NUBIS hosting terms of service

Last Updated: June 2012

These Terms of Service are an agreement between Nubis, LLC (or, if applicable based on where Customer lives, one of its Affiliates) and Customer (the “Agreement”). This Agreement consists of the below terms and conditions, the SLA’s applicable to the Service, and the pricing and payment terms made available relating to the Service. The Service also may contain other posted notices or codes of conduct, which are incorporated by reference into this Agreement.

Please read this Agreement carefully. By subscribing to and/or using any of the Service, CUSTOMER AGREES to be bound by this Agreement, including any modifications made to it from time to time. If CUSTOMER DOES not agree to the terms and conditions in this Agreement, It may not subscribe to or use the Service.

1. DEFINITIONS

"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity. If Customer is an agency of a state, provincial, or local government, "Affiliate" means (1) any government agency, department, office, instrumentality, division, unit or other entity, of Customer’s state, provincial or local government that is supervised by, or is part of, Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer; (2) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer’s state or province and located within Customer’s state’s or province’s jurisdiction and geographic boundaries; and (3) any other entity in Customer’s state or province expressly authorized by the laws of Customer’s state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates. Notwithstanding the forgoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If Customer is an agency of the U.S. government, "Affiliate" means any other agency of the U.S. government. If Customer is an agency of the Canadian government, "Affiliate" means any other agency of the Canadian government, except for a federal Crown corporation.

“Client Software” means any software provided to Customer related to the Service.

“Customer” means the entity that has entered into this Agreement. If an individual enters this Agreement on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind such entity to this Agreement.

"License" means the rights granted by Nubis to Customer to copy, install, use, access, display, run and/or otherwise interact with the Service and/or Client Software for, as applicable, for Customer’s internal business purposes.

“Nubis” means Nubis LLC or its Affiliates.

"Order" means an order for Services. An Order may include multiple Subscriptions to Services.

“Service” means all Nubis Online hosting services (including pre-release services) and software, including any updates, upgrades, support, and content (e.g., audio and visual information, documents) contained or made available to Customer by Nubis in the course of using the service. Nubis may change the Service at any time and for any reason without notice.

"SLAs" means service level agreements representing commitments Nubis makes with regard the Services. SLAs can be found in Appendix A of this document.

"Subscription" means the part of the Order identifying the specific Services being ordered and may include the User quantity, ship-to address, or other information.

"Term" means the duration of a Subscription.

“Users” means individuals with Customer’s organization who have the right to use the Services, as dictated by the number of User Licenses purchased by Customer.

“User licenses” refers to the named licenses that Customer has purchased under its Subscription for Services.

2. license grant – what customer is licensed to use

2.1 General. Nubis grants Customer a License to the Services ordered by Customer, subject to Customer’s obligation to pay and any rights and limitations described in this Agreement. This License is non-exclusive, non-perpetual, and is not transferable. The ability to use Services may be affected by minimum system requirements or other factors. Nubis reserves all rights not expressly granted.

2.2 Client Software. Customer may need to install Client Software to access and use the Service. Customer may make copies of the Client Software solely to support the Service for its Users. Copies must be true and complete copies (including copyright and trademark notices) and be made from a Nubis approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use the Client Software aware that it is licensed from Nubis and subject to the terms of this Agreement. Additional rights and restrictions for the Client Software may accompany the provision of such Client Software, and Customer agrees to abide by all such additional rights and restrictions.

2.3 Authorized Users. Only those individuals who Customer designates as authorized Users may use and access the Service. Only Users who have administrator privileges may add additional authorized Users to the Service up to and including the total number of User Licenses purchased during the Subscription period. User Licenses cannot be shared or used by more than one individual authorized User and cannot be reassigned to a new User to replace a current authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Service. However, a User who has administrator privileges may delete an authorized User from the Service and add a new authorized User to the Service to replace the former authorized User.

2.4 External Users. Customer does not need to purchase additional Users accounts for external users who access the Service without using any of the software. “External users” means users that are not Customer, or its employees, Affiliates, contractors or agents.

2.5 Limitations on use. Customer shall not reverse engineer, decompile or disassemble the Service or Client Software, except where applicable law permits it despite this limitation. Customer shall not rent, lease, lend, resell, or host to or for third parties any Service or Client Software.

2.6 Font Components. While using the Service, Customer may use its fonts to display and print content. Customer may only: (i) embed fonts in content as permitted by the embedding restrictions in the fonts; and (ii) temporarily download them to a printer or other output device to print content.

