a) addresses new Services, or features or functionality of existing Services; (b) is required by a third-party provider of NowSecure; (c) is reasonably necessary in order to protect the stability and security of the Services or the systems used to provide the Services; or (d) in the reasonable opinion of NowSecure’s legal counsel, is necessary in order to comply with applicable laws, rules, or regulations. Your continued use of the Services following notice or posting of the modified Terms will mean that you accept and agree to the modified Terms.
1.5. Accounts & Credentials. In order to use the Services, you may be required to establish an Account by registering with NowSecure. You may be required to submit a valid payment card for which you are authorized to purchase Services. You will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your contact and payment card information current at all times. As part of the registration process, you and each End User under your Account will provide NowSecure with a user name and password (“Credentials”) in order to access your Account. NowSecure reserves the right to refuse registration of, or cancel, Accounts it deems inappropriate.
“Account” means the account you establish with NowSecure when first accessing the Services.
“Account Owner” means the individual or entity you identify when the Account is established. The individual registering is designated as the Account Owner by default unless subsequently changed.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, the subject entity. For purposes of this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the subject entity, or the ownership of more than fifty percent (50%) of its voting or equity securities, contract, voting trust or otherwise.
“Beta Services” means new Services, or new features or functionality of an existing Service, that have not been made commercially available.
“Data” means Your Data and all other data, content, software, or other material that you or your End Users submit to, or otherwise use in connection with, the NowSecure Services.
“Documentation” means all Service user guides, documentation, specifications, and support materials, as updated from time to time, that are made available to you by NowSecure.
“Equipment” means all hardware provided to you by NowSecure in connection with your Services Subscription.
“Fees” means the fees to be paid by you to NowSecure as specified in the Order Form.
“Harmful Content” means code, files, scripts, or programs, including viruses, worms, and Trojans, intended to deceive, disrupt, destroy, distort, disable or otherwise do harm, but does not include access control code.
“Integration Application” means a third-party software application not provided by NowSecure that interoperates with the Services.
“NowSecure” means NowSecure, Inc., a Delaware Corporation.
“Online Services” means NowSecure’s SaaS Services, including Automated and Intel.
“Order Form” means an ordering document, schedule, or similar instrument signed by you and NowSecure specifying the Services to be provided by NowSecure.
“Personal Information” means any information that names or identifies a specific individual or from which a specific individual may be identified (excluding IP addresses).
“NowSecure Reports” means the security or vulnerability analysis and reports generated by or provided in connection with the Services, but excluding Your Reports.
“Software” means all software, including any new versions, updates, or revisions thereof, made available to you by NowSecure in connection with the Services.
“Services” means all NowSecure products and services (including NowSecure Reports), and all associated Documentation, made available to you by NowSecure pursuant to an Order Form or under Trial Use, but specifically excluding NowSecure’s professional services which are available only under separate written agreement.
“Subscription” means the right to access and use NowSecure Services for the duration, in the quantity, and at the price specified in an Order Form.
“System Data” means aggregated and anonymized analytics data relating to how the Services are being used and the environment in which they are being used. The term System Data does not include Your Data.
“Trial Use” means any Services made available to you, free of charge, for the purpose of testing or evaluating the applicable Services.
“User” or “End User” means your employees, contractors, and agents who are authorized by you to use the Services.
“Your Data” means all of your proprietary data (including Personal Information), content, software, mobile applications, or other material that you or your End Users submit to, or otherwise use in connection with, the NowSecure Services. Your Data also includes Your Reports.
“Your Reports” means the security and vulnerability analysis and reports generated by the Services on your proprietary mobile applications that you upload to the Services.
“Website” means the NowSecure website located at www.nowsecure.com and related subdomains.
2. RIGHTS & RESTRICTIONS
2.1 Rights Grant. Subject to and conditioned on your payment of all applicable Fees, and your compliance with all of the Terms, NowSecure hereby grants you a limited, non-exclusive, non-sublicensable, and non-transferable (except as otherwise expressly set forth herein) right to access and use the Services identified in your Order Form, for the duration identified in your Order Form, solely for your internal business purposes.
2.2. Restrictions. Except as otherwise expressly authorized by these Terms, you may not: (a) modify, alter, tamper with or make derivative works based upon the Services; (b) copy or reproduce all or any part of the Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, except to the extent that applicable law specifically allows such activities; (d) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics thereof; (e) license, sublicense, sell, resell, distribute, transfer or assign, or otherwise commercially exploit the Services; (f) access or use the Services in a way intended to avoid incurring Fees or exceeding usage limits or quotas; (g) provide any third party with access to the Services; or (h) engage, permit, or otherwise allow any third party to do any of the foregoing.
