Flow Down Terms
1. Provision of Products.
(a) Nisos products may be provided (“ Nisos Products ”) to certain individuals or entities who procure such Nisos Products directly through Nisos Holdings Inc. (“Nisos ”) or an authorized reseller (“Reseller”) as documented through an order form setting forth the specific details related to the purchase of Nisos Products (“Order Form”). The terms “You”, “Your”, ““Client” or ”Customer” shall refer to any individual or entity who uses Nisos Products, accepts this Agreement or uses the Nisos Products. Your use of Nisos Products, the time period for which they are provided (the “Term”), price, payment terms, and certain other terms and conditions in addition to those set forth herein (collectively, the “Terms” or “Agreement”).
(b) Subject to the terms of this Agreement and Nisos’ receipt of full payment, Nisos grants You a limited, nonexclusive, non-transferable, non-sublicensable license to access, and use the Nisos Products for Your own security and personal purposes.
(c) You are responsible for: (i) providing timely, accurate and complete information to enable Nisos to deliver Nisos Products (ii) obtaining all required rights and authorizations for Nisos to process the Client Materials (as defined below), and (iii) all activity occurring under Your user accounts for the Nisos Products including the proper use thereof, and You shall promptly notify Nisos if You have knowledge of any unauthorized use of Nisos Products.
(d) If you purchase Nisos Products through an authorized reseller, these Terms will govern but Your payment obligations will be with the authorized reseller, not Nisos. Any terms or conditions agreed to between You and the authorized reseller that are in addition to these Terms and Conditions are solely between you and the authorized reseller. Resellers are not authorized to make any modifications or changes to these Terms or bind Nisos to any additional or different terms or conditions.
2. Rights and Ownership.
(a) Client Materials. You acknowledge that in order to provide Nisos Products, Nisos may require access to certain content or other information, or material from You related to You, Your family members who have provided You with explicit consent to obtain Nisos Products on their behalf, and minors for whom You are a legal guardian or parent (“Client Materials”) which may be delivered to Nisos by You or through a Reseller. Accordingly, You hereby grant to Nisos a non-exclusive, non-transferable license to use the Client Materials as necessary for Nisos to provide Nisos Products to You during the Term. Nisos shall have no obligation to retain Client Materials beyond forty-five (45) days after submission of the final Deliverable (as defined below).
(b) Ownership. You own all right, title, and interest in the Client Materials. Nisos or its licensors, as applicable, own all right, title, and interest in the Nisos Products, third party software and data, and proprietary information and tradecraft used to perform or provide the Nisos Products.
(a) Confidentiality. Nisos shall employ reasonable measures to ensure that non-public, confidential or proprietary information it receives from You (“Confidential Information”) is not used, disclosed, sold, licensed, distributed, or otherwise made available to third parties except in the performance of, or as authorized by, this Agreement. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision, (ii) information previously known by or developed by Nisos independent of and without reference to the Confidential Information, or (iii) information that Nisos rightfully obtains without restrictions on use and disclosure. Nisos may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, provided it uses reasonable efforts to give the disclosing party prompt notice of any such legal or governmental demand and cooperate with the disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing party’s expense.
(b) Deletion of Confidential Data. Upon Your written request subject Section 8(b) herein, Nisos shall use reasonable measures to delete Confidential Information in Nisos’ possession related to Nisos Products provided to You, subject to Nisos’ data retention policies. Any retained Confidential Information will be kept in accordance with this Agreement.
(c) Data Privacy. To the extent that Nisos collects, processes, stores, transmits or receives personal data from You, Nisos shall comply with applicable data protection laws. In addition to and without derogating from the generality of the foregoing, to the extent that personal data under the terms of this Agreement is subject to the EU General Data Protection Regulation or the retained version of the GDPR applicable in the UK, Nisos will comply with its respective obligations under the Data Processing Addendum (available at https://www.nisos.com/nisos services-data-processing-addendum/) which is incorporated herein by reference. You acknowledge and agree that (a) this Data Processing Addendum is hereby incorporated into, and forms a part of the Agreement, (b) this Data Processing Addendum is deemed to have entered into full force and effect as of the date set forth on the Order Form between You and Nisos, or Reseller, as applicable.
