These Terms of Service are entered into between NSS Labs, Inc., a Delaware corporation having its primary place of business at 206 Wild Basin Rd., Bldg. A, Suite 200, Austin, TX 78746 ("NSS"), and the individual, organization, or business entity making a purchase of NSS products and/or services (or those entities which have executed any type of transaction, embodied in an Agreement, Purchase Agreement, or other Sales Document with NSS, which references these Terms of Service)("Client," or "Company," or "Customer")("Terms").
These Terms are entered into as of the date, as applicable, of: (1) an online purchase; (2) the Effective Date of any Agreement or Contract executed between NSS and Client which references these Terms; or (3) the date on which full and proper execution is completed for any Purchase Agreement or other Sales Document ("Terms Effective Date").
NSS provides strategic advisory services and subscriptions (on a Software as a Service [SaaS] or "cloud-based" model) for security research, test data, and threat intelligence. Client wishes to engage NSS to provide those specific Subscription services as identified on the accompanying Purchase Agreement or Quote, on the terms and conditions contained in these Terms.
- "Company Parties." "Company Parties" are those employees, directors, officers, agents, and affiliates of Client who are permitted to use the Services under these Terms.
- "Documentation." The term "Documentation" means any written information, including but not limited to product specification sheets or other written descriptions of the functionality of the Services made publicly available by NSS to customers or provided by NSS to Company for the purpose of sharing with Company’s customers or other Company Parties.
- "EULA." EULA is the abbreviation for, and term commonly used to refer, to an “End-User License Agreement. A EULA is a license agreement for the use of any Software/Service that is provided with, shipped with, accompanies, is included in (e.g., part of a product installer, or executable), made available by download, or is required as a click-through prior to use of, such Software/Service and that must be accepted by any party using the Services (end users) prior to use. A EULA is part of the Online Terms presently found at www.nsslabs.com/terms-service.
- "Intellectual Property Rights." The term Intellectual Property Rights means any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, and derivative works thereof; (ii) trademark and trade name rights; (iii) trade secret rights; (iv) patents, mask work rights, design rights, and other industrial property rights, and; (v) all other intellectual property rights of every kind and nature, however designated, whether arising by operation of law, treaty, contract, license, or otherwise, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof.
- "Library Subscription." The term Library Subscription as used in these Terms of Service means the revocable, non-transferrable, non-exclusive limited subscription to log into and utilize the online library located on the Website.
- "NSS Materials." NSS materials are any reports, documentation, software, Services, or any other materials provided or made available to you by NSS pursuant to any purchase or subscription.
- "Online Terms." The term "Online Terms" means these terms and conditions imposed on use of the Services, and/or on Company, customers, or end-users in general by NSS and published on the Website. NSS is entitled to update its Online Terms and/or EULA at any time.
- "Purchase Agreement." A "Purchase Agreement" is any invoice, sales order, order document, order form, service order, or any other document which describes the particular Services, term, and price for a given transaction under these Terms.
- "Private Cloud." "Private Cloud" or "Private Lane" is a custom option for validation of security controls, which grants Client the ability to create custom combinations of applications and deployed products. Within the Private Cloud, Client can configure and fine tune controls based on their specific environments.
- "Report." The term "Report" means (a) any analyst reports, product assessments, public test results, comparison tests, research reports, or other information available as part of the Services and/or (b) analysis NSS provides related to or based on any of the foregoing.
- "Sales Document." A "Sales Document" is any document which, signed by both NSS and a customer, provides the dates, products, descriptions of Services, price, term, and other transaction details preceding, pursuant to, or contemporaneous with a sale by NSS to a customer a Subscription for Services.
- "Services." The term "Services" means the services rendered by NSS pursuant to Purchase Agreement (and/or any Sales Document) between NSS and Client, potentially including, but not limited to, any services rendered in order to deliver any component or functionality of Library Subscription and/or purchases of reports pursuant to these Terms.
