Nile Terms & Conditions
This Nile Terms and Conditions of Service (the “Agreement”) is entered into by and between you and Nile Global, Inc., a Delaware corporation with offices at San Jose, CA (“Nile”). For the purposes of this Agreement, “Customer” means the party identified as the customer in the applicable Order Form (as defined in the “Customer’s Subscription” section below). By executing or accepting an Order Form (as defined below) that references this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Order Forms, and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Service.
1.1. Service Description. Nile is the owner and provider of network connectivity services starting from connection of the wired or wireless Authorized Devices to Nile’s Equipment (both as defined below) to the connection point of Customer’s router (the “Service(s)”), including (a) a software-as-a service solution that is designed to allow customers to manage and maintain network connectivity at their place of business (“SaaS”), downloadable software that will assist Customer with accessing and using the SaaS (“Software”), and any equipment or other hardware provided by Nile to Customer for the purpose of Customer using the Service (“Equipment”). For the purposes of this Agreement, an “Authorized Device” is a device with an individual MAC address that is owned or controlled by Customer or a User of Customer and that is authenticated by an appropriate Third-Party Application or internal administrator.
1.2. Customer’s Subscription. Subject to the terms of this Agreement, Customer may purchase a subscription to, and has the right to access and use, the Service as specified in one or more ordering documents executed by the parties (or Customer and a Channel Partner) that reference this Agreement and describe the business terms related to Customer’s subscription (“Order Form(s)”). Nile also grants Customer (including Users) a limited, non-sublicensable, non-transferable right and license to access, download (as applicable), run (as applicable), and use, solely for Customer’s internal business purposes, the Software, the Equipment, and the technical documentation regarding the Service that Nile publishes to all its customers (“Documentation”). All subscriptions will be for the period described on the applicable Order Form (“Subscription Period”). Use of and access to the Service is permitted only by employees and contractors authorized by Customer on Authorized Devices for Customer’s own internal business purposes and not for the benefit of any third party (“Users”). Notwithstanding the foregoing, Customer may also permit (a) a certain number of guests authorized by Customer or its Users to use the Service onsite at Customer’s location, and (b) its affiliates and their employees and contractors working for the benefit of Customer or such affiliates to serve as Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement. An “affiliate” of a party is any entity controlling, controlled by or under common control with such party; where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. If permitted by Nile, Customer may access and use the Service for evaluation purposes prior to entering into an Order Form (“Trial”). Such evaluation period will be for the period specified by Nile (“Trial Period”).
1.3. Support, Maintenance, and Service Level Policy. Nile will make commercially reasonable efforts to provide basic technical support for the Services (“Support”) in accordance with its support policy, which is located at https://nilesecure.com/supportpolicy . Nile will also provide the SaaS in accordance with the service level policy, which is in the Nile Portal (“Service Level Policy”). From time to time, as part of Support, Nile may replace Equipment or apply upgrades, patches, bug fixes, or other maintenance to the Services. Customer will provide Nile with reasonable assistance in determining or resolving any problems with the Services, which includes but is not limited to providing Nile with safe, unobstructed access to the Equipment. Customer will also promptly implement all updates and upgrades to the Software or Equipment provided by Nile to Customer; Customer understands and agrees that Nile will not be able to comply with the Service Level Policy and may not be able to provide the Service if Customer fails to promptly implement such updates and upgrades. Nile agrees to use reasonable efforts to provide Customer with prior notice of any scheduled Support which would prevent access to the Services. As part of regular Support, Nile may need to access Authorized Devices to perform configurations, health checks, support, or diagnostics; during the performance of these tasks, Nile will generally only retrieve performance, log data, and other information related to the operation and management of the Services; it is Customer’s responsibility to ensure that any data transmitted to the Services is encrypted prior to it reaching the Services.
1.4. Equipment. Subject to the terms of this Agreement and only for the Subscription Period, Nile will provide Customer with certain Equipment and will allow Customer to use such Equipment solely as part of Customer’s use of the Service. Once provided by Nile, Equipment will be physically located at Customer’s premises; as such Customer is solely responsible for the physical security and access controls of the Equipment, as well as all power, internet access, and environmental conditions of the Equipment. Customer is responsible for all damage to the Equipment while on Customer’s premises unless such damage is caused solely and directly by Nile. If Customer causes the Equipment to become inoperable, Customer agrees to pay to replace such Equipment and for the installation of such Equipment. Terms regarding the return of Equipment upon termination or expiration of this Agreement are stated in the Equipment Return Policy, which is located at https://nilesecure.com/equipmentpolicy . Customer acknowledges that the Equipment may come with tamper monitoring protections and Customer is not permitted to disable such protections.