2.3. Prohibited Uses. You may use the Services solely for your own internal business purposes consistent with these Terms and the applicable Documentation. In addition to the foregoing Restrictions, you agree that neither you nor your End Users or anyone acting on your behalf will: (a) use the Services for any unlawful purpose, or in any manner that would violate the rights of any third party; (b) upload to, or distribute through, the Services any Harmful Content; (c) upload to, or distribute through, the Services any nonpublic personal information (NPI as defined by GLBA), protected health information (PHI as defined in HIPAA), or sensitive personal information such as social security numbers; (d) knowingly interfere with or disrupt Online Services, the data associated therewith or contained therein, or the networks connected thereto; or (e) attempt to gain unauthorized access to the Services or its related systems or networks. If your business (or the entity on whose behalf you are accessing the Services) provides mobile application security assessment or analysis as a product or service, or regularly incorporates information from mobile application security assessment or analysis into its products or services, then you may not access the Services until you receive NowSecure’s separate, express written approval.
3. OUR RESPONSIBILITIES
3.1 Providing the Services. NowSecure will make the Services available to you pursuant to the Terms and the applicable Order Form. NowSecure may from time to time, and at its discretion, utilize its Affiliates or engage third party contractors in connection with providing or maintaining the Services, provided that: (a) any such Affiliate or third party contractor shall be bound by written confidentiality obligations no less restrictive than those contained in these Terms; (b) any such Affiliate or third party contractor may only access Your Data to the extent and for the duration reasonably necessary; and (c) NowSecure shall be directly liable to you, to the extent provided in these Terms, for any breach of these Terms caused by such Affiliate or subcontractor.
3.2 Security Commitment. NowSecure will utilize appropriate technical, physical and organizational security measures and safeguards in connection with the storage, transmission, handling, and processing of Your Data via the Services, and any NowSecure hardware and software used by NowSecure in its performance under these Terms, in order to protect Your Data from unauthorized use, access, and disclosure. Specifically, NowSecure will utilize: (a) adequate physical security of all premises in which Your Data will be processed and/or stored by NowSecure; (b) reasonable precautions with respect to the employment of and access given to NowSecure personnel and any subcontractor engaged by NowSecure in connection with providing the Services to you, including assigning appropriate access privileges to individuals; (c) an appropriate network security program; (d) appropriate access controls and data integrity controls; (e) testing and auditing of all controls; and (f) appropriate corrective action and incident response plans.
3.3. Uptime Commitment. NowSecure’s uptime commitment with respect to Online Services is set forth in Exhibit A – Support and Service Level Agreement (“SSLA”). The SSLA is not applicable to Trial Use Services or Beta Services.
3.4. Standard Support. NowSecure will provide you with its standard support for the Services as specified in the SSLA. Upgraded support terms may be available, and if purchased, will be specified in the applicable Order Form. Support for Trial Use Services will be provided as available, and at NowSecure’s sole discretion.
3.5. Updates to the Services. NowSecure may Update the Services from time to time. The term “Update” means making modifications to any feature or functionality of the Services that are: (a) enhancements to the Services; (b) necessary for the stability or security of the Services or platform through which the services are provided; or (c) in the opinion of legal counsel, reasonably necessary in order for NowSecure to comply with applicable law or third-party restrictions. If an Update removes a material feature or functionality of the Service, NowSecure will use commercially reasonable efforts to inform you of the removal at least thirty (30) days prior to release of the Update, except in the event the Update is being made in connection with subsection (b) or (c) above, in which case NowSecure will notify you within a commercially reasonable period of time after release of the Update.
4. YOUR RESPONSIBILITIES
4.1. Your Software and Equipment. You are responsible for purchasing, installing, and maintaining all hardware, software, and communications equipment (except for Equipment and Software) that is identified in the applicable Service Documentation as the minimum necessary to access and use the Service, and for paying all third-party access charges (e.g., ISP, telecommunications, Integration Application fees) incurred while using the Service.
4.2 Replacement of Equipment. You are responsible for safeguarding the Equipment while in your possession or under your control. If the Equipment is inoperable or malfunctioning at the time it is delivered to you, NowSecure will replace such Equipment, free of charge. However, if the Equipment is lost, stolen, damaged or becomes inoperable while in your possession or under your control, you will be responsible for paying the cost of replacement, including all shipping charges.
4.3 Actions of End Users. You are solely responsible for the actions of your End Users in connection with your Account and their use of the Services, and you will ensure that all of your End Users abide by the Terms, as well as all applicable laws, rules, and regulations.