- "Software." The term "Software" means any computer code (source, object or otherwise which is used in providing the Services or to which access is provided to Company under the Agreement, including NSS’ proprietary software.
- "Website." The term "Website" means www.nsslabs.com, any webpage associated with www.nsslabs.com, and/or such other URL as is provided by NSS from time to time.
2) Payment Terms
- Fees. Provision of Services by NSS to Client are contingent upon Client's submittal of payment as defined on an accompanying Purchase Agreement or other Sales Document. Fees for Marketing Rights are due upon receipt. Fees for other Services, such as Subscriptions are due within thirty (30) days of the invoice date. Any amounts owed past thirty (30) days from date of invoice shall be subject to a 1.5% late fee charge.
- Suspension. NSS reserves the right to suspend Services for which fees are thirty (30) days or more overdue, excepting those amounts subject to a good-faith dispute. For Private Engagements, NSS reserves the right to reschedule or cancel (with no penalty) any Private Engagement for which full payment has not been received by the first scheduled day of the engagement. NSS further reserves the right to condition the resumption of Services upon the full payment of all owed fees.
- Taxes. Fees for Services are stated are exclusive of any federal, state, municipal, or other government taxes that may be imposed upon use of the Services. Client is solely responsible for paying any applicable taxes, limited to those imposed upon the transaction(s) described in the Purchase Agreement or Quote(s).
3) Subscriptions and Reports
- Grant of Subscription License. Upon payment of the applicable fees, NSS shall grant to Client a terminable, revocable, non-exclusive, non-transferable right to access and use the Services. It is acknowledged and agreed that the Services are licensed for remote access via a secure login, and that neither the Services, nor their output, are sold to nor delivered to Client in source code, object code, or any other form.
- Ownership. Client agrees and acknowledges that the Services are licensed, and not sold, for remote access via a secure login, and that no ownership rights are conveyed to Client, nor delivered to Client (or its customers, where applicable) in source code, object code, or any other form. Neither the Library Subscription Services, nor their output nor contents are "works made for hire."
- Restrictions. Client acknowledges and agrees that any and all NSS Materials are the property of NSS or its licensors, that they contain valuable assets, proprietary information and property of NSS, and are provided to Client only for use strictly in accordance with the terms and conditions of these Terms.
- Company shall not (and shall not encourage or assist any person acting by or through Company) undertake or attempt to undertake any of the following without NSS’ express prior written consent:
- Download, use, install, deploy, perform, modify, license, display, reproduce, distribute, or disclose the NSS Materials (even if merged with other materials as a compilation) other than as expressly allowed under any other provision of these Terms;
- Sell, license, transfer, rent, loan, pledge, or allow any third-party access to, the NSS Materials;
- Modify, translate, reverse engineer (except to the limited extent required to be permitted by applicable law), decompile, disassemble, create derivative works based on, sublicense or distribute any NSS Materials;
- Rent or lease any rights in any NSS Materials in any form to any person;
- Use any NSS Materials for the benefit of any third parties (e.g., in a service bureau relationship) unless and except to the extent expressly set forth otherwise in a written instrument signed by both parties, or use any NSS Materials in any way other than in its intended manner;
- Remove, alter, or obscure any copyright notice, proprietary notice, labels or marks in or on the NSS Materials;
- Disable or circumvent any access control or related device, process or procedure established with respect to any NSS Materials or any other part thereof;
- Post or make generally available any NSS Materials (in whole or in part) to individuals or a group individuals who have not agreed to these Terms and/or the EULA;
- Share any user authentication information and/or password related to the Services with any third party to allow a third party to access the Services or NSS Materials; or
- Collect information or content from the Website using automated means (such as harvesting bots, robots, spiders, or scrapers);
- Fail to comply with local and federal laws in connection with the use of the Services or NSS Materials;
- Make the Services or NSS Materials available externally, or for external use;
- Make the Services or NSS Materials available for timesharing, application service provider, or service bureau use.