3. ordering, pricing, payments, renewals and taxes

3.1 Ordering. Customer shall place an Order for each Subscription for a Service via any means made available by Nubis for such Ordering. If Customer desires to use the Service for more than the total number of User Licenses available through the Service level it subscribed to, it must subscribe to the appropriate Service level prior to commencing any such use. If Customer desires to reduce the total number of Users, it may do so, subject to the cancellation fees set forth in Section 4.2. Any Services added to a Subscription will expire at the end of the Term. Each Subscription shall be for a defined Term (e.g., 30 days or 12 months). Customer may place Orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Services. Affiliates may not place Orders under this Agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this Agreement. Customer agrees that it is jointly and severally liable for any Services purchased for or other actions taken by any of its Affiliates or any third party to which it provides rights under this Agreement.

3.2 Subscription Fees. “Subscription Fee” means the monthly amount Customer is required to pay for the Subscription to the Service and Client Software. Customer may be required to pay the Subscription Fee in advance, in arrears or both. Nubis may charge Customer at one time for more than one billing period. Subscription Fees are available via the Order or other means made available by Nubis. Payments are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices for each price level are fixed at the time the Subscription is first placed and apply throughout the Term. Subscription Fees are subject to change at the beginning of any Subscription renewal. Subscription to the Service may be suspended without notice if payment for the service is overdue.

3.3 Renewal. Unless the offer specifically states otherwise, Customer’s Subscription will automatically renew at the expiration of the Term.

3.4 New agreement. Prior to placing new Orders, renewing any Subscriptions, or further use of the Services, and upon notice, Nubis may require that Customer enter into an updated agreement to govern Orders, renewal Subscriptions, or usage from that date forward.

3.5 Taxes and other Incidental Charges. The prices and rate plans do not include any taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. Customer is responsible for all such incidental charges and any taxes and it is legally obligated to pay including, but not limited to, paying Nubis any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by Nubis under applicable law. If any taxes are required by law to be withheld on payments made by Customer to Nubis, Customer may deduct such taxes from the amount owed Nubis and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to Nubis an official receipt for any such taxes withheld or other documents necessary to enable Nubis to claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.

3.6 Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.

3.7 Late Payments. Except to the extent prohibited by law, Nubis may assess a late charge if Customer does not pay on time, regardless of any disputes Customer may have raised about its bill. Customer must pay these late charges as and when billed by Nubis. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. Nubis may use a third party to collect past due amounts. Customer must pay for all reasonable costs incurred by Nubis to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs. Nubis may suspend or cancel the Service if Customer does not pay in full and on time.

4. term and termination

4.1 Termination by Nubis. Nubis may cancel or suspend Customer’s use of the Service or a portion of thereof at any time if Customer violates the terms of this Agreement, if Nubis believes that Customer’s use of the Service represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Service, or if Nubis is otherwise required by law to do so. Upon notification by Nubis of any such cancellation or suspension, Customer’s right to use the Service will stop immediately. Cancellation or suspension of the Service for Customer’s violation of the terms of this Agreement will not change Customer’s obligation to pay any Subscription fees due for the applicable Term.

4.2 Termination by Customer. Customer may terminate a Subscription or reduce the number of User Licenses at any time during its Term. A termination will be effective at the end of the monthly Subscription cycle during which customer terminates the Subscription or reduces the number of User Licenses. Customer must pay for the period prior to the termination effective date.

4.3 Effect of termination. Upon termination or cancellation of the Service by either party for any reason, Nubis may delete Customer’s data permanently from its servers. Notwithstanding the foregoing, Nubis will keep Customer’s data for a period of 90 days before it is deleted from Nubis’ servers. Customer is solely responsible for taking the necessary steps to back up its data and ensure that it maintains its primary means of business.

4.4 Waiver of rights and obligations. To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.

4.5 No liability for deletion of data. Customer acknowledges that, other than as expressly described in these terms, Nubis will have no obligation to continue to hold, export or return Customer’s data. Customer acknowledges that Nubis will have no liability whatsoever for deletion of Customer data pursuant to these terms.

5. Use rights and limitations

5.1 SLAs. Nubis will comply with the then-current SLA in place relating to the Services, as set forth in Appendix A

5.2 Customer’s Use. In using the Service, Customer will:

·         comply with all laws;

·         comply with any codes of conduct or other notices provided by Nubis ;

·         comply with the Nubis Anti-spam Policy,

·         keep its password secret, and

·         Promptly notify Nubis if it learns of a security breach or unauthorized access related to the Service.