1.5. Use Restrictions.
1.5.1. General Responsibilities. Customer is responsible for all activity on the Service by Users unless such activity is caused by a third-party bad actor able to access Customer’s account by exploiting vulnerabilities in the Software or SaaS itself. Customer may use the Services solely at the premises stated in the applicable Order Form. Customer will ensure that its Users are aware of and bound by all obligations and/or restrictions stated in this Agreement; Customer will be responsible for breach of any such obligation and/or restriction by a User. Customer also agrees that it will not and will not allow Users to: (a) use or access the Services to build or support and/or assist a third party in building or supporting products or services competitive to the Services; (b) attempt to probe, scan, or test the vulnerability of the Service or any Nile system or networks; (c) use the Services in violation of any instructions, requirements, specifications, guidelines, or other documentation that Nile makes available to Customer; (d) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas agreed to by the parties; (e) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Users; (f) remove or obscure any copyright, trademark or other proprietary notices, legends or Nile branding contained in or on the Services; or (g) use the Services to send abusive, phishing emails or bulk (i.e. spam) emails such as mass marketing emails or unsolicited and unwanted emails. Moreover, Customer will and ensure that its Users will use the Services in compliance with all applicable federal, state, local or international law or regulation, including but not limited to the Children’s Online Privacy Protection Act and other applicable privacy or data protection laws, rules, and regulations. Customer understands and agrees that Nile does not provide legal advice; Customer is solely responsible for making its own assessment of whether Customer’s use of the Service meets all applicable legal and regulatory requirements.
1.5.2. SaaS and Software Limitations. Customer also agrees that it will not, and will not allow Users or third parties to, directly or indirectly: (a) modify, translate, copy or create derivative works based on the SaaS or Software; (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the SaaS or Software except as and only to the extent this restriction is prohibited by law; or (c) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the SaaS or Software, including, without limitation, by introducing viruses and other harmful code or by using flood pings, denial-of-service attacks, or similar methods or technology.
1.5.3. Equipment Limitations. Customer also agrees that it will not, and will not allow Users or third parties to, directly or indirectly: (a) allow any lien, any security interest to be created in any Equipment or any encumbrance on such Equipment; (b) scan, x-ray, open, modify, alter, disassemble, or otherwise attempt to view the inside of or tamper with the Equipment; (c) alter, repair, modify, tamper with, or interfere with the Equipment, circumvent or disable any features or measures in the Equipment; or (d) move the Equipment or disconnect it from its power source or the internet without Nile’s prior written consent.
1.5.4. High-Risk Use. Customer is not granted any right to use the Services in any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High-Risk Use”). High Risk Use does not include utilization of the Service for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. NILE, ITS SUPPLIERS, AND LICENSORS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK USE. CUSTOMER IS SOLELY RESPONSIBLE FOR LIABILITY THAT MAY ARISE IN CONNECTION WITH ANY HIGH-RISK USE.
1.5.5. Emergency Services Calls. You agree that the Service does not offer or purport to offer any Emergency Services. “Emergency Services” means services that allow an End User to connect with emergency services personnel or public safety answering points, such as 911 or E911 services. You understand that the Service may not determine the physical location of Your devices or Your End Users, which may be required when contacting Emergency Services. You understand and agree that it is Your responsibility to: (i) contact and access Emergency Services independently of the Service and (ii) You agree to inform all End Users of these limitations. You understand that the Service cannot be used to make calls if the End User experiences a power outage, cannot access the Internet, or their device has no power. You agree that the Service Is not a replacement for traditional telephone or mobile phone services, including but not limited to calling, texting, or contacting Emergency Services, and does not function as such. Neither Nile nor its suppliers or licensors are liable for any damages resulting from any Emergency Services call or any inability to place or complete an Emergency Services call using the Service. You agree to indemnify and hold Us harmless for any claims related to Your or Your End Users’ referring or relating to any Emergency Services call or any inability to place or complete an Emergency Services call using the Service, including related to the use of any arrangements with third parties.
