THIS NULLADMIN SOFTWARE LICENSE AGREEMENT ("AGREEMENT") GOVERNS THE LICENSING, INSTALLATION AND USE OF NULLADMIN SOFTWARE. BY DOWNLOADING AND/OR INSTALLING NULLADMIN SOFTWARE: (a) you are indicating that you have read and understand this Agreement, and agree to be legally bound by it on behalf of the company, GOVERNMENT, or other entity for which you are acting (for example, as an employee OR GOVERNMENT OFFICIAL) or, if there is no company, GOVERNMENT or other entity for which you are acting, on behalf of yourself as an individual; and (b) you represent and warrant that you have the authority to act on behalf of and bind SUCH company, GOVERNMENT OR OTHER ENTITY (if any).
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING AN ORDER FOR THE NULLADMIN SOFTWARE, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
As used in this Agreement, "Nulladmin" refers to Nulladmin, LLC. a company with principal place of business at 2269 Chestnut St., San Francisco, California 94123, U.S.A.; and "Customer" refers to the company, government, or other entity on whose behalf you have entered into this Agreement or, if there is no such entity, you as an individual.
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A.
2. LICENSE GRANTS
2.1 Purchased Software. Subject to Customer's compliance with this Agreement, including Customer's timely payment of all License Fees, Nulladmin grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Purchased Software within the Licensed Capacity solely for Customer's Internal Business Purposes.
2.2 Evaluation Software. If the applicable Order specifies that any Software is provided under an evaluation license or a free trial license, then subject to Customer's compliance with this Agreement, Nulladmin grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Evaluation Software within the Licensed Capacity solely for evaluating whether Customer wishes to purchase a commercial license for such Software. Notwithstanding anything to the contrary in this Agreement, Nulladmin does not provide maintenance and support (Section 7) or warranty (Section 10) with respect to Evaluation Software.
2.3 Test and Development Software. If the applicable Order specifies that any Software is provided under a test and development license, then subject to Customer's compliance with this Agreement, Nulladmin grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Test and Development Software within the Licensed Capacity in a non-production system used for software product migration testing, software product pre-production staging, testing new data sources, types or use cases, or other non-production use. In no way should the Test and Development Software be used for any revenue generation, commercial activity or other productive business or purpose. Notwithstanding anything to the contrary in this Agreement, Nulladmin does not provide warranty (Section 10) with respect to the Test and Development Software.
2.4 Free Software. Nulladmin may make certain Software available for license without charge, and such Free Software may have limited features, functions, or other limitations of any kind. Subject to Customer's compliance with this Agreement, Nulladmin grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Free Software within the Licensed Capacity solely for Customer's Internal Business Purposes. Notwithstanding anything to the contrary in this Agreement, Nulladmin does not provide maintenance and support (Section 7) or warranty (Section 10) with respect to Free Software.
2.5 Content Subscription. When the applicable Order specifies a Content Subscription service as elected by Customer, Nulladmin will deliver or otherwise make available the applicable Content Subscription service to Customer during the subscription period, and subject to Customer's compliance with this Agreement (including Customer's timely payment of all applicable Content Subscription Fees), Nulladmin grants to such Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable subscription period to install and use the subscribed content solely in connection with the designated Purchased Software and solely for Customer's Internal Business Purposes. Such content will be treated as Purchased Software under this Agreement except that Section 10 (Warranty) will not apply.
2.6 Open Source Software. Customer acknowledges that certain Software may contain Open Source Software. Open Source Software may be identified in the end user documentation or in a list of the Open Source Software provided to Customer upon Customer's written request. Any Open Source Software that is delivered to Customer as part of Purchased Software, and which may not be taken out of the Purchased Software or used separately from the Purchased Software is covered by the warranty, support and indemnification provisions applicable to Purchased Software. Customer acknowledges that specific terms required by the respective licensor of the Open Source Software may apply to the use of Open Source Software, which terms shall be included in the documentation; however, these terms will not: (a) impose any additional restrictions on Customer's use of the Software, or (b) negate or amend Nulladmin's responsibilities with respect to Purchased Software.