4.4 Account Credentials. You are responsible for maintaining the security of your Account Credentials and for all Services ordered, accessed, or otherwise used in connection with your Account Credentials, and all actions taken in association therewith. You will not share your Credentials with any third party, and you will promptly notify NowSecure if your Credentials have been compromised.
4.5 Data Authorization. You are solely responsible for ensuring you have all necessary rights, authorizations and consents to use Data, and to share Data with NowSecure, in the manner contemplated by these Terms.
4.6 Data Backup. You will maintain regular data backups or redundant data archives for the Data.
5.1. Ownership. As between NowSecure and you, NowSecure and its licensors own all right, title and interest in and to the Services, including all related intellectual property rights, and you own all right, title and interest in and to Your Data, including all related intellectual property rights. NowSecure reserves the right to retain and use System Data without restriction. No rights are granted by either party to the other except those expressly set forth herein.
5.2. Your License to NowSecure. You hereby grant NowSecure a non-exclusive license to host and process the Data for the duration of your Online Services Subscription term, solely for the purpose of providing you with such Online Services.
5.3. Feedback. You may provide NowSecure with ideas, opinions, recommendations, feedback, or advice in connection with your use of the Services, including Trial Use Services (collectively “Feedback”). If you submit Feedback to NowSecure, you hereby grant NowSecure an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display such Feedback (or any modification thereto), in whole or in part, in any format, medium or application now known or later developed; and (b) use, and permit others to use, Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that NowSecure deems appropriate in its discretion (including, without limitation, incorporating Feedback, in whole or in part, into any technology, product or service). The foregoing Feedback license shall not be construed as granting NowSecure any rights to your preexisting intellectual property.
6. FEES AND PAYMENTS
6.1. Fees. You agree to pay the Fees specified in the relevant Order Form. Unless otherwise expressly set forth in the Terms or the relevant Order Form: (a) all fees and payment obligations are non-cancelable and non-refundable; (b) quantities purchased cannot be decreased during the Subscription term; and (c) Fees are due in advance for the Subscription term.
6.2. Invoicing and Payment. You are responsible for providing complete and accurate billing and contact information to NowSecure and notifying NowSecure promptly of any changes to such information. Unless otherwise stated in the Order Form, Fees are due Net thirty (30) days from the invoice date.
6.3. Taxes. Fees are stated exclusive of all applicable duties, tariffs, and taxes. You agree to pay, in addition to the Fees, all applicable duties, tariffs, taxes, and similar government mandated charges which result from your purchase of Services, except taxes based on NowSecure’s own income. Each party will provide and make available to the other party any exemption certificates, treaty certification, or other exemption information reasonably requested by the other party.
6.4. Future Functionality. You agree that your purchase of Services is not contingent on the delivery of any future feature or functionality, or dependent on any representations or statements made by NowSecure or any other party regarding future features or functionality.
7. TRIAL USE SERVICES & BETA SERVICES
7.1. Trial Use. NowSecure may, in its discretion, provide you with access to certain Services on a Trial Use basis, in which case you may use such Services for your internal evaluation until the earlier to occur of: (a) the date specified in the applicable Order Form; (b) the start date of your paid Subscription for the Trial Use Services; or (c) the end date identified in any notice from NowSecure terminating the Trial Use period. Additional terms and conditions may accompany the Trail Use Services, and any such additional terms and conditions are hereby incorporated into these Terms by this reference. Any data you enter into or that is gathered by the Services, personalized configurations, and any output generated by or as a result of using the Services during your Trial Use period may be permanently lost unless you procure a paid subscription for such Service prior to the end of the Trial Use period.
7.2. Beta Services. NowSecure may from time to time, and at its discretion, make available to you certain Beta Services, in which case you may use such Beta Services for your internal evaluation for the duration identified by NowSecure. You understand and agree that such Beta Services: (a) may be available for a temporary period, and may be removed or modified at any time; (b) may not ultimately be incorporated into commercially available Services; and (c) may contain errors or undocumented functionality. Data and configurations specifically related to a Beta Service may not be retained if the Beta Service is discontinued.
7.3 Disclaimer. ALL TRIAL USE AND BETA SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY AND ARE EXCLUDED FROM ANY REPRESENTATIONS OR WARRANTIES SET FORTH IN THESE TERMS.