- Any and all data, deliverables, information, insights, and/or any other materials produced through CAWS and/or the Research Library are for internal use ONLY, and are not licensed to be, or permitted to be, disseminated, shared, published, referenced, or otherwise communicated outside of Client, for any purpose whatsoever.
- Responsibility for unauthorized use. Company is responsible for all utilization (including the use by any of Company’s employees or agents) of the license and for compliance with these Terms and any applicable third-party software license agreement.
- Company is responsible for all utilization (including the use by any of Company’s employees or agents) of the license and for compliance with these Terms and any applicable third-party software license agreement.
- Company is responsible for use of any NSS Materials by any of Company’s customers when such use is made as part of Company's product offering to such customers. Use of the Services is also subject to each user agreeing to the EULA.
- Company shall not (and shall not encourage or assist any person acting by or through Company) undertake or attempt to undertake any of the following without NSS’ express prior written consent:
- Reports. Reports (both single use and otherwise; including, but not limited to, analyst reports, analyst briefs, product assessments, public test results, comparison tests, test reports, SVM graphics, and research reports) are available for purchase, but are not permitted to be shared or distributed outside of the Customer’s business organization, unless such rights are specifically purchased pursuant to a Purchase Agreements. All Reports are subject to the same restrictions as those listed in Clauses 3(c)(i)(1)-(10).
4) Copyright and Quote Policy
- Notwithstanding any of the restrictions herein, certain limited use of copyrighted NSS Material may be permitted to be used outside of the Company. Only those Companies that have executed specific Purchase Agreements are allowed such use, and any such use shall be subject to the NSS Copyright and Quote Policy, located at https://www.nsslabs.com/company/copyright-quote-policy/, which is specifically incorporated herein.
5) Confidential Information
- Definition; Exclusions."Confidential Information" disclosed by one party ("Disclosing Party") to the other party (the "Receiving Party") means all information disclosed by the Disclosing Party hereunder in whatever form (whether tangible or intangible, in writing, orally, electronically, in all types of computer memory or storage, or other media) that should reasonably be understood by the Receiving Party, because of legends, or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential. For the avoidance of doubt, “Confidential Information” of NSS includes but is not limited to these Terms, the Software, the Documentation, Aggregate Data, and Reports. Notwithstanding the foregoing, Confidential Information will not include information that (i) is known to Receiving Party at the time of disclosure to Receiving Party as evidenced by its written records, (ii) has become publicly known and made generally available through no wrongful act of Receiving Party, or (iii) has been rightfully received by Receiving Party from a third party who is authorized to make such disclosure.
- Use Restrictions. Receiving Party shall maintain the confidentiality of Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect the confidentiality of its own Confidential Information, and in all cases using at least ordinary reasonable care. Receiving Party shall not use, nor share with any third party, Disclosing Party’s Confidential Information without Disclosing Party’s prior written consent except (a) as required for the performance of the Services under these Terms or (b) if required by law, regulation or court order. If required to disclose Confidential Information by law, regulation or court order, the party being compelled to disclose such Confidential Information will give the Disclosing Party as much notice as reasonably practicable prior to disclosing such information, will disclose only the minimum amount necessary to comply with such law/order, and will cooperate in all reasonable ways with the Disclosing Party (at Disclosing Party’s request and expense) to limit disclosure consistent with law. Confidential Information is provided “as-is” and shall remain the sole property of Disclosing Party.
- Feedback. NSS may edit and post any technical support questions or comments posed by Company or its customers/end-users or employees (and the response) on NSS’ support Website and all such questions or comments, as well as any other comments, ideas for improvement or other feedback ("Feedback") regarding the Services that Company or its customers/end-users submits to NSS in any form, shall be NSS’ sole property and NSS may use such Feedback for any purpose. Feedback is not Company’s Confidential Information.