3. LICENSE RESTRICTIONS. Unless otherwise expressly permitted by Nulladmin, Customer will not and Customer has no right to: (a) copy any Nulladmin Materials (except as required to run the Software and for reasonable backup purposes); (b) modify, adapt, or create derivative works of any Nulladmin Materials; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Nulladmin Materials to any third party; (d) decompile, disassemble or reverse-engineer any Nulladmin Materials, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Nulladmin Materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (e) access or use any Disabled Materials; (f) provide to any third party the results of any benchmark tests or other evaluation of any Nulladmin Materials without Nulladmin's prior written consent; (g) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Nulladmin Materials (including in order to gain access to any Disabled Materials); (h) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Nulladmin Materials; (i) exceed the Licensed Capacity or violate other license limitations identified elsewhere in this Agreement; (j) separately use any of the applicable features and functionalities of the Nulladmin Materials with external applications or code not furnished by Nulladmin or any data not processed by the Software, except otherwise specifically permitted in the Documentation; (k) misuse the Software or use the Software for any illegal, harmful, fraudulent, or offensive purposes; (l) otherwise access or use any Nulladmin Materials except as expressly authorized in this Agreement; or (m) encourage or assist any third party to do any of the foregoing. Customer acknowledges that the Software may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if the Term expires or the Licensed Capacity is reached or exceeded.
4. SERVICE PROVIDERS. Customer may permit its authorized consultants, contractors, and agents ("Service Providers") to access and use the Software solely on Customer's behalf in connection with providing services to Customer, subject to the terms and conditions of this Agreement. Any such access or use by a Service Provider will be subject to the same limitations and restrictions that apply to Customer under this Agreement, and Customer will be jointly and severally liable for any Service Provider's actions relating to or use of the Software. For avoidance of doubt, the aggregate use by Customer and all of its Service Providers must not exceed the Licensed Capacity and nothing in this Section 4 is intended to or will be deemed to increase any Licensed Capacity.
5. OWNERSHIP. Nulladmin, its suppliers and/or licensors own all worldwide right, title and interest in and to the Nulladmin Materials, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2, Customer will not acquire or claim any right, title or interest in or to any Nulladmin Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the Software is licensed, not sold, to Customer. To the extent that Customer provides any Feedback, Customer grants to Nulladmin a perpetual, irrevocable, worldwide, nonexclusive, transferable, sublicensable, royalty-free, fully paid-up right and license to use and commercially exploit the Feedback in any manner Nulladmin deems fit.
6. LICENSE AND SUBSCRIPTION FEES. Customer will pay all license fees set forth in the Order (the "License Fees") for the Software delivered to Customer no later than thirty (30) days after the date of Nulladmin's applicable invoice. Customer will also pay all content subscription fees as may be applicable to the Purchased Software, as identified in the Order (the "Content Subscription Fees", collectively together with License Fees, the "Fees"). Without limitation of Nulladmin's other termination rights, if Customer fails to pay the Fees when due, then Nulladmin may terminate this Agreement and all licenses granted hereunder by notice to Customer. All Fees are non-refundable once paid. Any fees and payment terms for Nulladmin software not included in the Order will be as set forth on the download page for such Nulladmin software.
7. MAINTENANCE AND SUPPORT. If Customer has purchased support and maintenance for the Purchased Software as set forth in the Order (the "Support Services"), then Nulladmin will provide the level of support and maintenance included in the Order in accordance with the terms and conditions set forth in Exhibit B.
8. CONFIGURATION SERVICES. Subject to Customer's payment of applicable fees, Nulladmin will provide the deployment, usage assistance, configuration, and/or training services (if any) set forth in the Order (the "Professional Services") in accordance with Nulladmin's standard professional services terms and conditions provided at https://nulladmin.com/legal/professional-services-agreement.html, which terms and conditions are hereby incorporated by reference and made a part of this Agreement.