8.1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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 its disclosure. Your Confidential Information includes Your Data, and NowSecure’s Confidential Information includes the Services and all NowSecure Reports and pricing terms related thereto. Confidential Information excludes information that the Receiving Party can demonstrate, through written or other documentary records, was: (a) rightfully in the Receiving Party’s possession without obligation of confidentiality prior to receipt from the Disclosing Party; (b) a matter of public knowledge through no fault of the Receiving Party; (c) rightfully furnished to the Receiving Party by a third party without restriction on disclosure or use; or (d) independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
8.2. Protection of Confidential Information. The Receiving Party will: (a) hold the Confidential Information of the Disclosing Party in trust and confidence and not disclose such Confidential Information to any third party except as provided herein; (b) not use the Confidential Information of the Disclosing Party for any purpose except for the purposes described in the Terms; (c) use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than a reasonable degree of care; and (d) except as otherwise authorized by the Disclosing Party in writing, limit disclosure of the Disclosing Party’s Confidential Information to its Affiliates, financial and legal advisors, and those of its personnel who have a need to know and who are bound, either in connection with their relationship, employment, or representation, by confidentiality obligations no less restrictive than the confidentiality obligations contained herein.
8.3. NowSecure Reports. For purposes of clarification, and without limiting the foregoing confidentiality obligations, NowSecure Reports are strictly for your internal business use only and may not be: (a) shared with any individual or entity, including without limitation any Affiliate or other governmental agency in the event you are a governmental agency; or (b) published, stored or otherwise made available in any location where anyone other than you or your End Users can access them.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party in response to a court order or as otherwise required by law, provided that: (a) the Receiving Party gives the Disclosing Party prior notice of the required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure; and (b) the Receiving Party discloses only that portion of the Confidential Information that, in the opinion of its legal counsel, the Receiving Party is legally required to disclose.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1. Mutual Representations. Each party represents and warrants to the other that: (a) it has all necessary right, power, and authority, and has taken all necessary action, to enter into and perform its obligations under this Agreement and to grant the rights granted to the other party herein; (b) it will abide by all laws, rules, and regulations applicable to its performance under these Terms; and (c) its execution and performance of the Terms will not violate or conflict with the rights of any third party or with any confidentiality or other agreement to which it is a party or by which it is bound.
9.2. NowSecure’s Representations. NowSecure represents and warrants to you that: (a) the Services (except for Trial Use and Beta Services) will function in all material respects in conformity with the applicable Documentation; and (b) the Services will not knowingly contain any Harmful Content. The representation and warranty set forth in subsection (a) shall not apply to any error, interruption, or other non-conformity caused by: (i) your use of the Service not in conformity with the applicable Documentation; (ii) your or any third party’s network, equipment, hardware, or software, or Data; (iii) interruptions to, or unavailability of, Internet access or other downtime caused by network or third-party services; or (iv) your breach of the Terms.
9.3. Your Warranty. You represent and warrant to NowSecure that: (a) you own, or have obtained from the owner of, all authorizations, consents, permissions, and licenses necessary to utilize the Data in connection with the Services, and for the Services to process and store the Data in the manner identified in the Service Documentation and these Terms; (b) the Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights (including contractual rights) of any third party, or violate any applicable law; and (c) the Data does not contain any Harmful Content.
9.4. Disclaimers. UNLESS OTHERWISE EXPRESSLY SET FORTH HEREIN, YOUR USE OF THE SERVICES WILL BE AT YOUR OWN RISK AND ALL SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. NOWSECURE AND ITS LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NOWSECURE MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (A) THE ABILITY OF THE SERVICES TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SERVICES (SPECIFICALLY INCLUDING ANY NOWSECURE REPORT GENERATED THROUGH USE OF THE SERVICES, INCLUDING YOUR REPORTS), AND (C) THIRD PARTY PRODUCTS, AND NOWSECURE ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH. THE REFERENCE TO, OR AVAILABILITY OF, THIRD-PARTY PRODUCTS IN CONNECTION WITH THE SERVICES DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH NOWSECURE WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT NOWSECURE EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, YOUR COMPLIANCE WITH ANY LAW, RULE, REGULATION, OR THIRD-PARTY CONTRACTUAL OBLIGATION APPLICABLE TO YOU OR YOUR END USERS USE OF THE SERVICES OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY NOWSECURE OR ANY OF ITS EMPLOYEES WILL CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND. THE FOREGOING DISCLAIMER WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, NOWSECURE’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
9.5. High Risk Activities. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, THE SERVICES, AND ANY RESULTS OBTAINED FROM THE SERVICES, ARE NOT INTENDED FOR USE IN THE OPERATION OF, OR IN CONNECTION WITH THE OPERATION OF, NUCLEAR OR CHEMICAL PROCESSING FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES, OR OTHER EQUIPMENT OR SYSTEMS IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
10.1. NowSecure’s Indemnification of You. With the exception of Trial Use and Beta Services, NowSecure agrees to defend you in any claim, suit or proceeding brought by a third party (“Claim”) against you alleging that your authorized use of the Services infringes such third party’s intellectual property rights, and to indemnify and hold you harmless from any damages, attorney fees and costs finally awarded against you by a court of competent jurisdiction or included in a settlement approved by NowSecure in connection with such Claim. NowSecure will not have any obligation to indemnify, defend or hold you harmless where the Claim could have been avoided but for your: (a) access to or use of the Services in combination with any hardware, system, software, network, or other materials or services not provided or authorized in writing by NowSecure; (b) modification of the Services, or modifications made on your behalf; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to you by NowSecure; or (d) breach of the Terms. If NowSecure receives information about an infringement claim related to the Services, NowSecure may in its discretion: (i) modify the Services so that they no longer infringe, but are substantially, functionally equivalent; (ii) obtain a license for your continued use of the affected Services; or (iii) terminate your Subscription for the affected Service upon thirty (30) days’ written notice with a refund of any unused prepaid fees. NowSecure shall have no liability to you for any alleged or actual infringement, or damages related thereto, resulting from your continued use of the affected Service after NowSecure’s written notice to you to cease use thereof in order to avoid further infringement.