4. Limited Warranty.
(a) Limited Warranty. Nisos warrants that the Nisos Products (i) will conform to their descriptions in the Order Form, and (ii) will be performed in a professional manner consistent with industry standards. Nisos is not responsible for identifying all data related to You when providing Nisos Products to You and makes no claims as to how successful it will be in achieving certain results when providing Nisos Products Nisos shall, as its sole obligation and Your sole and exclusive remedy for any material breach of the warranty set forth in this Section 4(a), re-perform the Nisos Products which gave rise to the material breach or, at Nisos’ sole discretion, refund the fees paid by You to Reseller for the Nisos Products which gave rise to the breach; provided that You shall notify Reseller, or Nisos if authorized by Reseller in advance, in writing of the breach within thirty (30) days following performance of the defective Nisos Products, specifying your claims related to the breach in reasonable detail, in compliance with Section 8(b) herein. NISOS MAKES NO OTHER WARRANTY TO YOU OR ANY OTHER PARTY, AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE NISOS SERVICES, ANY OTHER SERVICES, OR ANY THIRD PARTY SOFTWARE INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, OF QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ABSENCE OF HIDDEN DEFECTS, AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF PERFORMANCE, BY REASON OF USAGE OR TRADE OR COURSE OF DEALING.
(b) Remedy. You shall promptly notify Nisos in writing of any breach of the foregoing warranties. As Your sole remedy and Nisos’ sole obligation for any breach of the warranties provided herein, Nisos shall, at its option and expense and in its sole determination, (i) use good faith efforts to attempt to correct any such non-conformity; or (ii) terminate this Agreement and promptly refund You the portion of any prepaid fees covering the Nisos Products for the remainder of the Term after the effective date of the termination.
(a) Indemnification by Nisos. Nisos shall defend You against any claim, demand, assessment, action, suit, or proceeding brought by a third party (“Claim”) against You alleging that the Nisos Products infringe the intellectual property rights of a third party, and shall indemnify You for any damages, reasonable attorneys’ fees, and costs (“Losses”) finally awarded against You as a result of, and for amounts paid by You under a settlement of, such a Claim.
In the event of such a Claim, or if Nisos reasonably believes the Nisos Products may be vulnerable to an infringement claim, Nisos may, in its discretion and at no cost to You (i) replace or modify the Nisos Products so that they are no longer claimed to infringe, (ii) procure the right for Your continued use of the Nisos Products in accordance with this Agreement, or (iii) terminate this Agreement upon 30 days’ written notice and refund to You any prepaid fees covering the Nisos Products for the remainder of the Term after the effective date of termination. Nisos shall not defend or indemnify You to the extent such Losses or Claim(s) arise from (i) Your non-compliance with the terms of this Agreement or any use of Nisos Products not intended by Nisos or (ii) Nisos’ compliance with Your specifications, instructions, or requirements.
(b) Indemnification by You. You shall defend Nisos and its employees, officers and directors (“Indemnitees”) against any Claim (i) alleging that the Nisos Products infringe() the intellectual property rights of a third party, (ii) alleging that Nisos lacks the proper rights or authorizations to process Your data in connection with the delivery of the Nisos Products to You (but not in connection with any other purpose), and/or (iii) regarding a security event involving Your systems or Reseller’s systems, and You shall indemnify the Indemnitees for any Losses finally awarded against them as a result of, and for amounts paid by them under a commercially reasonable settlement of, such a Claim.
(c) Procedure. The party seeking defense and indemnity hereunder shall (i) give the indemnifying party prompt written notice of such Claim; (ii) permit the indemnifying party to solely control and direct the defense or settlement of the Claim, provided the indemnifying party will not settle any Claim in a manner that requires the indemnified party to admit liability without the indemnified party’s prior written consent; and (c) provide all reasonable assistance in connection with the defense or settlement of such Claim, at the indemnifying party’s cost and expense. The indemnified party may, at its own expense, participate in defense of any Claim.