9. SOFTWARE VERIFICATION AND AUDIT. At Nulladmin's request, Customer will furnish Nulladmin with a certification signed by Customer's authorized representative verifying that the Software is being used in accordance with this Agreement and the applicable Order. Also, if Customer has purchased an offering that requires usage reporting as identified in the Order, Customer agrees to provide such reporting pursuant to the requirements set forth by Nulladmin. Upon at least ten (10) days' prior written notice to Customer, Nulladmin may audit Customer's (and its "Service Providers") use of the Software to ensure that Customer (and such Service Providers) are in compliance with this Agreement and the applicable Order. Any such audit will be conducted during regular business hours at Customer's (and/or its Service Providers) facilities, will not unreasonably interfere with Customer's (or its "Service Providers") business and will comply with Customer's (or its "Service Providers") reasonable security procedures. Customer will (and will ensure that its Service Providers) provide Nulladmin with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer (and/or any Service Provider) has exceeded the Licensed Capacity or the scope of Customer's license grant during the period audited, then Nulladmin will invoice Customer, and Customer will promptly pay Nulladmin any underpaid Fees based on Nulladmin's price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the Licensed Capacity, then Customer will also pay Nulladmin's reasonable costs of conducting the audit. Customer will ensure that its Service Providers provide Nulladmin with the access described in this Section 9 (Software Verification and Audit). This Section 9 will survive expiration or termination of this Agreement for a period of three (3) years.
10. WARRANTY. Nulladmin warrants that for a period of thirty (30) days from the Delivery of Purchased Software, the Purchased Software will substantially perform the material functions described in Nulladmin's user documentation for such Purchased Software, when used in accordance with the user documentation. The sole liability of Nulladmin (and its Affiliates and suppliers/licensors), and Customer's sole remedy, for any failure of the Purchased Software to conform to the foregoing warranty, is for Nulladmin to do one of the following (at Nulladmin's sole option and discretion): (a) modify, or provide an Enhancement for, the Purchased Software so that it conforms to the foregoing warranty, (b) replace Customer's copy of the Purchased Software with a copy that conforms to the foregoing warranty, or (c) terminate the license with respect to the non-conforming Purchased Software and refund the License Fees paid by Customer for such non-conforming Purchased Software. All warranty claims must be made by written notice from Customer to Nulladmin on or before the expiration of the warranty period, as detailed in Section 23.2 below.
11. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10 ABOVE, THE NULLADMIN MATERIALS, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, NULLADMIN AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 10, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, NULLADMIN DOES NOT WARRANT THAT USE OF THE SOFTWARE OR NULLADMIN MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
12. LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) NULLADMIN AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS (INCLUDING AUTHORIZED PARTNERS AS DEFINED IN SECTION 20 BELOW) AND LICENSORS (THE "NULLADMIN ENTITIES") WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) "NULLADMIN ENTITIES" TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO NULLADMIN FOR THE PURCHASED SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER NULLADMIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT NULLADMIN, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER'S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER'S (AND ITS SERVICE PROVIDER'S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).
13. CONFIDENTIAL INFORMATION.
13.1 Confidential Information. "Confidential Information" means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked "confidential" or "proprietary" at the time of such disclosure; (b) if disclosed orally, is identified as "confidential" or "proprietary" at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Nulladmin will include the Nulladmin Materials (including any license keys).
13.2 Use and Disclosure Restrictions. The party receiving Confidential Information ("Recipient") agrees: (a) to maintain the Confidential Information of the party disclosing such information (the "Discloser") in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, and subcontractors (collectively, "Representatives"), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party's Confidential Information as those set forth herein. Recipient's obligations under this Section 13 will continue in effect for a period of three (3) years from the date of last disclosure of Confidential Information by Discloser, except that Customer's obligations under this Section 13 will continue in effect in perpetuity with respect to Nulladmin Materials.
