1. NS8 SERVICES
1.1 Applicability. This End User License Agreement ("EULA") applies to all NS8 Inc. ("NS8") Services ordered by you ("Services") from the NS8 Website, or any third-party website where NS8 Services may be purchased, or in any order of NS8 Services or business proposal, including any attachments thereto (collectively, "Service Order"). Together this EULA and the NS8 Service Level Agreement ("SLA") (available at https://www.ns8.com/policies/sla/) make up the "Agreement" between you and NS8, unless otherwise subject to a separate agreement between you and NS8.
1.2 Service Description. Commencing as soon as practicable after the Effective Date and continuing throughout the Term of this Agreement and subject to the terms herein, NS8 will use commercially reasonable efforts to provide the Services subject to: (a) NS8's acceptance of the Service Order; and (b) your satisfaction of all conditions, dependencies and other requirements reasonably imposed by NS8, including those specified in the Service Order. Subject to the terms hereof, the features, functionality and all other aspects of the Services shall be as determined by NS8.
1.3 Service Levels. NS8 will provide Services to you in accordance with any Service Level commitments reflected in the SLA
2. OWNERSHIP OF NS8 SERVICE INFRASTRUCTURE
2.1 Rights in NS8 Service Infrastructure. NS8 shall retain all right, title and interest in and to the NS8 Service Infrastructure, including any and all modifications. Except as specifically provided in this Agreement, you shall not have physical or electronic access to the NS8 Service Infrastructure. You will not, and will not authorize any third party to (a) create derivative works of, adapt, alter or, in any way, modify the NS8 Service Infrastructure or any part thereof without the prior written consent of NS8, or (b) translate, decompile, disassemble, reverse compile, reverse engineer or decode any software included in the NS8 Service Infrastructure, or in any other manner reduce such software to human readable form.
3. LICENSE GRANTS, CONFIDENTIALITY AND ACCEPTABLE USE
3.1 License Grants. In connection with the Services provided under this Agreement, you may from time to time provide NS8 with certain data ("Client Data"), including without limitation, IP address, user agent, browser information, and order data. You grant to NS8 and NS8 accepts a non-exclusive, non-transferable, non-assignable, royalty-free license, for the term of and solely for the purposes of this Agreement, to use Client Data for the purposes of providing the Services. You further acknowledge that NS8 may use the Client data, solely in aggregate and anonymous format, for other business and commercial purposes, including statistical analysis with respect to end user usage and traffic patterns, provided that such information does not include personally identifiable information.
3.2 Confidentiality. NS8 will not disclose Client Data to any third party without your prior written consent, provided however, that the foregoing shall not apply to any information which is publicly available or which NS8 is required to disclose by law or judicial order.
3.3 User Sign Up Obligations. You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address. You agree to: a) provide true, accurate, current and complete information about yourself as prompted by the sign-up process; and b) maintain and promptly update the information provided during sign-up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if NS8 has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, NS8 may terminate your user account and refuse current or future use of any or all of the Services.
3.4 Communications from NS8. The Services may include certain communications from NS8, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services.
3.5 Acceptable Use.
3.5.1 You shall not use, nor shall knowingly or recklessly permit others to use, the Services:
(a) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose; (b) to send any virus, worm, trojan horse or harmful code or attachment; (c) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (d) for the transmission of "junk mail", "spam", "chain letters", "phishing" or unsolicited mass distribution of email; (e) in a manner which, in NS8's opinion, is inconsistent with the generally accepted rules of internet etiquette and conduct. You agree that NS8 shall under no circumstances be held liable on account of any action it takes, in good faith, to restrict transmission of material that it or any recipient considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
3.5.2 You further agree that you shall not, nor shall you recklessly or knowingly permit others to: (i) alter, tamper with, adjust, repair or circumvent any aspect of the Services provided by NS8; or (ii) resell, pass-through, sublicense, rent, lease, timeshare or rebrand the Services provided by NS8 or otherwise provide such services to any party not within your enterprise and related personnel. Your rights to use the Services are non-exclusive, non-transferable and subject to compliance with the terms and conditions herein.