1.5.6. Remedies. If Customer (including Users) is using the Services in a manner that, in Nile’s reasonable judgment, causes or is likely to cause significant harm to Nile or the Services or otherwise threatens the security, integrity or availability of the Services then Nile may suspend Customer’s access to the Services. Nile will use commercially reasonable efforts under the circumstances of such suspension to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) limit the suspension to only accounts involved in the activities in question; and (z) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
2. Third-Party Applications. The Services may work together with third party products, services or applications that are not owned or controlled by Nile, (e.g., Customer’s Radius service) (“Third-Party Applications”). Customer, at its sole option, may choose to use such Third-Party Applications. Nile does not endorse any Third-Party Applications. Customer acknowledges and agrees that this Agreement does not apply to Customer’s use of Third-Party Applications Nile EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES RELATING TO ANY THIRD-PARTY APPLICATIONS. CUSTOMER WILL LOOK SOLELY TO THE PROVIDERS OF THE THIRD-PARTY APPLICATIONS FOR ANY WARRANTY RELATED ISSUES OR OTHER CLAIMS RELATED THERETO. CUSTOMER’S USE OF THIRD-PARTY APPLICATIONS IS AT CUSTOMER’S OWN RISK. NILE WILL HAVE NO LIABILITY OR OTHER OBLIGATION OF ANY KIND ARISING OUT OF OR RELATED TO ANY THIRD-PARTY APPLICATIONS.
3. Intellectual Property Rights and Data.
Nile’s Ownership. Nile owns the Services (including the SaaS, Software, and Equipment) and the Documentation (collectively the “Nile Materials”). Nile retains all right, title, and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Nile Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by Nile.
4. User Information. Customer and its Users are required to provide information such as IP address, username, password, and any personally identifiable information including, without limitation, name, phone number, or email address (“User Information”) upon logging into the Service to access the Service. Customer grants Nile and its subcontractors the right to store, process and retrieve the User Information in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained all necessary rights to transfer User Information to Nile and to process the User Information as contemplated by this Agreement. Customer is responsible for all User Information. Accordingly, Customer is responsible for all resulting liability if usernames, passwords, tokens, or keys in Customer’s possession are used by any party not authorized to do so. Customer (on behalf of its Users) grants Nile the right to access, use, process, copy, distribute (to Users), perform (for Users), export (to Users) and display (for Users) User Information, only as reasonably necessary (a) to provide the Service to Customer (including the transfer of User Information to Nile); (b) to prevent or address service, security, support, or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
5. Customer Data. Customer is solely responsible for taking appropriate action to secure, protect and backup Customer Data in a manner that will provide appropriate security and protection, which might include use of encryption to protect Customer Data from unauthorized access and routinely archiving Customer Data. For the purposes of this Agreement, “Customer Data” means software (including machine images), data, text, audio, video, images, or any other materials provided by Customer through or to the Service. To the extent that Customer Data is shared with Nile, Customer grants Nile and its licensors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process and display such Customer Data for the sole purpose of providing the Service to Customer. Customer is also solely responsible for ensuring that all information Customer provides to Nile is accurate, complete, complies with all applicable laws, and not misleading. Moreover, Customer will not use the Service to transmit Customer Data that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. Except for the limited rights and licenses granted in this Agreement, Customer will own all right, title, and interest in and to the Customer Data and there are no implied licenses under this Agreement.
6. Service Data. As Customer (including its Users) interacts with the Service the Service collects data pertaining to the performance of the Service and measures of the operation of the Service (“Service Data”). Notwithstanding anything else to the contrary herein, provided that the Service Data is aggregated and anonymized, and no User Information, Customer Data, or any other personal identifying information of Customer is revealed to any third party, the parties agree that Nile is free to use the Service Data in any manner. Nile owns all right, title, and interest in and to such Service Data. For clarity, this section does not give Nile the right to identify Customer (including its Users) as the source of any Service Data.
7. Payment Obligations.
7.1 Fees. Customer will pay for access to and use of the Services as stated on the applicable End User Order Form (“Fees”). Customer pays Nile Service fees to Channel Partner set forth in End User Order Form if Customer entered an agreement with Channel Partner for Nile Service. All Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Nile may modify its Fees or introduce new fees in its sole discretion; however, any new or revised Fees will not become effective unless Nile provides written notice of such new or revised Fees to Customer at least thirty (30) days prior to the end of the applicable Subscription Period (“Renewal Period”). Customer has the right to choose not to renew its subscription within the renewal notice period if it does not agree with any new or revised Fees.
Nile will invoice Customer for the Fees and any other applicable fees charged by third parties on Customer’s payment (e.g., bank transfer fees charged by Customer’s bank or other payment instrument) in accordance with the Order Form. Customer agrees to pay all invoices submitted in accordance with this Agreement within thirty (30) days after receipt of Nile’s invoice. All information that Customer provides in connection with a purchase or transaction or other monetary transaction with the Service must be accurate, complete, and current. All Fees will be paid without setoff or counterclaim. If Customer has executed an Order Form with a Channel Partner, Customer will pay such Channel Partner (and not Nile) in accordance with the terms of such Order Form. Customer understands and agrees that if Customer does not pay the Channel Partner in accordance with the applicable Order Form, Nile will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer. For the purposes of this Agreement, a “Channel Partner” means a resale partner that is authorized by Nile to resell the Service.