13.3 Exclusions. The obligations of Recipient under Section 13.1 will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
13.4 Required Disclosures. The provisions of Section 13.1 will not restrict Recipient from disclosing Discloser's Confidential Information to the extent required by any law enforcement agencies or regulators or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure as appropriate in order to enable Discloser to prevent or limit disclosure.
13.5 Return or Destruction of Confidential Information. Upon termination of the Agreement or support and maintenance, Recipient will promptly return to Discloser or, at Discloser's option, destroy all tangible items and embodiments containing or consisting of Discloser's Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
13.6 Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 13, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient's becoming aware of any such breach or threatened breach.
14. TERM. This Agreement will commence upon Nulladmin's first Delivery of the Software specified in the Order (or, Nulladmin's other initial delivery of the Software to Customer) and will remain in effect until the expiration of the applicable Software license term, unless earlier terminated pursuant to Section 15 (the "Term"). For the avoidance of doubt, termination of a license term shall not affect the term of any other licenses applicable to other Nulladmin products and services that Customer has purchased. Further, termination of a Content Subscription shall not affect the term of the base license applicable to the Software that Customer has purchased.
14.1 Purchased Software, etc. Unless otherwise indicated in the Order, the Term for Purchased Software and Free Software, if applicable, will continue indefinitely, unless and until terminated pursuant to Section 15. If the Order indicates a Term of a specific duration for any of the foregoing, the licenses granted to Customer for such Purchased Software or Free Software will terminate automatically upon expiration of such Term. Upon expiration of any Term, the applicable Software will stop working automatically.
14.2 Evaluation Software. If Customer is granted a license for Evaluation Software, then the Term for such Evaluation Software will be specified in the Order or with the license key. If no such term is specified, the Term for Evaluation Software is thirty (30) days from the date the license key is delivered. Any license keys provided for Evaluation Software will automatically expire and cause the Evaluation Software to become non-operational at the end of the Term. If Customer wishes to use the Evaluation Software after the Term expires, then Customer must obtain the applicable paid license.
15. TERMINATION. Either party may terminate this Agreement by written notice to the other party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving written notice of the breach pursuant to Section 22.2 below. In addition, Nulladmin may immediately terminate this Agreement (in whole or in part, including with respect to any Term) by written notice to Customer (a) if Customer materially breaches Section 3, and (b) as set forth in Section 6. Nulladmin may also terminate Customer's license to any Evaluation Software at any time with or without cause by notice to Customer. If Customer is the Government, then termination terms and conditions will be governed by 48 C.F.R. 52.212-4. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will automatically terminate, and Customer agrees to cease immediately using the Nulladmin Materials and to return or destroy all copies of the Nulladmin Materials and other Nulladmin Confidential Information in Customer's possession or control, and certify in writing the completion of such return or destruction in accordance with Section 13.5. Upon termination of this Agreement, Nulladmin will have no obligation to refund any Fees or other amounts received from Customer during the Term, and notwithstanding any early termination above, Customer shall still be required to pay all Fees payable under an Order (i.e., no such early termination shall relieve Customer of its obligations to pay all Fees payable under an Order) unless otherwise provided in this Agreement. Termination of Support and Maintenance Terms and Conditions due to Nulladmin's breach is provided in Section 3.2 of Exhibit B. Section 1 (Definitions), Section 5 (Ownership), Section 9 (Software Verification and Audit), Section 11 (Warranty Disclaimer), Section 12 (Limitation of Liability), Section 13 (Confidentiality), Section 15 (Termination) and Sections 16 (Export) through 22 (General) will survive any expiration or termination of this Agreement.