3.5.3 If you purchased NS8 Services online from the NS8 Website, or any third-party website where NS8 Services may be purchased, you will designate a password at the time of purchase. You agree that you shall be responsible for all actions or breach occurring through the use of your password. You agree to keep your password confidential and to notify NS8 within 24 hours of any breach of password confidentiality or any other unauthorized use of your password.
4. FEES AND PAYMENTS
4.1 Throughout the term of this Agreement, you shall pay NS8 when due and without offset or deduction, all fees and charges, determined in accordance with the fee schedule established by NS8 for the Services ordered by you less any applicable discounts, or as otherwise provided in the Service Order (the "Fees"). You will also pay or reimburse NS8 for all sales, use, excise, and other taxes and governmental charges (other than income taxes) which NS8 is at any time required to pay or collect in connection with the furnishing of software, information or services under this Agreement.
4.2 Online Purchase. If you purchased NS8 Services online from NS8's website, or any third-party website where NS8 Services may be purchased, via credit card, NS8 willcharge your credit card for all fees due for any NS8 Services monthly or annually, as applicable, in advance for Initial Term and subsequently for any renewal terms. Additionally, you will be charged on a monthly basis for any usage of the NS8 Services in excess of the amounts provided pursuant to your standard base monthly or annual fees.
4.3 Invoice Purchase. If you pay through invoice process, all fees due for any NS8 Services shall be invoiced monthly in advance for Initial Term and subsequently for any renewal terms. Your payment shall be accompanied by a reference to NS8's billing invoice number. Invoices shall be sent via e-mail addressed to the primary billing contact provided in the NS8 Service Order or at such other location as the parties may agree in writing. Fees shall be paid to NS8 at the address specified in the billing invoice or at such other place as NS8 may designate in writing. Payments are due no later than thirty (30) days following the date posted on NS8's invoice, unless specified differently in a service order, invoice, or agreement.
4.4 Suspended Services. NS8 may suspend performance or provision of its services or terminate this Agreement for late or non-payment of fees, and you shall be liable for any reasonable attorneys' fee or collection agency fees incurred by NS8 in connection with your non-payment of undisputed fees. Interest may be charged by NS8 for overdue fees and charges at the rate of one and one-half percent (1.5%) per month or the maximum amount allowed by law, whichever is less, commencing with the date payment was due. Any services upgrades requested by you may result in additional fees or other charges.
4.5 Inactive User Accounts Policy. We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 90 days. In the event of such termination, all data associated with such user account will be deleted. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not su?cient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
You hereby warrant and represent to NS8 as follows:
5.1 Authority. You have the corporate power and corporate authority to enter into this Agreement and have duly and validly authorized this Agreement.
5.2 NS8 Warrants: NS8 hereby warrants and represents to you as follows:
5.2.1 Limited Service Warranty. NS8 warrants that the Services will meet or exceed the standards defined in any applicable NS8 SLA. Your sole and exclusive remedy for failure to comply with such standards shall be as defined in the applicable NS8 SLA.
5.2.2 NS8 has the corporate power and corporate authority to enter into this Agreement and has duly and validly authorized this Agreement.
5.3 Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PARTIES AGREE THAT ANY SERVICES OR MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS".
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Indemnification. You shall indemnify, defend and hold harmless NS8, and its corporate parent, affiliates, directors, officers, employees and agents from and against any and all claims, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) that have been incurred or awarded against NS8 arising from: (i) any breach of your duty, obligation, representation or warranty under this Agreement; (ii) any injury to persons or property caused by your use of the Services; (iii) your data or other material supplied by you infringing or allegedly infringing on the proprietary rights of a third party; (iv) unavailability, interruption or inoperability of your systems and/or NS8 Services. Your obligations hereunder are conditioned upon: (i) NS8 providing reasonable cooperation to you in connection with the defense and/or settlement of any such claim at your expense; and (ii) NS8 providing reasonable notice to you of any and all claims under this indemnity, provided that failure to provide such notice will not affect your indemnity obligation unless NS8's delay in providing notice materially prejudices your ability to defend such claim. NS8 will be entitled to participate, at its own expense, in the defense and settlement of any such claim. You will not be entitled to settle any claim under this section which settlement would materially impact NS8 without the prior written consent of NS8 which consent will not be unreasonably withheld.