10.2. Your Indemnification of NowSecure. You agree to defend NowSecure in any Claim brought against NowSecure alleging that NowSecure’s authorized use of the Data, or your use of the Service in breach of the Terms, infringes a third party’s intellectual property or contractual rights, and to indemnify NowSecure from any damages, attorney fees and costs finally awarded against NowSecure by a court of competent jurisdiction or included in a settlement approved by you in connection with such Claim. You shall not have any obligation to indemnify, defend, or hold NowSecure harmless where the Claim could have been avoided but for NowSecure’s modification of the Data, or modifications made on NowSecure’s behalf, in violation of these Terms.
10.3. Indemnification Requirements. For all indemnification Claims, the following requirements apply: (a) the indemnified party shall provide prompt written notice to the indemnifying party of the Claim; (b) the indemnified party shall tender to the indemnifying party sole control of the defense and settlement negotiations related to the Claim; (c) the indemnified party shall reasonably assist (at indemnifying party’s expense) in the defense or settlement of the Claim; (d) the indemnified party shall avoid taking any action that would be prejudicial to the defense of the Claim; (e) the indemnified party agrees to take all reasonable steps to mitigate losses; (f) the indemnifying party may not settle any Claim in any manner that imposes any admission of guilt or liability on the indemnified party without the prior written consent of the indemnified party; and (g) the indemnified party may participate in the defense of the Claim, at its expense, with counsel of its choice.
11. LIMITATION OF LIABILITY
11.1. Direct Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY, FOR AN AMOUNT GREATER THAN THE TOTAL FEES PAID OR PAYABLE TO NOWSECURE FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE ABOVE LIMITATIONS DO NOT LIMIT PAYMENT OBLIGATIONS FOR DULY ORDERED SERVICES.
11.2. Exclusion of Consequential and Related Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, OR LOSS OF BUSINESS OR OF REVENUES, IN EACH CASE WHETHER CAUSED DIRECTLY OR INDIRECTLY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF SUCH POSSIBILITY.
11.3. Limitations Generally. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.4, THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. EACH PARTY ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH LIMITATIONS, THE TERMS, INCLUDING, WITHOUT LIMITATION, ANY ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED. THE EXCLUSIONS AND LIMITATIONS IN ARTICLE 11 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THE TERMS.
11.4. Exceptions. The exclusions and limitations set forth in this Article 12 shall not apply to claims arising from: (a) a party’s gross negligence or willful misconduct; (b) breach of a party’s confidentiality obligations contained herein; (c) a party’s indemnification obligations contained herein; and (d) your breach of Section 2.2 or 2.3. Some jurisdictions may not allow the exclusion or limitation of consequential, incidental, special or other damages, so the above limitations or exclusions may not be allowed, and in such event, the liability of NowSecure and its licensors shall be limited to the fullest extent permitted by law in such Jurisdiction.
12. TERM AND TERMINATION
12.1. Term. The Terms will become effective as of the date you accept them pursuant to Section 1.1 and will continue to bind the parties until the earlier of: (a) termination by either party in accordance with this Article 12; or (b) termination or expiration of all Subscriptions (including Trial Use). The term of the applicable Subscription shall be as specified in the relevant Order Form.
12.2. Termination for Convenience. You may terminate these Terms for your convenience by providing NowSecure with written notice thereof. Termination under this Section 12.2 will be effective thirty (30) days from the date of NowSecure’s receipt of your written notice. In no event will termination of the Terms under this Section 12.2 relieve you of your obligation to pay any Fees for Services you procured prior to such termination or entitle you to a refund for any Fees already paid by you for the Services.
