Terms of Service

1. Access and Use

1.1. Access and Use.

Subject to payment of all applicable fees set forth in the Order or payment in accordance with an Indirect Order through a Channel Partner (as appropriate) and the terms and conditions of this Agreement, NUPORT grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer's and its Affiliates' internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order.

1.2. Access and Use Restrictions.

Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or NUPORT's Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or NUPORT's Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libellous or otherwise unlawful data; or (k) store in or process with the SaaS Products any personal data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Customer Data that is subject to the breach of any laws of the land. Fees for the SaaS Products are based on use of the SaaS Products in a manner consistent with the Documentation. If Customer uses the SaaS products in a manner that is outside or in violation of the Documentation, then Customer will cooperate with NUPORT to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.

1.3. Login Access to the SaaS Products.

Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in proper use of the SaaS Products, and (iii) proper usage of passwords, tokens, and access procedures with respect to logging into the SaaS Products. NUPORT reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case NUPORT will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, NUPORT may suspend Customer's access and use of the SaaS Products if there is an unusual and material spike or increase in Customer's use of the SaaS Products and NUPORT reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. NUPORT will provide notice prior to such suspension if permitted by applicable law or unless NUPORT reasonably believes that providing such notice poses a risk to the security of the SaaS Products. NUPORT will promptly reinstate Customer's access and use once the issue has been resolved.

1.4. Trial Services.

If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by NUPORT in its sole discretion (collectively, "Trial Services"), NUPORT makes such Trial Services available to Customer until the earlier of: (i) the end of the free trial or proof of concept period or beta testing period as communicated by NUPORT or specified in an Order; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from NUPORT ("Trial Services Period"). NUPORT grants Customer, during the Trial Services Period, a non-exclusive, non-transferable right to access and use the Trial Services for Customer's internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by NUPORT in writing. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost unless Customer: (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services; or (b) exports such data or configurations before the end of such free period. There is no guarantee that features, or functions of the Trial Services will be available, or if available will be the same, in the general release version of the SaaS Products, and Customer should review the SaaS Products features and functions before making a purchase. NUPORT will be under no obligation to provide Customer any maintenance or support services with respect to the Trial Services. Notwithstanding anything to the contrary, NUPORT provides the Trial Services "as is" and "as available" without any warranties or representations of any kind. To the extent permitted by law, NUPORT disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer's sole and exclusive remedy in case of any dissatisfaction or NUPORT's breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of NUPORT to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.

1.5. Third Party Materials.

The SaaS Products include Third-Party Materials, use of which is subject to their respective OSS Licenses as indicated in the Documentation. NUPORT warrants that the inclusion of such Third-Party Materials in the SaaS Products will not prevent Customer from exercising the license rights provided to Customer herein in respect of the SaaS Products or limit Customer's ability to use the SaaS Products in accordance with the Documentation. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any. Customer may obtain a copy of the source code for certain Third-Party Materials by following the instructions set forth in the Documentation.

1.6. Support.

As part of its provision of the SaaS Products, NUPORT shall make available technical support to Customer in accordance with NUPORT's then applicable SaaS support terms. Upon notification from NUPORT, Customer shall promptly update any Agents on Customer systems that interact with the SaaS Products. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the SaaS Products, security risks or suspension of Customer's access to the SaaS Products, without any liability on the part of NUPORT to Customer.

1.7. Mobile Applications.

With regard to SaaS Products that require the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Customer further acknowledges and agrees that the SaaS Products may not properly operate should any Authorized User fail to do so, and that NUPORT is not liable for any damages caused by a failure to update mobile applications accordingly.

2. Payment and Taxes

2.1. Payment Terms.

Customer shall pay all invoices within ten (10) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by NUPORT. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge unpaid balance as allowed by law. Without prejudice to Customer's rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. NUPORT may invoice for purchases of SaaS Products upon delivery.

2.2. Taxes.

The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. NUPORT shall include the Indirect Taxes on its invoice to Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law. For the avoidance of doubt, NUPORT will be responsible for direct taxes imposed on NUPORT's net income or gross receipts in its tax jurisdiction.

2.3. Indirect Orders.

If Customer places an Indirect Order, then NUPORT grants the rights described in this Agreement in consideration for and subject to: (a) Customer's agreement to comply with the pricing and payment terms of the Indirect Order, to be separately agreed between Customer and the applicable Channel Partner; and (b) Customer's agreement to comply with its obligations set forth in this Agreement (including the restrictions on use of the SaaS Products). Notwithstanding the foregoing, the final sales price or rate shall be freely and independently determined between the applicable Channel Partner and Customer. For the avoidance of doubt, in the case of such an Indirect Order, any indication in this Agreement of an agreement between Customer and NUPORT for the price payable by Customer for such Indirect Order shall be null and void and not form a binding part of this Agreement and the provisions of this Agreement related to payment terms, pricing and/or order procedures shall not apply.

3. Rights in Intellectual Property

3.1. Intellectual Property.

Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and NUPORT Intellectual Property are hereby reserved by NUPORT, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from one Party to the other.

3.2. Customer Data.

Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant NUPORT any rights in Customer Data beyond those expressly provided herein. Customer grants NUPORT and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the SaaS Products.

3.3. Usage Data and Suggestions.

NUPORT shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer's benefit. In the event NUPORT wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be anonymized and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way NUPORT's confidentiality obligations pursuant to section 4 below. To the extent that Customer provides NUPORT with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon NUPORT pursuant to this Agreement, and may be implemented by NUPORT in its sole discretion. Customer acknowledges that any NUPORT products or materials incorporating any such Suggestions shall be the sole and exclusive property of NUPORT.

4. Confidentiality

4.1. Confidential Information.

The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party's Confidential Information to fulfill the purposes of this Agreement. The receiving Party will protect the disclosing Party's Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure, or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.3 and not this section 4 herein apply to Customer Data.

4.2. Exceptions.

Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party's Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.

4.3. Advertising and Publicity.

Neither Party shall make or permit to be made any public announcement concerning the existence, subject matter or terms of this Agreement or relationship between the Parties without the prior written consent of the other Party except as expressly permitted in this section. Customer grants NUPORT and its Affiliates during the term of the Agreement the right to use Customer's trade names, logos, and symbols ("Customer Marks") in its public promotional materials and communications for the sole purpose of identifying Customer as a NUPORT customer. NUPORT shall not modify the Customer Marks, or display the Customer Marks any larger or more prominent on its promotional materials than the names, logos, or symbols of other NUPORT customers. The foregoing promotional materials and communications may be created, displayed, and reproduced without Customer's review, provided that they are in compliance with this section and any Customer Marks usage guidelines provided by Customer to NUPORT in writing.