6.2 Limitation of Liability. NEITHER YOU NOR NS8, NOR THE RESPECTIVE AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES OR YOU OR NS8, WILL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, TORT OR COVER DAMAGES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER OR NOT YOU OR NS8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR: (A) UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION, OR DESTRUCTION OF OR TO THE COMPUTER FILES, DATABASES, NETWORK, TRANSMISSION FACILITIES OR EQUIPMENT OWNED OR CONTROLLED BY THE OTHER PARTY OR SUCH OTHER PARTY'S CLIENTS OR END USERS; (B) THE CONTENT, ACCURACY OR QUALITY OF THE DATA TRANSMITTED THROUGH THE USE OF THE SERVICES PROVIDED HEREUNDER. Notwithstanding the foregoing, this section shall not limit either party's liability to the other for: (i) willful or malicious conduct; (ii) gross negligence; or (iii) indemnification.
6.3 Zone Data Files Disputes. You are solely responsible for the information contained in your Zone Data Files. NS8 specifically disclaims any responsibility or liability for the accuracy or content of your Zone Data Files, both as provided to NS8 by you and as your Zone Data Files relates to third parties. In the event that a dispute arises between you and a third party over the information in your Zone Data Files, including, but not limited to, the duplication of resource records contained therein, you assume complete responsibility for resolving such a dispute, and NS8 specifically disclaims any liability or responsibility in connection therewith. NS8 reserves the right to suspend performance or provision of the Services until you resolve such disputes. Any such suspension shall not relieve you of any obligations under this Agreement, including, without limitation, the obligation to pay applicable fees and charges.
7.1 Except as otherwise expressly provided herein, all notices and requests in connection with this Agreement shall be deemed given as of the day they are received when delivered either by messenger, overnight delivery service, or by the United States Postal Service if mailed with postage prepaid, certified or registered, return receipt requested, and addressed as follows:
if to you: to the address set forth as the Legal Notices Contact on the Service Order or alternatively, any billing address on file, if applicable.
if to NS8:
8. TERM AND TERMINATION
8.1 Term of the Agreement. This Agreement shall commence on the Effective Date and shall continue for the Initial Term unless and until terminated in accordance with the terms hereof ("Term").
8.2 Renewal. The Term shall automatically renew for one-year or one-month periods, according to the billing basis previous agreed upon, unless otherwise agreed to by the Parties.
8.3 Revision. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that NS8 may, upon thirty (30) day notice to you, as provided in the Service Order, change part of the services provided under this Agreement. You may terminate your use of the Services if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. Any such revision or change will be binding and effective upon notification of such revision or change and your continued use of the services.
8.4 Termination for Cause. In the event that either party materially defaults in the performance of any of its duties or obligations hereunder, and such material default is not substantially cured within thirty (30) days after written notice thereof, then the other party may terminate this Agreement immediately by giving the defaulting party written notice.
8.5 Termination without Cause. Either party hereto may, at its option, terminate this Agreement, without cause as follows: (i) NS8 may terminate pursuant to this section at any time by delivery of notice to you not less than ninety (90) days prior to the date on which such termination is to be effective; (ii) you may terminate pursuant to this section at any time immediately upon notice, provided however, that by terminating this Agreement, you will not be entitled to any refund.
8.6 Effect of Termination. Upon termination of this Agreement, you will immediately cease the use of the Services and pay NS8 all outstanding fees and charges.
8.7 Termination for Insolvency. Either party hereto may, at its option, and without notice, terminate this Agreement, effective immediately, should the other party hereto: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party's property or providing for the liquidation of such party's property or business affairs.