12.3. Termination for Cause. Either party may terminate the Terms, individual Order Forms, or individual Subscriptions immediately upon written notice to the other party if: (a) the other party commits any material breach of the Terms and fails to cure such breach within thirty (30) days after written notice thereof from the non-breaching party; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or otherwise becomes generally unable to pay its debts. In addition, you may terminate the Terms, individual Order Forms, or individual Subscriptions immediately upon notice to NowSecure as provided in the SSLA. If the Terms, individual Order Forms, or individual Subscriptions are terminated by you for cause under this Section 12.3, NowSecure agrees to refund you prepaid Fees covering whole months of the applicable Subscription period remaining after the effective date of termination. If the Terms, individual Order Forms, or individual Subscriptions are terminated by NowSecure for cause, you agree to pay any unpaid Fees for the entire Subscription period for the terminated Services.
12.4. Effect of Termination. If the Terms are terminated for any reason: (a) all Order Forms and Subscriptions will also terminate, all rights, licenses, consents and authorizations granted by either party to the other will cease as of the effective date of the termination of the Terms, and NowSecure will disable your Account and End User’s access to all Services; (b) you agree to pay for all Subscriptions up to the effective date of termination and any termination Fees if specified in the relevant Order Form (except where you are terminating the Terms for cause as provided in Section 12.3); (c) you will immediately cease all use of the Services; and (d) the Receiving Party will promptly destroy, or at the Disclosing Party’s request return, all Confidential Information of the Disclosing Party. Notwithstanding anything to the contrary in the foregoing, with respect to Confidential Information of the Disclosing Party that may reside in electronic form in the Receiving Party’s backups, archives, and disaster recovery systems, the Receiving Party may retain such Confidential Information for the period required by applicable law, or for the period that is consistent with the Receiving Party’s standard electronic records retention policies applicable to the media on which such Confidential Information is stored, whichever is longer. Upon expiration of the applicable period, the Receiving Party will erase, destroy, or overwrite the media containing the Disclosing Party’s Confidential Information. The confidentiality obligations contained in these Terms shall continue to bind the Receiving Party until such time as the Disclosing Party’s Confidential Information is erased, destroyed, or overwritten.
12.5. Effect of Termination of Individual Order Forms or Subscriptions. In the event of expiration or termination of individual Order Forms or Subscriptions for any reason, upon the effective date of such expiration or termination: (a) all rights, licenses, consents and authorizations granted by either party to the other under the affected Order Forms or Subscriptions will cease immediately; (b) you agree to pay for the Services provided up to the effective date and any termination Fees if specified in the affected Order Forms (except where you are terminating the Order Form or Subscription for cause as provided in Section 12.3); and (c) you will immediately cease all use of the affected Services.
12.6. Suspension of Access. NowSecure reserves the right to suspend your access to Services in the event of a breach of Section 2 by you or your End Users, or if you fail to pay undisputed Fees in accordance with Section 7 within sixty (60) days of the applicable due date. If NowSecure suspends your access to Services, it will notify you in writing, and shall restore access when the breach is cured (if capable of cure) and/or undisputed fees are paid in full, as applicable.
13. DATA PRIVACY LAWS
You agree to comply with all applicable data protection and privacy laws, including all laws that govern your provision of Data to NowSecure, so that NowSecure may process such Data as contemplated by these Terms. NowSecure agrees to comply with all data protection and privacy laws that are applicable to NowSecure in provisioning the Services. You agree to notify NowSecure in writing of any security obligations relating to the Data that you are obligated to pass through to NowSecure under applicable law.
14. INTEGRATION APPLICATIONS
The Services may interoperate with Integration Applications. You acknowledge and agree that if you utilize Integration Applications, you are solely responsible for obtaining all necessary use rights from the applicable third-party, and NowSecure shall have no obligation to you in connection with such Integration Applications (including without limitation any support obligation).
15. GENERAL PROVISIONS
15.1. Notices. Except as otherwise specified by the Terms, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) the second business day after proper mailing; or (b) the first business day after successfully sending by email; provided email alone shall not be sufficient to establish notice of an indemnification Claim. For notices sent by NowSecure to you, such notices will be sent to the applicable address or email address identified in your Account, and for notices by you to NowSecure, such notices shall be sent to the applicable address or email address identified below:
Attention: General Counsel
1046 Lake Street
Oak Park, IL 60301
15.2. Governing Law. The Terms shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its choice or conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to these Terms and are hereby excluded.