7.2 Taxes. Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Nile’s net income. Customer will provide such information to Nile as reasonably required to determine whether Nile is obligated to collect Taxes from Customer. Nile will not collect any Tax for which Customer provides a properly completed exemption certificate or a direct payment permit certificate. All payments made by Customer to Nile under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Nile is equal to the amount then due and payable under this Agreement.
7.3 Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this “Payment Obligations” section, Nile may, provided that Nile gives Customer written notice of such non-payment and ten (10) days from the date of such notice to remit the overdue, undisputed amounts in full: (a) suspend Customer’s access to the Service pending payment of such overdue invoices; and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes that Nile has billed Customer incorrectly, Customer must contact Nile no later than thirty (30) days after the invoice date to receive an adjustment or credit. Once Nile receives notice of a disputed invoice, Nile will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If Nile reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within ten (10) days of Nile notifying Customer in writing of such decision.
7.4 True-Ups. If at any time during the applicable Subscription Period, Customer increases its use above the number of Users paid-for under the End User Order Form, then on a quarterly basis, Customer will pay an additional amount calculated based on the applicable pricing corresponding to Customer’s increased use (the “Quarterly True-Up”), pro-rated for the period following the date customer begins using Nile Services in excess of the contracted-for amount. There is no downward adjustment for decreases that may occur during the Subscription Period.
8. Term and Termination.
8.1 Agreement Term and Renewals. Subscriptions to access and use the Service commence on the start date stated on the applicable Order Form (“Subscription Start Date”) and continue for the duration of the Subscription Period. This Agreement will become effective on the Subscription Start Date of the first Order Form entered into by the parties and remain effective for the Subscription Period stated on such Order Form, any Subscription Periods of any Order Forms entered into thereafter, and any Renewal Periods.
8.2. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if (a) the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, or (b) the other party has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of such party’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
8.3. Effect of Termination. If Customer terminates this Agreement because of Nile’s uncured breach, Nile will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period. If Nile terminates this Agreement because of Customer’s uncured breach, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination, if any. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Nile for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights and licenses granted by Nile hereunder will immediately terminate; Customer will no longer have the right to access or use the Service. Within 30 days of any termination or expiration, Nile will delete Customer’s User Information, including passwords and all related information, files, and Customer Data, unless Customer requests an earlier deletion in writing.
8.4. Survival. Sections titled “Nile’s Ownership”, “Third-Party Applications”, “Payment Obligations”, “Term and Termination”, “Warranty Disclaimer”, “Limitation of Liability”, “Indemnification”, “Confidentiality”, “Data” and “General Terms” will survive any termination or expiration of this Agreement.
9. Warranties and Disclaimers.
9.1. Nile Warranties. Nile represents and warrants that (a) it will comply with all applicable federal, state and local laws, rules, regulations, and ordinances of the United States with respect to its business operations under this Agreement, including those appliable to its processing and use of User Information and Customer Data; (b) the Service will substantially comply in all material respects with the Documentation, (c) it will provide the Support Services in a professional and workmanlike manner, (d) it has used commercially reasonable efforts to ensure that the Software and SaaS and the environment used for the SaaS contain no Malicious Code, and (e) it uses commercially reasonable efforts to prevent the introduction of Malicious Code into the Software and SaaS and the environment used for the SaaS. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data in a manner not intended by the computer, system or network, or in some other fashion disrupt the normal operation of a computer, system or network. If the Services are not provided in accordance with the above warranty, Customer will promptly notify Nile and Nile will make commercially reasonable efforts to rectify such non-compliance; if Nile is not able to so modify or otherwise fix the Services, Nile will terminate this Agreement and refund any unused pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and Nile’s sole liability if Nile breaches the terms of subsection (b) and (c) above.
9.2. Customer’s Warranties. Customer represents and warrants that (a) it has all necessary rights in Customer Data and User Information to grant all applicable rights and licenses under this Agreement; and (b) it will at all times comply with all applicable laws, rules, regulations, ordinances and other legal obligations with respect to its use of the Services; Customer also agrees that Nile is not the “sender” of any messages or otherwise as defined in the CAN-SPAM Act or similar applicable law of any email transmitted through the Services.