8.8 Survival. In the event of termination of this Agreement for any reason, Sections 2, 4, 6, and 8.6 shall survive. Neither party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.
9.1 Relationship of the Parties. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Additionally, neither party is the legal representative or agent of the other, nor shall either party have the right or authority to assume, create, or incur any liability or any obligation of any kind, expressed or implied, against, or in the name of or on behalf of the other party.
9.2 Governing Law. This Agreement will be interpreted and governed by the laws of the State of Nevada, without reference to conflict of laws principles and without regard to the 1980 U.N. Convention on the International Sales of Goods. Both NS8 and you consent to exclusive personal jurisdiction and venue in federal courts located in Clark County and in state courts sitting in Las Vegas, Nevada.
9.3 Assignment. Neither party shall assign or transfer its rights, duties or obligations under this Agreement without the prior approval of the other party, provided, however, that either party may assign its rights, duties and obligations hereunder, without obtaining such written approval, to an entity controlling, controlled by, or under the common control of that party, to an entity that purchases substantially all of the assets of the party relating to the performance of its obligations hereunder, or to an entity acquiring the party outright. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties. Any assignment in violation of this Section 9.3 shall be void.
9.4 Construction and Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable for whatever reason, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
9.5 Amendments. All amendments or modifications of this Agreement shall be binding upon the parties despite any lack of consideration so long as the same shall be in writing and executed by each of the parties hereto. Notwithstanding the foregoing, NS8 shall be entitled to amend any provision of this Agreement by providing notice to you if such amendment is applied to substantially all of the users of NS8 Services. It is expressly understood and agreed that no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner the express terms of this Agreement or any part hereof.
9.6 Entirety. This Agreement, complete with the NS8 Terms and Conditions and Service Order executed by both parties, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous communications, negotiations, commitments and understandings of the Parties. Except as specifically provided herein, this Agreement shall not be modified except by written agreement dated subsequent to the date of this Agreement and signed on behalf of NS8 and you by their respective duly authorized representatives.
9.7 Order of Precedence. In the event of a conflict between any Service Order and these NS8 Terms and Conditions, the terms of the Service Order shall govern.
9.8 Headings. The titles and heading of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
9.9 No Waiver. Any waiver of any term or condition of this Agreement must be in writing to be effective. The failure or neglect by either party to enforce any of the terms or conditions hereof shall not be construed to be a waiver of any party's rights under the Agreement, including the performance of any such term or condition.
9.10 No Third Party Beneficiaries. This Agreement does not provide and shall not be construed to provide third parties (i.e., non-parties to this Agreement) with any right, remedy, claim, and cause of action or privilege.
9.11 No Publicity. Neither party shall issue any news release or announcement concerning this Agreement, except as required by law, without the prior written consent of the other party.
9.12 Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section: (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section 9.12 extends for a period in excess of thirty (30) days in the aggregate, NS8 may immediately terminate this Agreement.
10.1 "Effective Date":
10.1.1 If you purchased NS8 from the NS8 website, or any third-party website where NS8 Services may be purchased, "Effective Date" shall mean the date specified in the NS8 e-mail confirming your Order.
10.1.2 If you purchased Services through invoice process, "Effective Date" shall mean the date specified in the Service Order.
10.2 "NS8 Service" is a Software as a Service based platform for fraud detection and risk scoring.
10.3 Initial Term" is month to month or annually, based on your selected billing preference, commencing the Effective Date, or such other period defined in Service Order.
10.4 "Monthly Timeframe" shall mean each single calendar month beginning and ending at 0000 Greenwich Mean Time ("GMT")
10.5 "User" shall mean those persons, who subscribe to the NS8 Service for purpose(s) of fraud assessment and risk scoring.
10.6 "NS8 Service Infrastructure" shall include, but not be limited to, the database, primary name servers, secondary name servers, distribution servers, application servers, application gateways, network devices, software, specifications, protocols, IP addresses, configurations, routing data and processes and any other tangible or intangible asset used by NS8 to perform the NS8 Services as described in the Service Order.