15.3. Force Majeure. Except for payment obligations, each party shall be excused from failure to perform its obligations hereunder if such failure results from causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, civil unrest, insurrections, war, terrorist acts, boycotts, embargoes, labor strikes, natural disasters, or internet or telecommunications failures (collectively “Force Majeure Events”). If a Force Majeure Event prevents or delays a party’s performance, it will promptly notify the other party in writing, and will use all commercially reasonable efforts to resume performance if and when possible. Either party may terminate the Terms if a Force Majeure Event prevents or delays performance for a period of thirty (30) days or more.
15.4. Export Compliance. The Software, Equipment, and Documentation may be subject to U.S. export control laws, and may be further subject to export or import regulations in other countries. If such regulations are applicable, you agree to comply with all such regulations and acknowledge that it is your responsibility to obtain all necessary licenses to import and re-export the Software, Equipment, and Documentation outside the USA. The Software, Equipment, and Documentation may not be distributed (or downloaded in the case of Software and Documentation), or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the U.S. at any time has embargoed goods or trade restrictions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or on the U.S. Commerce Department’s Denied Persons, Denied Entities, and Unverified lists.
15.5. Federal Use. The Software and related Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
15.6. Purchase Order Terms. The parties agree that any term or condition stated in a purchase order or similar purchase documentation provided by you will be inapplicable and is hereby disclaimed.
15.7. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder, whether voluntarily, involuntarily, by operation of law or otherwise, without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign or otherwise transfer its rights or obligations under this Agreement by operation of law or otherwise in connection with a change in control, change in majority ownership or the sale of all or substantially all of the assets of such party, or the assets to which this Agreement pertains, without the other party’s prior written consent (“Change of Control”), provided that the party subject to the Change of Control notifies the other party in writing of such Change of Control within thirty (30) days thereafter. If a Change of Control is to a direct competitor of the non-assigning party, then the non-assigning party will have the right to terminate these Terms immediately upon written notice. Subject to the foregoing, this License Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any nonconforming assignment or transfer shall be null and void.
15.8. Relationship of the Parties. Nothing in the Terms shall be deemed to create a joint venture, partnership, or agency relationship between the parties or be deemed to authorize either party to incur any liabilities or obligations on behalf of, or in the name of, the other.
15.9. Third-Party Beneficiaries. There are no third-party beneficiaries under the Terms. Your End Users are specifically not third party beneficiaries under the Terms.
15.10. No Waiver. No failure or delay by either party in exercising any right under the Terms will constitute a waiver of that right.
15.11. Survival. The following Sections, and any other right or obligation of the parties in the Terms that, by its nature, should survive termination or expiration of the Terms, will survive any expiration or termination of the Terms: 5.1 Ownership, 5.3 Feedback, 6.1 Fees (to the extent outstanding), 6.3 Taxes (to the extent applicable), 8 Confidentiality, 9 Representations, Warranties and Disclaimers, 10 Indemnification, 11. Limitation of Liability, 15.1 Notices, and 15.2 Governing Law.
15.12. Severability. If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, then that provision will be construed so as to make it conforming to law and to affect the original intent of the parties as closely as possible.
15.13. Construction. The section headings used throughout the Terms are for convenience of reference only and shall have no effect upon the construction or interpretation of the Terms or any part thereof. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders. In construing or interpreting the Terms, the word “including” shall not be limiting and the words “hereunder” and “herein” mean within the Terms, including its Exhibits. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to the Terms.
15.14. Entire Agreement. The Terms, including all Exhibits, relevant Order Forms and associated terms and policies referenced and incorporated hereunder and thereunder, comprise the entire agreement regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of the Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
SUPPORT AND SERVICE LEVEL AGREEMENT
This Support and Service Level Agreement (“SSLA”) provides the standards and procedures for product support, issue reporting, response times, and uptime commitment for Online Services. Capitalized terms not defined in this SSLA have the meanings set forth in the Terms.
“Available” means all material functions of the Services are operational.
“Product Support” means written or verbal information provided for user assistance, troubleshooting, and advice regarding the access to and use of the Services.
“Exclusions” means any Outage: (a) caused by factors outside of NowSecure’s reasonable control, including any Force Majeure Event or Internet access or related problems beyond the demarcation point of the NowSecure Services; (b) that results from any action or inaction by you or any third party acting on your behalf; (c) caused by your software or hardware, or third party software or hardware not supplied by NowSecure; or (d) arising from NowSecure’s suspension or termination of your Service Subscription in accordance with the Terms.
“Outage” means a period when the Services are not Available, outside of Scheduled Maintenance Periods, for reasons other than Exclusions.
“Scheduled Maintenance Period” means the daily period from 10 p.m. to 6 a.m. Eastern Time during which NowSecure performs its standard Service maintenance activities.
“Uptime Percentage” means the proportion of time during each calendar month when the Services are Available, as a percentage (Available minutes/total minutes), where total minutes in the month excludes Scheduled Maintenance and other Exclusions (both defined herein).