16. EXPORT. Customer will comply fully with all relevant export laws and regulations of the United States and any other country ("Export Laws") where Customer uses any of the Nulladmin Materials. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department's List of Specially Designated Nationals and the Commerce Department's List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer or otherwise use the Nulladmin Materials in any country subject to an embargo or other sanction by the United States, and that Customer will not use the Nulladmin Materials for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
17. GOVERNMENT END USER RIGHTS. Customer acknowledges that all Nulladmin Materials were developed entirely at private expense and that no part of the Nulladmin Materials was first produced in the performance of a government contract. Customer agrees that all Nulladmin Materials and any derivatives thereof are "Commercial Items" as defined in 48 C.F.R. 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. 12.211, 48 C.F.R. 12.212, 48 C.F.R. 227.7102-2, and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.211, 48 C.F.R. 12.212, 48 C.F.R. 227.7102-1 through 48 C.F.R. 227.7102-3, and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Nulladmin Materials are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Nulladmin Materials except as expressly agreed to in writing by Customer and Nulladmin.
18. PUBLICITY. Customer agrees that Nulladmin may publish a brief description of Customer's deployment of the Software and identify Customer as a Nulladmin customer on any of Nulladmin's websites, client lists, press releases, and/or other marketing materials.
19. THIRD PARTY CONTENT DISCLAIMER. Certain materials available for download on Nulladmin are developed and/or provided by third parties ("Third-Party Content"). Nulladmin makes such Third-Party Content available for download on Nulladmin websites as a convenience to its customers, but Nulladmin neither controls nor endorses, nor is Nulladmin responsible for, any Third-Party Content, including the accuracy, integrity, quality, legality, usefulness or safety of Third-Party Content. Certain Third-Party Content may, among other things, be inaccurate, nonfunctional, infringing or dangerous. Nothing in this Agreement or on Nulladmin websites will be deemed to be a representation or warranty by Nulladmin with respect to any Third-Party Content, even if a particular item of Third-Party Content is identified as "certified" for use with Software. Nulladmin has no obligation to monitor Third-Party Content, and Nulladmin may block or disable access to any Third-Party Content at any time. In addition, the availability of any Third-Party Content through Nulladmin websites does not imply Nulladmin's endorsement of, or affiliation with, any provider of such Third-Party Content, nor does such availability create any legal relationship between Customer and any such provider. Customer's use of Third-Party Content is at Customer's own risk and may be subject to any additional terms, conditions and policies applicable to such Third-Party Content (such as license terms, terms of service or privacy policies of the providers of such Third-Party Content).
20. AUTHORIZED PARTNERS. If Customer acquired the Software through an authorized reseller, partner or OEM of Nulladmin ("Authorized Partner") then, notwithstanding anything to the contrary in this Agreement: (a) Customer's use of the Software is subject to any additional terms in the agreement provided by the Authorized Partner; (b) Customer agrees to pay the Authorized Partner the Fees and other applicable fees, and Customer will have no direct Fee payment obligations to Nulladmin for such Software; (c) Customer's agreement with the Authorized Partner is between Customer and the Authorized Partner and is not binding on Nulladmin; and (d) Nulladmin may terminate this Agreement (including Customer's right to use the Software) if Nulladmin does not receive payment for Customer's use of the Software from the Authorized Partner or if Customer breaches any term of this Agreement. If Customer's warranty and support terms stated in its agreement with the Authorized Partner are different from those set forth in this Agreement, then such different terms are solely between Customer and the Authorized Partner and Nulladmin will have no obligations to Customer under this Agreement with respect to such different terms. Except as set forth in the preceding sentence, if there is any conflict or inconsistency between this Agreement and Customer's agreement with Authorized Partner, then this Agreement will control (and will resolve such inconsistency) as between Nulladmin and Customer.
21. CHOICE OF LAW AND DISPUTES. Unless Customer is the Government, this Agreement will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California, and the parties hereby consent to personal jurisdiction and venue therein (except that Nulladmin may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Nulladmin Materials in any court of competent jurisdiction). If Customer is the Government, this Agreement will be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. 7101-7109). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement will be a dispute to be resolved in accordance with the clause at 48 C.F.R 52.233-1, which is incorporated in this Agreement by reference.