- Aggregate Data. NSS shall have the right to collect and use aggregate, non-identifiable data (collectively, "Aggregate Data") resulting from Company's use of the Services and/or use by any person or entity using the Services by or through the Company. The parties agree that Aggregate Data shall be owned by NSS. NSS will not use the Aggregate Data in any manner so as to identify it as Company's (or its customer's) data.
- Mutual Warranties.
- Each party represents and warrants to the other party that: (a) the signing, delivery, and performance of any Purchase Agreements and/or other Sales Documents; (b) the execution and delivery by it of these Terms and the consummation of the transactions contemplated hereby do not and will not conflict with or result in a breach of the terms, conditions, or provisions of, any agreement or instrument to which such party is bound; and (c) the terms of these Terms will be carried out without violation of law, applicable codes, or other rules, the contravention of which could result in penalties or other liability.
- NSS Warranty.
- NSS warrants that it will provide the services in conformance with the written, mutually-executed documentation.
- Warranty Disclaimers.
- NSS does not guarantee the Services will be operable at all times; unavailability may be caused by outages to public Internet backbones, networks or servers, failures of Company’s or any third party’s equipment, systems, or local access services, previously scheduled or emergency maintenance, or events beyond NSS’ control. Company understands and acknowledges that NSS provides information services only. The information provided through the Services and Materials is believed by NSS to be accurate and reliable at the time of publication, but is not guaranteed; NSS also disclaims any obligation to update such Materials. All use of and reliance on the Services, Reports, Documentation, and Materials are at Company’s sole risk. NSS EXPRESSLY IS NOT AND WILL NOT BE RESPONSIBLE FOR, NOR DOES NSS GUARANTEE THE SECURITY OR INTEGRITY OF, COMPANY’s (OR OF ANY THIRD PARTY’S, INCLUDING CUSTOMERS OF COMPANY), NETWORKS, DATA, OR OPERATIONS. NSS does not implement security or networks nor make design decisions and NSS expressly does not guarantee or warrant that Company (or its customers/end users) will have no security breaches or system failures, whether based on information in NSS’ Materials, Services, or otherwise.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 3 HEREOF (OR IN ANY EXHIBIT(S) HERETO), ALL SERVICES, SOFTWARE, MATERIALS AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS, OR REPRESENTATIONS MADE BY NSS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, MATERIALS, OR REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. NSS DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE, MATERIALS, OR REPORTS WILL MEET COMPANY’S NEEDS OR BE PROVIDED ON AN UNINTERRUPTED BASIS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THE AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.
- No Warranty for third party functionality.
- The Services may contain functionality provided by, or otherwise have integrated in them, products or services from third parties. NSS makes no warranties, express or implied, regarding the conditions of merchantability or fitness for particular purpose of any product or application offered by NSS. NSS makes no representations about the functionality, accuracy, availability, quality, completeness, validity or non-infringement of third party rights of any product or application which is made a part of the Services.
- Indemnification by NSS.
- General. NSS agrees to defend, indemnify, and hold Company and its Company Parties harmless from and against all liabilities, claims, damages, penalties, causes of action, costs and expenses (including reasonable attorneys’ fees) (collectively, "Losses") incurred by Company based on any third-party claim that the Services infringe any Intellectual Property Rights of any third party.
- Limitations. The indemnification obligations defined in Section 3(a)(i) do not apply to any claim (each an "Excluded Intellectual Property Claim") based on:
- Use of the Services in a country other than to which they were originally supplied.
- Use of the Services in a manner or for a purpose not expressly contemplated or permitted by these Terms.
- Use of other than the current version of the Services, if the infringement would have been avoided by use of the then-current version.
- Modification of the Services by Client or by any non-NSS.
- The combination or use of the Services or any output thereof with any services or materials provided by Client or by any other person or entity.
- Any continued use of an allegedly affected Service subsequent to communication by NSS to Client of a request to cease using the allegedly affected Service, pursuant to Section 3(a)(iii), below.