9.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND NILE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT NILE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S OBLIGATIONS UNDER OR BREACH OF THE SECTION TITLED “USE RESTRICTIONS AND RESPONSIBILITIES”, OR (II) NILE’S OBLIGATIONS UNDER THE SECTION TITLED “INDEMNIFICATION”, (III) EITHER PARTY’S BREACH OF THE SECTION TITLED “CONFIDENTIALITY”, (III) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.1. Nile’s Indemnification. Nile will defend Customer and its Users, officers, directors, and employees against any third-party claim or action brought against Customer to the extent based on the allegation that the Service infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) and Nile agrees to pay any settlements with respect to the foregoing indemnification obligations that Nile agrees to in a writing signed by Nile’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of the Services that are (a) not provided by Nile, (b) combined with other products (including Customer’s services), processes or materials that are not reasonably contemplated by Nile or the Documentation, or (c) where Customer’s use of the Service is not in accordance with this Agreement or the Documentation.
11.2. Procedures. Nile’s obligations under the “Nile’s Indemnification” section are conditioned on Customer (a) providing Nile with prompt written notice of any claim (provided that the Customer’s failure to provide reasonable written notice shall only relieve the Nile of its indemnification obligations hereunder to the extent such failure materially limits or prejudices Nile’s ability to defend or settle such claim), (b) granting Nile the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Nile in the defense or settlement of the claim at Nile’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of Nile to defend, indemnify and hold Customer harmless hereunder is limited to Nile’s payment for the cost of defense of the third-party claim incurred by Nile and the payment of (i) any settlements agreed to by Nile in a writing signed by an officer of Nile, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction.
11.3. Options. If Customer’s use of the Service has become, or in Nile’s opinion is likely to become, the subject of any claim of infringement, Nile may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing (but containing substantially equivalent functionality), (c) substitute an equivalent for the Service or (d) if Nile, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
11.4. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS “Indemnification” SECTION STATES NILE’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
12.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Nile’s Confidential Information includes non-public information regarding features, functionality, and performance of the Service. Customer’s Confidential Information includes the User Information and Customer Data. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
12.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, sub processors, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, make all commercially reasonable efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing the terms of this Agreement or the name of the other party with prospective investors or acquirors; provided, however, that the foregoing persons or entities are bound to standard confidentiality obligations.
12.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
12.4. Feedback. Customer may from time to time provide suggestions, comments, or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Nile specifically regarding the Service and will not include User Information or Customer Data. Nile may want to incorporate Feedback into its Service and this clause provides Nile with the necessary license to do so. Customer hereby grants to Nile and Nile’s assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license, if any, to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback as Nile sees fit, entirely without obligation or restriction of any kind, except that Nile will not identify Customer as the provider of such Feedback.
13. Subcontracting. Nile may use subcontractors to provide the Services or professional services under this Agreement.
14. General Terms.
14.1. Publicity. Customer agrees that Nile may use Customer name, logo and trademarks subject to compliance with Customer’s published trademark guidelines as part of Nile marketing efforts. Customer agrees that Nile may reference Customer as Nile’s customer. Customer will consider participating in a case study, webinar, and other joint marketing activities six to nine months post deployment. Customer further agrees that Nile or Nile’s subcontractors will be permitted to take photos and videos of the components of the Service and grants Nile all rights necessary for Nile to take and use such photos or videos for any purpose related to Nile’s business.
14.2. Force Majeure. Neither Nile nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party that make it impossible or commercially impracticable for such party to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the party failing to perform), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
14.3. Changes. Customer acknowledges that the Service is an on-line, subscription-based product, and that to provide improved customer experience Nile may make changes to the Service provided, however Nile will not materially decrease the core functionality of the Service.
14.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
14.6. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, although Nile may instead choose to provide notice to Customer through the Service, (b) notices to Nile must be sent to [email protected], and (c) all notices to Customer will be sent to the email(s) provided through the Service. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Service.
14.7. Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed or accepted by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
14.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
14.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Nile may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all Nile’s assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
14.11. Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order(s), vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
14.12. Counterparts and Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. This Agreement may be signed by electronic signature and electronic transmission, including via DocuSign or other similar method.
14.13. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Nile and Customer each represent that it is not named on any denied-party list of the United States or other countries. Customer will not and will not permit any User to (a) access or use the Services in any embargoed country or region, (b) access or use the Services in violation of any export law or regulation, (c) submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations, or (d) use or transfer the Services in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses. Customer will be fully liable for any fines or penalties arising out of Customer’s breach of the foregoing.