22.1 Purchase Order. Customer's issuance of a purchase order constitutes acceptance of this Agreement notwithstanding anything to the contrary in such purchase order. If any purchase order contains any terms or conditions that are different from or additional to the terms and conditions set forth in this Agreement, then Nulladmin expressly rejects such different or additional terms and conditions, and such different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice or license key that Nulladmin may issue.
22.2 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order or to such other address as may be specified by either party to the other party in accordance with this Section.
22.3 Assignment. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of Nulladmin. Nulladmin may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Nulladmin's assets to which this Agreement relates. Nulladmin may also assign its rights to receive payment due as a result of performance of this Agreement to a bank, trust company, or other financing institution, including any federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727) and may assign this Agreement in accordance with the provisions at 48 C.F.R 42.12, as applicable. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties' permitted successors and assigns.
22.4 Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
22.5 Waiver; Severability. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
22.6 Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (c) the words "include" and "including" will not be construed as terms of limitation, and will therefore mean "including but not limited to" and "including without limitation"; (d) unless otherwise specifically stated, the words "writing" or "written" mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (e) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (f) the references herein to the parties will refer to their permitted successors and assigns.
22.8 Integration; Entire Agreement. This Agreement along with any additional terms incorporated herein by reference, including the Order and the Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence.
EXHIBIT A DEFINITIONS
1. "Affiliate," with respect to a party, means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, "control" means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
2. "Authorized Partner" has the meaning set forth in Section 20.
3. "Confidential Information" has the meaning set forth in Section 13.1.
4. "Content Subscription" means certain entitlement for Customer to receive a collection of updated contents applicable to the Purchased Software (such as models, rules and configurations, as further described in the relevant end user documentation for the Purchased Software) on a periodic basis for the duration of the subscription period. This can be purchased as an add-on service to the term license or perpetual license to the applicable Purchased Software as identified in the Order.
5. "Content Subscription Fees" has the meaning set forth in Section 6.
6. "Delivery" means the date of Nulladmin's initial delivery of the license key for the applicable Software or otherwise making the applicable Software available for download by Customer.
7. "Disabled Materials" means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Software as part of the delivery mechanism used by Nulladmin, but that are disabled or hidden in Customer's setting, because Customer either: (a) does not have the relevant license or license key, or (b) has not paid the applicable Fees, for those materials.
8. "Enhancements" means any updates, upgrades, releases, fixes, enhancements or modifications to the Purchased Software made generally commercially available by Nulladmin to its support customers under the terms and conditions set forth in Exhibit B.
9. "Evaluation Software" means Software that is specified in an Order as provided under an evaluation license or a free trial license.
10. "Feedback" means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Nulladmin in connection with Nulladmin's Software. Feedback does not include any data, results or output created or generated by Customer using the Software, unless specifically submitted or communicated by Customer to Nulladmin as part of the Feedback.
11. "Free Software" means Software that is specified in an Order as provided to Customer without charge (other than Evaluation Software).
12. "Government" means an agency, department, or instrumentality of the United States government.
13. "Intellectual Property Rights" means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
14. "Internal Business Purpose" means Customer's use for its own internal business operations on Customer's systems, networks and devices with Customer's data. Such use does not include use by Customer on a service bureau basis or otherwise to provide services to, or process data for, any third party.
15. "Licensed Capacity" means the maximum usage of the Software (e.g., number of running or provisioned copies, bandwidth usage, number of stored objects, number of users, etc.) that is permitted under the type of license included in the applicable Order.
16. "License Fees" has the meaning set forth in Section 6.
17. "Open Source Software" means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.
18. "Order" means Nulladmin's quote, statement of work, or ordering document accepted by Customer or Customer's purchase order or other ordering document submitted to Nulladmin (directly or indirectly through an Authorized Partner or Nulladmin websites) to order Nulladmin Materials or services, which references the products, services, pricing and other applicable terms set forth in an applicable Nulladmin quote or ordering document.