- Indemnification by Client
- Company agrees to defend, indemnify, and hold NSS and its employees, directors, officers, agents, and affiliates (collectively "NSS Parties") harmless from and against all Losses incurred by the NSS Parties based on any third-party claims that arise (a) from any claim that Client’s use of the Services infringed on the Intellectual Property Rights of any third party, and/or (b) any claim that arises directly from Client’s breach of these Terms.
- For any purchase of Private Cloud, Company agrees to defend, indemnify, and hold NSS Parties harmless from and against all Losses incurred by the NSS Parties based on any third-party claims that arise from (a) any claim that the placement by Client of a third party’s product(s) into a Private Cloud violates any contractual obligation between Client and the Third Party; (b) any claim that NSS in any way sought, encouraged, or otherwise induced Client to breach any obligation owed by it to a Third Party; and/or (c) any claim by a Third Party that its product’s inclusion in a Private Cloud is violative of any End User License Agreement.
- Indemnification Procedures
- The party seeking indemnification must provide the indemnifying party with prompt written notice of the claim, suit, or action, and cooperate (at indemnifying party’s expense) as reasonably requested by indemnifying party, in the defense of any claim. The indemnifying party has the right to the exclusive defense and control of any matter subject to indemnification, but must use counsel reasonably experienced in defending similar claims. The indemnified party shall have the right to participate in the defense with counsel of its own choosing at its own expense. If the indemnifying party does not timely assume its defense obligations hereunder (or refuses to assume such obligations), the indemnified party may assume defense and control of the matter without waiving its rights (including its right to attorneys’ fees) against the indemnifying party. The indemnifying party shall not settle any action or claim against the indemnified party without the indemnified party’s written permission (not to be unreasonably withheld), except if the settlement involves only the payment of monetary damages by the indemnified party.
8) Limitation of Liability
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE. THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY (EXCLUDING COMPANY’S OBLIGATION TO PAY FOR ALL SERVICES AND MATERIAL ORDERED), FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WLL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE TO NSS DURING THE PRECEDING TWELVE (12) MONTHS. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF THIS PARAGRAPH DO NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
9) Term and Termination
- The initial term ("Initial Term") of any Subscription under these Terms shall commence on the Start Date indicated on the Purchase Agreement (or other sales document) and shall continue for the duration of the term described in the Purchase Agreement (or other sales document), unless and until terminated in accordance with these Terms. Subscriptions purchased pursuant to these Terms shall automatically renew for additional one (1) year periods upon each anniversary of the Effective Date (each a “Renewal Term”) unless either party provides written notice of non-renewal, no later than thirty (30) days prior to the last day of the then-current term. Pricing for the Renewal Term shall be at then-current rates, and Client shall be invoiced upon the renewal.
- For any and all online purchases, The initial term ("Initial Term") of any Subscription under these Terms shall commence on the date of purchase (“Online Effective Date”) and shall continue for one (1) year, unless and until terminated in accordance with these Terms. Subscriptions purchased online shall automatically renew for additional one (1) year periods upon each anniversary of the Online Effective Date (each a “Renewal Term”) unless either party provides written notice of non-renewal, no later than thirty (30) days prior to the last day of the then-current term. Pricing for the Renewal Term shall be at then-current rates, and Client shall be charged on or about the first date of the Renewal Term.
- Termination for Material Breach.
- If either party commits any material breach of these Terms, and such breach is not cured within ten (10) days after the non-breaching party gives written notice of such breach, then the non-breaching party shall be entitled to terminate the Agreement and any affected orders under it, immediately upon written notice thereof to the breaching party. Additionally, in the event that either party communicates its intent to violate or not uphold any of its obligations under these Terms, the other party may terminate these Terms, along with any associated Purchase Agreement or Quotes, after communication, but prior to any actual breach.
- Right to Suspend Service.