(d) Testimony. In the event that Nisos or any Indemnitees are required to testify in any judicial, administrative or legislative proceeding involving You with respect to the Nisos Products, You shall reimburse Nisos for its reasonable costs, expenses, and time incurred in that regard, unless the proceeding results from Nisos’ intentional misconduct or breach of this Agreement.
6. Limitation of Liability.
IN NO EVENT SHALL NISOS OR ITS RESELLERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, LOSS OR INTERRUPTION OF BUSINESS OPERATIONS, LOST PROFITS, OR DATA LOSS ARISING OUT OF THIS AGREEMENT OR PROVISION OF THE NISOS PRODUCTS OR THIRD PARTY SOFTWARE. THE TOTAL AGGREGATE LIABILITY OF NISOS AND ITS RESELLERS, LICENSORS, AND SUPPLIERS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM, FOR THE PARTICULAR ORDER FORM UPON WHICH THE CLAIM IS BASED. NISOS AND ITS RESELLERS, LICENSORS, AND SUPPLIERS ARE NOT RESPONSIBLE FOR ANY UNAUTHORIZED DESTRUCTION, LOSS, ALTERATION, DISCLOSURE OF, OR ACCESS TO DATA WHICH IS NOT IN THE POSSESSION AND CONTROL OF NISOS, OR WAS OTHERWISE PROVIDED BY OR DISTRIBUTED BY NISOS. THE FOREGOING PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND ANY MODIFICATION OF SUCH PROVISIONS WOULD SUBSTANTIALLY AFFECT THE FEES CHARGED.
(a) Termination. This Agreement (or any Order Form) shall, with respect to Nisos Products, terminate upon completion of delivery of the Nisos Products and may be terminated at any time by either party upon written notice if the other party materially breaches this Agreement and such breach remains uncorrected for thirty (30) days following written notice of the breach from the other party.
(a) Entire Agreement. This Agreement shall be the entire agreement between the parties and supersedes all prior or present proposals, representations, or agreements, written or oral, concerning its subject matter prior to its execution.
(b) Notices. All notices under this Agreement must be in writing and delivered by hand or sent by registered mail or nationally-recognized next-day courier service addressed to the party at its address indicated on the Order Form or applicable purchasing document, and if to Nisos, addressed as follows: Nisos Holdings Inc., Attn: General Counsel, 2101 Wilson Blvd., Suite 304, Arlington VA 22201.
(c) Waiver; Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable the remaining provisions of 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. The headings of this Agreement are for convenience only. In case of any difficulty in the interpretation of one or more of the headings, the headings shall have no meaning and no effect.
(d) Independent Contractor. Nisos is an independent contractor, this Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary relationship or other obligations between the parties.
(e) Survival. Sections 2(b), 3, 5, and 6 shall survive termination of this Agreement.
(f) Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without regard to the application of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The exclusive venue for any dispute relating to or arising out of this Agreement, including without limitation its construction, effect, the performance, breach, rescission or termination, shall be in the federal or state courts for Arlington, Virginia and the parties consent to personal jurisdiction in such courts.
(g) Force Majeure. Except with respect to defense, indemnity, or monetary obligations, neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to acts of God, changes in governmental laws, rules, taxes, regulations or orders, war, terrorist acts, insurrection, riot, embargoes, supplier stoppages or delays, pandemic, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials.
(h) Fees, Taxes. You will pay the fees and expenses for the Nisos Products as set forth in the Order Form, as applicable, including any sales tax that may be required in the jurisdiction in which you reside, or procure Nisos Products. Failure to timely pay any undisputed invoice under this Agreement shall constitute a material breach of this Agreement by You.
(i) Export Controls and Sanctions. You attest that You are not on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, or in a country subject to a United States embargo. You further agree that You shall not permit any third party to access or use the Nisos Products in violation of any export or import law or regulation, or export the Nisos Products except in compliance with all applicable laws and regulations.