19. "Professional Services" has the meaning set forth in Section 8.
20. "Purchased Software" means Software that is licensed to Customer and for which Customer has paid a License Fee to Nulladmin, whether directly or through an Authorized Partner.
21. "Service Providers" has the meaning set forth in Section 4.
22 "Nulladmin websites" means Nulladmin's online properties currently located at https://nulladmin.com/ and any and all successors, replacements, new versions, derivatives, updates and upgrades thereto.
23. "Nulladmin Materials" mean the Software, Software license keys, and end user documentation relating to the foregoing.
24. "Software" means the Software products listed in an Order and any Enhancements thereto made available to Customer by Nulladmin.
25. "Support Services" has the meaning set forth in Section 7.
26. "Term" has the meaning set forth in Section 14.
27. "Test and Development Software" means Software that is specified in an Order as provided under a test and development license.
28. "Third-Party Content" has the meaning set forth in Section 19.
SUPPORT AND MAINTENANCE TERMS AND CONDITIONS
Customer agrees that the following terms and conditions ("Terms and Conditions") will govern the delivery of any support and/or maintenance services by Nulladmin ("Support") listed on an Order entered into pursuant to the Software License Agreement (the "Agreement") to which these Terms and Conditions are attached and made a part thereof. Subject to Customer's termination rights set forth in the Agreement, ordering any Support from Nulladmin or any Authorized Partner indicates Customer's acceptance of these Terms and Conditions. These Terms and Conditions are effective upon receipt and confirmation of acceptance of Customer's purchase order by Nulladmin or an Authorized Partner (the "Effective Date").
1. DEFINITIONS. Unless otherwise defined in these Terms and Conditions, capitalized terms have the meanings set forth in the Agreement.
2. SUPPORT AND MAINTENANCE.
2.1 Services. Subject to Customer's timely payment of the applicable annual Support fees set forth in the Order (the "Support Fees"), Nulladmin will provide the level of Support identified in the Order in accordance with the Support descriptions set forth below. No other maintenance or support for the Software is included.
2.2 Support Fees. Support Fees will be due and payable in accordance with the Order. Nulladmin will notify (electronically or otherwise) Customer of the then-current annual Support Fee for Customer's level of Support in each notice of term renewal. Support Fees are non-refundable once paid.
2.3 Exclusions. Nulladmin will have no obligation of any kind to provide Support for issues caused by or arising out of any of the following (each, a "Licensee-Generated Error"): (i) modifications to the Software not made by Nulladmin; (ii) use of the Software other than as authorized in the Agreement or as provided in the documentation for the Software; (iii) damage to the machine on which the Software is installed; (iv) Customer's continued failure to use the Software without reference to the documentation; (v) versions of the Software other than the Supported Version (defined in Section 2.5.6); (vi) third-party products not expressly supported by Nulladmin and described in the documentation; or (vii) conflicts related to replacing or installing hardware, drivers, and software that are not expressly supported by Nulladmin and described in the documentation. If Nulladmin determines that support for an issue caused by a Licensee-Generated Error, Nulladmin will notify Customer as soon as reasonably possible under the circumstances. If Customer agrees that Nulladmin should provide support for the Licensee-Generated Error via a confirming email, then Nulladmin will have the right to invoice Customer at Nulladmin's then-current time and materials rates for any such support provided by Nulladmin.
2.4 Restrictions. Support is delivered only in English unless Customer is in a location where Nulladmin has made localized Support available.
2.5 Support Descriptions.
2.5.1 Nulladmin Support.Customer's Order will identify the level of Support Customer purchases for the applicable Purchased Software. ("Support Programs"). Support cases are handled based on case priority levels as determined by Nulladmin.