- NSS may, in its sole discretion, and without waiving its subsequent termination rights, immediately issue a warning, temporarily suspend, or indefinitely suspend Company’s account and/or the provision of Services to Company, if Company (a) takes any action which threatens the integrity of NSS’ network or any other party’s network; (b) takes any action inconsistent with these Terms which could impose upon NSS any legal liability to a third party, (c) breaches any licensing restrictions, (d) fails to perform its payment obligations; or (d) if NSS is unable to verify or authenticate any information Company has provided.
- Bankruptcy, Receivership, and Cessation of Services by NSS.
- Either party may terminate adherence to these Terms if the other party: (a) commences a voluntary case under title 11 of the United States Code; (b) has an involuntary case commenced against it by a third party under title 11 of the United States Code and the case is not dismissed by midnight at the end of the sixtieth (60th) day after commencement, or the court before which the case is pending issues an order for relief or similar order approving the case; (c) makes an assignment of all or substantially all of its assets to a custodian for the company, or if a court of competent jurisdiction makes a similar assignment to a custodian on their behalf; and (d) fails generally to pay its debts as they become due (excluding those debts which are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
- If NSS ceases to provide any Services (or component thereof) to its customers generally, NSS may terminate these Terms as to the affected Services and/or any applicable service order without incurring liability to Company for such termination; provided, however, that in such event NSS shall make a prorated refund of any prepaid amounts paid by Company related directly to the terminated Services/component for any time period for which the Service/component will not be received by Company. Notwithstanding the foregoing, the right of Company to a pro-rated refund does not apply to any product or Service which permitted download by Company or its customers of a research library upon initial payment, because the value for such service shall be deemed to have been received upon the initial grant of access.
10) Service Levels
- No Guarantee. NSS does not guarantee that the Service(s) will be operable at all times, including but not limited to any downtime (1) caused by outages to any public Internet backbones, networks, or servers; (2) caused by any failures of Company equipment, systems, or local access services; (3) for previously scheduled emergency maintenance; or (4) relating to any events beyond the control of NSS.
11) General Provisions
- Governing Law, Jurisdiction, and Venue. The rights and obligations of the parties shall be governed by, and these Terms (and any disputes or controversies arising thereunder) shall be construed and enforced in accordance with, the laws of the State of Delaware, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The parties agree that venue shall lie exclusively in New Castle County, Delaware, and they hereby consent to the personal jurisdiction of the federal and state courts therein, waiving all objections to such venue and jurisdiction, including that it is not convenient
- Severability. If any portion of these Terms is held to be unenforceable, the remainder of these Terms will remain valid and the offending provision shall be reformed to best effectuate the parties’ expressed intent (if doing so is possible and legally permissible); and if this reformation is not possible, the offending clause shall be deemed stricken from these Terms.
- Assignment. These Terms shall not be assigned by Company without NSS’ prior written consent, which will not be unreasonably withheld.
- Waiver. These Terms will inure to the benefit of the parties' permitted successors and assigns. Failure to enforce a right in one circumstance shall not be deemed waiver of such right in any other circumstance.
- Online Terms. Except as expressly set forth otherwise herein, all rights are cumulative. No amendment or waiver of these Terms will be binding unless it has been mutually agreed to in writing by both parties. Notwithstanding the foregoing, the parties acknowledge and agree that certain supplemental policies, requirements, and procedures, are contained in, and may be updated by NSS unilaterally via Online Terms, which are incorporated into these Terms by this reference. Changes posted via Online Terms are binding on Company after posting by NSS.
- Export. The Services are subject to U.S. Government export laws and regulations. Company shall not export, re-export, or transfer the Services or Confidential Information received from NSS without first obtaining the appropriate U.S. Government approvals.
- Order of Precedence. In the event of any conflict between or among any documents comprising, or coming under, these Terms, the following order of precedence shall apply in the following order from highest priority to lowest priority: (a) The Purchase Agreement or quote describing a particular order or NSS Services; (2) these Terms; (c) any service order executed between the parties; and (d) any applicable online terms, including the EULA.
- No Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in these Terms is intended to, or will be deemed or construed to, create any rights or remedies in any third party.