Customer may not:

·         use the Service in any way that harms Nubis or its Affiliates, resellers, distributors and/or vendors (collectively, the “Nubis parties”), or any customer of a Nubis party or the Service or other Users;

·         engage in, facilitate, or further unlawful conduct;

·         damage, disable, overburden or impair the Service (or the networks connected to the Service) or interfere with anyone’s use and enjoyment of the Service;

·         resell or redistribute the Service, or any part of the Service, unless Customer has a contract with Nubis that permits it to do so;

·         use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”);

·         use any unauthorized automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by Nubis or “meta-searching”), however, periodic automated access to the Service for report creation or scheduling is permitted;

·         use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;

·         modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology, or system used by Nubis in connection with providing the Service, except and only to the extent that applicable law expressly permits Customer to do so despite this limitation;

·         create Internet "links" to the Service or "frame" or "mirror" any content of the Service to give the impression that Customer is offering all of the functionality of the Service as its service located on its own servers;

·         build a product or service using similar ideas, features, functions or graphics of the Service;

·         Copy any ideas, features, functions or graphics of the Service.

5.3 Limits on Service. Nubis may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that Nubis , Customer or its Users provide, the number and size of email messages that Customer may send or receive through the Service, the maximum storage space on Nubis’ servers available to Customer, the number of Service accounts to which Customer may subscribe, how long Nubis retains an inactive Service account (one where Customer does not sign in to the Service for an extended period of time; the number of transactions Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization

5.4 Use of Other Nubis Services. Customer may need to use certain Nubis websites or services to access and use the Services. If so, the terms of use associated with those websites or services, as applicable, apply to Customer’s use of them.

5.5 Third Party Services. Nubis may make services from third parties available to Customer through the Service. These third party services are the responsibility of the third party, not Nubis. The third party service providers may require Customer to accept additional terms and conditions and/or pay a fee in order to use their services. Those additional terms and conditions are between Customer and the third party. Any third party’s use of information Customer provides as part of using their service is subject to the privacy statements and practices of that third party and/or their suppliers. Nubis encourages Customer to review the privacy statement of these third party providers. Nubis is not responsible for the privacy statements or privacy practices of these third party providers or their suppliers.

6. user generated content

6.1 Content. Nubis, Customer, its Users and associated account users and third parties may be able to post or store materials, including data, documents, information, advertisements, communications, messages and links to third party websites (“content”) on the Service. Customer may be able to post or provide materials (including feedback) that are part of the Service in a publicly accessible or other public area that allows Customer to communicate with others (“public areas of the Service”). It also includes areas of the Service to which Customer can control access by authorized users of associated accounts (“private areas of the Service”).

6.2 Intellectual property rights. Nubis does not sanction or approve the unauthorized use of content protected by copyright and other intellectual property rights. Customer understands that sharing content that violates others’ copyrights and intellectual property rights violates this Agreement. Customer represents and warrants that the use and publication of the content by Customer and others does not violate the intellectual property rights of any third party. Customer understands that Nubis may remove content at any time without notice when the content violates this Agreement or an applicable code of conduct, or when Nubis has a good faith reason to believe it is necessary to do so.

6.3 Posting Content. Customer acknowledges that Nubis does not control or endorse the content that it and others post or provide on the Service. Nubis doesn’t claim ownership of content that Customer and others post or provide. By posting or providing content, Customer grants Nubis and the public (for content posted on publicly accessible areas of the Service), or those authorized Users of associated accounts to which Customer has granted access (for content posted on private areas of the Service), free, unlimited worldwide and perpetual permission to use, modify, copy, distribute and display the content and publish Customer’s name with the content. Customer also gives the public, or those members of the public to which Custer has granted access, permission to grant these rights to others. Customer represents and warrants that it has all the rights necessary to grant the rights in this section and that the use and publication of the content does not breach any law. Nubis will not pay Customer for content posted on public areas of the Service. This section only applies to legally permissible content and only to the extent that use and publishing of the legally permissible content does not breach the law.

6.4 Private areas of the Service. Customer acknowledges that certain technical processing of content posted on private areas of the Service may be required to store and retrieve the content, conform to connecting networks’ technical requirements, or conform to the limitations of the Service.