2.5.2 Authorized Support Contacts. Support will be provided solely to the authorized individual(s) specified by Customer that Nulladmin will communicate with that individual(s) when providing Support ("Support Contacts"). Nulladmin strongly recommends that Customer's support contact(s) be trained on the Purchased Software. Customer's Order will indicate a maximum number of authorized Support Contacts for Customer's license level. Customer will be asked to designate Customer's authorized support contacts, including their primary email address and Nulladmin.com login ID, following Nulladmin's acknowledgment of Customer's Order.
2.5.3 Defect Resolution. Should Nulladmin in its sole judgment determine that there is a defect in the Purchased Software, it will, at its sole option, repair that defect in the version of the Software that Customer is currently using or instruct Customer to install a newer version of the Software with that defect repaired. Nulladmin reserves the right to provide Customer with a workaround in lieu of fixing a defect should it in its sole judgment determine that it is more effective to do so.
2.5.4 Support Hours. Support is provided via telephone, email and web portal. Support will be delivered during the regional hours of operation listed in the level of Support the Customer purchases for the applicable Purchased Software.
2.5.5 Customer's Obligation to Assist. Should Customer report a purported defect in the Purchased Software to Nulladmin, Nulladmin may require Customer to provide them with the following information: (a) a general description of the operating environment, (b) a list of all hardware components, operating systems and networks, (c) a reproducible test case, and (d) any log files, trace and systems files. Customer's failure to provide this information may prevent Nulladmin from identifying and fixing that purported defect.
2.5.6 Software Upgrades and Software Support Policy. When available, Nulladmin provides updates, upgrades, maintenance releases only to Nulladmin Support customers. Software comes with a three-digit number version. The first digit represents the major release (i.e., upgrade), the second digit identifies the minor releases (i.e., updates) and the third digit identifies the maintenance releases. With a new major version, the number to the left of the decimal is changed and for minor releases, the number to the right of the decimal point is increased. Subject to the foregoing, Nulladmin provides Support for the current version and the previous major version, defined as "Supported Versions".
2.6 Changes in Support and Software. Subject to the Support Policy, Customer acknowledges that Nulladmin has the right to discontinue the manufacture and development of any Software and the Support for any Software, including the distribution of older Software versions, at any time in its sole discretion, provided that Nulladmin agrees not to discontinue Support for the Software during the current annual term of these Terms and Conditions, subject to the termination provisions herein. Nulladmin reserves the right to alter Support from time to time, using reasonable discretion but in no event will such alterations result in (i) diminished support from the level of Support set forth herein; (ii) materially diminished obligations for Nulladmin; (iii) materially diminished Customer's rights; or (iv) higher Support Fees during the then-current term. Nulladmin will provide Customer with thirty (30) days' prior written notice (delivered electronically or otherwise) of any permitted material changes to the Support contemplated herein.
3. TERM AND TERMINATION.
3.1 Term. These Terms and Conditions will commence on the Delivery date and, unless terminated earlier in accordance with the terms of the Agreement, for a period of one (1) year (or for term purchased if different than one year) thereafter (the "Initial Term"). These Terms and Conditions will automatically renew for additional one (1)-year terms (or for term purchased if different than one year) (each, a "Renewal Term," and the Initial Term, collectively with any and all Renewal Terms, will be referred to as the "Support Term"), unless either party provides the other (or if purchased through an Authorized Partner, Customer provides the Authorized Partner) with written notice of its intent not to renew these Terms and Conditions at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term. Customer must purchase and/or renew Support for all of the licenses for a particular Software product. If the Support Term lapses, Customer may seek to re-activate Support by submitting a purchase order that includes fees for the lapsed period plus a reinstatement fee.
3.2 Termination. Either party may terminate these Terms and Conditions by written notice to the other party if the other party materially breaches this Agreement or these Terms and Conditions and does not cure the breach within thirty (30) days of receiving notice of the breach. If Customer terminates the Agreement for Nulladmin's uncured material breach of these Terms and Conditions, then Nulladmin will refund any unused prepaid fees to Customer as Customer's sole and exclusive remedy.
4. FORCE MAJEURE. Nulladmin will not be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.