2. STANDARD BUSINESS PRODUCT SUPPORT
2.1 Product Support. NowSecure will provide Product Support to the Account Owner and End Users, via website, telephone, email and other methods made available by NowSecure. NowSecure may limit the number of End Users eligible for Product Support on certain Services, but at least two (2) will be allowed for all Subscriptions.
2.2 Support Contacts. Specific support phone numbers and email contacts (“Support Contacts”) are provided at https://support.nowsecure.com, and you may submit a support request to the Support Contacts on a 24 hour, 7 days a week over 365 days a year (24/7/365) basis.
2.3 Response Time. For support requests received during normal support hours, which are Monday through Friday (excluding holidays) 8:00 a.m. to 6:00 p.m. US Central Time, NowSecure will respond to your support request:
- Within one (1) hour for high security risk or critical issues preventing all or nearly all effective use of the affected Service (“Critical Issues”);
- Within two (2) hours for serious issues preventing effective use of one or more Service features, or low and medium security risk reports (“Serious Issues”); and
- Within one (1) business day for problems, user questions, or less-serious bugs (“Regular Issues”)
2.4 Your Cooperation. You agree to cooperate and work with NowSecure to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate.
2.5 Case Tracking and Resolution. All support requests are assigned a case ID and tracked through resolution. NowSecure will initiate remediation promptly for Critical and Serious Issues and work until such issues are resolved or an acceptable workaround provided. Any Critical Issue not resolved or remediated through reasonable workaround within 2 business hours of NowSecure’s receipt of your support request will be considered Downtime under the Uptime Commitment, counted from the time NowSecure receives your initial request.
2.6 Escalation. You may escalate any reported Critical or Serious Issues to your Account Owner, and subsequently to NowSecure’s VP or Director of Customer Success.
2.7 In-app Live Help. During Support Hours, you can request assistance using the integrated Intercom chat system (subject to availability) directly in the Services. In-app live help is logged but no Case ID will be assigned for tracking.
3. SERVICE LEVEL STANDARDS
3.1 Uptime Commitment. NowSecure will make Online Services Available with a “Minimum Uptime Percentage” of at least 99.5%, in each case during any monthly billing cycle. Scheduled Maintenance Periods and Exclusions will be excluded when determining whether the Minimum Uptime Percentage has been met. In the event NowSecure does not meet the Minimum Uptime Percentage during any calendar month, you will be eligible to receive a Service Credit as described below. For clarity, this Uptime Commitment applies only to Subscription based Services.
3.2 Scheduled Maintenance. Unavailability during Scheduled Maintenance Periods will be minimized, and not exceed four (4) hours per month. NowSecure will provide notice to you in your Services Account or by email to the Account Owner at least 24 hours in advance for standard maintenance of less than one (1) hour, or at least seven (7) days in advance for any Scheduled Maintenance Period which will require suspension of all or the majority of the Services for a period of more than 1 hour.
3.3 Service Credits. Service credits will be provided, as specified in the following table, for any month NowSecure fails to meet the Minimum Uptime Percentage, subject to the service credit procedures and requirements. Credit days will be applied to your Subscription by extending the term of your Subscription by the specified number of credit days.
|Monthly Uptime Percentage||Service Credit|
|Less than 99.5% but equal to or greater than 99%||1 day|
|Less than 99% but equal to or greater than 95%||7 days|
|Less than 95% but equal to or greater than 90%||15 days|
|Less than 90%||30 days|
To receive a Service credit, you must submit a claim by emailing support within ten (10) days of the end of the month in which the Minimum Uptime Percentage was not met. The email should state “SLA Credit Request” in the subject line, and must specify: (a) the particular Service related to the claim; (b) the dates and times of each Outage claimed; and (c) logs and other material that document and corroborate the claimed Outage(s) (any confidential or sensitive information in these logs should be removed or replaced with asterisks). NowSecure reserves the right to withhold any Service Credit if: (i) it cannot verify the Outage(s) or reasonably verify that the Services were not Available during the reported time; (ii) the Outage is subject to an Exclusion.
4. SOFTWARE UPDATES
4.1 On-Premises Software Updates. During the term, NowSecure will provide you all generally released updates to on-premises Software that is part of the Services, where applicable, including security patches, bug fixes, modifications or enhancements. In order to apply updates, you may be required to update software dependencies, including the operating system or other components. All updates are provided for the current software version, and patches or updates to prior versions are not provided.
4.2 Online Services Updates. During the term, NowSecure will update Online Services including any Web application or API that is part of the Services, where applicable, including updates for security, bug fixes, modifications or enhancements.
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