6.5 Links to third-party Web sites. The Service may contain links to third-party websites. These third-party websites are not under Nubis’ control. If Nubis has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by Nubis of any third-party website, service or product. Nubis reserves the right to disable links to any third-party website that Customer posts on the Service.

6.6 Nubis will not own any Customer data. Nubis performs regular backups of Customer data for the purpose of recovery in the event of a failure in Nubis’ data centers. However, notwithstanding the foregoing, Customer is solely responsible for maintaining and backing up any Customer data that it uses with the Service. Customer, not Nubis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such data. Nubis shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data that Customer uses with the Service.

7. associated accounts

Only Customer may use its Service account. However, Nubis may allow Customer to setup additional member accounts that are dependent on Customer’s account (an “associated account”). Nubis may limit associated accounts. Customer is responsible for all activity under its Service account, associated accounts and passwords. Customer is solely responsible for monitoring usage of its Service account and for any use or misuse of its Service account or the Service resulting from any associated account or any third party using any password or user name selected by or issued to Customer. If Customer is the authorized User of an associated account, then the person or entity that gave Customer access to the Service (the account holder) has full control over Customer’s associated account. This control includes the right to end the Service, close or alter Customer’s associated account at any time, and, in some cases, request and receive machine and Service usage information related to Customer’s associated account.

8. Pre-Release Service

If the version of the Service that is licensed to Customer is a pre-release or early access version (“Beta Version”), then it may not work the way a final version of the feature or Service will. Nubis reserves the right to not release a commercial version of, or to change, any Beta Version of the Service at any time without notice to Customer. Any such Beta Version, including its user interface, features and documentation (“Confidential Information”), is confidential and proprietary to Nubis and its suppliers. For five years after Customer subscribes to the Beta Version of the Service or the subsequent commercial version of the Service, whichever is first, Customer agrees not to disclose any Confidential Information to third parties or to use any Confidential Information other than for its internal purposes in connection with Customer’s use of the Service. Customer may disclose Confidential Information only to its employees and consultants who need to know the information and who have signed agreements containing restrictions at least as protective of the Confidential Information as those contained herein. Customer’s duty to protect Confidential Information survives this Agreement. Notwithstanding the foregoing, Customer may disclose confidential information in response to a judicial or governmental order, so long as Customer first gives written notice to Nubis to allow it to seek a protective order or otherwise protect the information. Confidential information does not include information that: (1) becomes publicly known through no wrongful act; (2) is received from a third party who did not breach confidentiality obligations to Nubis or its suppliers; or (3) is independently developed by Customer without the use of, or access to, the Confidential Information.

9. confidentiality

Nubis and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.

10. warranties

10.1 Limited warranty. Nubis warrants that the Services and Client Software will conform substantially to the description of them contained in the applicable Nubis user documentation. This limited warranty is subject to the following limitations:

·         this limited warranty applies only during the Term, including any renewals ("Warranty Period");

·         any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;

·         this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement, or resulting from events beyond Nubis’ reasonable control;

·         this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and

·         This limited warranty does not apply to downtime or other interruption in access to the Services, or any other performance metrics that are addressed in the SLA (see Appendix A).

10.2 Remedies for breach of limited warranty. If Customer notifies Nubis within the Warranty Period that a Service does not meet the limited warranty, then Nubis will, at its option, either (1) return the amount paid for the Service during the (a) Term or (b) 12 months prior to delivery of notice to Nubis , whichever is less, or (2) update such Service to make it conform. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

10.3 DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY, NUBIS PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. NUBIS DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.

11. Defense of infringement and misappropriation claims

11.1 Agreement to protect. Nubis will defend Customer against any claims made by an unaffiliated third party that any Service or Client Software infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information. Nubis will also pay the amount of any resulting adverse final judgment (or settlement to which Nubis consents). This Section provides Customer’s exclusive remedy for these claims. The term "undisclosed information" is as defined in Article 38.2 of the TRIPs agreement.

11.2 What Customer must do? Customer must notify Nubis promptly in writing of the claim and give Nubis sole control over its defense or settlement. Customer must also provide Nubis with reasonable assistance in defending the claim. Nubis will reimburse Customer for reasonable out of pocket expenses that it incurs in providing that assistance.