- Notices. Unless otherwise expressly provided herein, any notice, demand, request, or other communication required or permitted to be given under these Terms shall be made in writing (with notice deemed given upon receipt or refusal) by electronic mail, personal delivery, overnight courier, or certified or registered mail, return receipt requested; addressed to a party as provided in this Section or such other address as such party may request by notifying the other party (or parties) thereof in writing. It is incumbent upon each party to communicate to the other its preferred contact information, and no breach of this provision shall arise if improper communication from one party to the other is due to the failure of the receiving party to provide updated contact details. Any notice to NSS must be given to the following address in order to be effective:
Company Name NSS Labs, Inc. Attention Attention: CFO/In-House Counsel Street Address 206 Wild Basin Road, Bldg, A, Ste. 200 City, State, Zip Code Austin, TX 78746
Any notice to Client shall be addressed to representative listed on the Purchase Agreement or Sales Document. If no representative is listed by Client, notices to Client shall be sent to the most appropriate Client address on file with NSS.
- Counterparts. These Terms may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that a facsimile or PDF of a signed counterpart shall be as effective and have the same force and effect as the original thereof.
- Client Purchase Orders and Other Forms. All purchase orders, quotes (which shall set forth pricing/product related details), or other forms exchanged by the parties will be governed by these Terms. NSS is not bound by, and expressly rejects any terms in any such forms/orders which are provided by Company that are in conflict herewith or purport to delete terms, add terms, or vary the terms hereof (regardless of whether the form is signed or acknowledged by NSS).
- Inspection of Records. During the term of any Subscription under these Terms, and not more than once per year (unless circumstances warrant additional audits as described below), NSS may audit the Company's policies, procedures, and records that relate to the performance of the Company under these Terms to ensure compliance with these Terms upon at least ten (10) business days’ notice. Notwithstanding the foregoing, the parties agree that Company may conduct an audit at any time in the event of (i) audits required by Company’s or NSS’ governmental or regulatory authorities, or (ii) investigations of claims of misappropriation, fraud, or business irregularities of a potentially criminal nature.
- Entire Agreement. The terms and conditions of these Terms (including all Purchase Agreements, Sales Documents, any EULAs, and all other documents incorporated by reference) constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof.
- Updates to Terms of Service. NSS reserves the right to change or modify any of the terms and conditions contained in these Terms of Service, or any policy governing the Service, at any time, by posting the changes on its website (here or such other URL as NSS may provide). However, we will not change the indemnification or limitation of liability provisions to increase your obligations or decrease ours without your express written permission. You are responsible for regularly reviewing these Terms of Service and other applicable online policies. No amendment to or modification of the Agreement (excluding the Terms of Service) will be binding unless in writing and signed by a duly authorized representative of NSS and you. No amendment to or modification of the Terms of Service will be binding unless: (A) you accept updated terms online, or (B) you continue to use the Service after NSS has posted updates to the Terms of Service or to any policy governing the Service. In the event that there is any conflict between your Agreement and these Terms of Service, the provisions of your Agreement shall take precedence over the Terms of Service.
- Force Majeure. NSS shall be excused from performance hereunder to the extent that performance is prevented, delayed, or obstructed by causes beyond its reasonable control, including but not limited to fire, flood, war, terrorism, embargo, strike, riot, or the intervention of any governmental authority.
- Independent Contractor. NSS is an independent contractor to Company. Neither party is the legal representative, agent, joint venturer, partner, employee, or employer of the other party under these Terms for any purpose whatsoever. Neither party has any right, power, or authority to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other party, or to bind the other party in any respect.
- Survival. The rights and obligations contained in Sections 2(b), 2(c), 3, 4, 6, and 9(a) of these Terms shall survive any termination or expiration of these Terms.
- Publicity. Client hereby grants NSS permission to make reasonable use of the name and logo of Client for NSS’ promotional activities, marketing materials, and case studies.