11.3 Limitations on defense obligation. Nubis’ obligations will not apply to the extent that the claim or award is based on:

·         Customer’s use of the Service or Client Software after Nubis notifies it to discontinue its use due to a third party claim;

·         Customer’s combination of the Service or any related Client Software with a non-Nubis product, data or business process;

·         Damages attributable to the value of the use of a non-Nubis product, data or business process;

·         Customer’s use of Nubis’ trademark(s) without express written consent to do so; or

·         any trade secret or undisclosed information claim, where Customer acquires the trade secret or undisclosed information (1) through improper means; (2) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other than Nubis) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret or undisclosed information.

Customer will reimburse Nubis for any costs or damages that result from any of the above actions.

11.4 Specific rights and remedies in case of infringement.

(a) Nubis’ rights in addressing possible infringement. If Nubis receives information concerning an infringement claim related to a Service or Client Software, Nubis may, at its expense and without obligation to do so:

(1)     Procure for Customer the right to continue to use the allegedly infringing Service and/or Client Software

(2)     Modify the Service and/or Client Software

(3)    Replace the Service and/or Client Software with a functional equivalent, to make it non-infringing, in which case Customer will immediately stop using the allegedly infringing Service and/or Client Software after receiving notice from Nubis.

(b) Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, Customer’s use of a Service or Client Software is enjoined by a court of competent jurisdiction, Nubis will, at its option, either:

(1)     Procure the right to continue its use;

(2)     Replace it with a functional equivalent;

(3)     Modify it to make it non-infringing; or

(4)    Terminate the License for the infringing Service and/or related Client Software and refund any amounts paid in advance by Customer for unused Services.

12. Limitation of liability

12.1 Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of Nubis and of Nubis’ contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid Nubis for the Service and/or Client Software giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:

·         Nubis’ obligations under the Section titled "Defense of infringement and misappropriation claims";

·         Customer’s use of Nubis’ trademark(s) without express written consent to do so;

·         Liability for damages awarded by a court of final adjudication for Nubis’ or its employees’ or agents’ gross negligence or willful misconduct;

·         Liabilities arising out of any breach by Nubis of its obligations under the Section entitled "Confidentiality"; or

·         Liability for personal injury or death caused by Nubis’ negligence or that of its employees or agents or for fraudulent misrepresentation.

12.2 EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

13. Miscellaneous

13.1 Notices to Nubis. Notices, authorizations, and requests in connection with this Agreement must be sent by regular or overnight mail, or express courier, to the addresses listed below. Notices will be treated as delivered on the date shown on the return receipt. Termination of the Agreement, a Subscription, or cancellation of a Subscription should be via its Nubis service contact.

Notices should be sent to:

Nubis, LLC

One Park Plaza, Suite 600

Irvine, CA  92614

13.2 Assignment. Customer may not assign this Agreement. Nubis may assign this Agreement to its Affiliates.

13.3 Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

13.4 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

13.5 Applicable law. This Agreement is governed by the laws of the State of California without regard to its conflict of laws principles, except that (1) if Customer is an entity of the U.S. Government, this Agreement is governed by the laws of the United States, and (2) if Customer is an entity of a state or local government in the United States, this Agreement is governed by the laws of that state. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Services are protected by copyright and other intellectual property rights laws and international treaties.

13.6 Dispute resolution. Any action to enforce this Agreement must be brought in the State of California, USA. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. If Customer is an entity of the U.S. Government or an entity of a state or local government, this Section does not apply and jurisdiction and venue will be determined by applicable law.

13.7 This Agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non-Nubis software or services.

13.8 Entire agreement. This Agreement, any SLAs, and the pricing and payment terms available set forth in the Order constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications.

13.9 Survival. Provisions regarding fees, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled "Miscellaneous" will survive termination of this Agreement.

13.11 Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Section will not, however, apply to Customer’s payment obligations under this Agreement.

13.15 Natural disaster. In the event of a natural disaster, Nubis may post information or provide additional assistance or rights on http://www.Nubis1.com.

Appendix A - Service Level Agreement (“SLA”)

Nubis Hosting Service Level Agreement (“SLA”)

Nubis provides this SLA subject to the terms and conditions below, which will be fixed for the duration of the initial term of the Service subscription. If a Service subscription is renewed, the version of this SLA that is current at the time the renewal term commences will apply throughout the renewal term.

A.  Monthly Service Level

1.           The Service Level is 99.9%.

2.           The Monthly Uptime Percentage is calculated for a given calendar month using the following formula:

Monthly Uptime Percentage =

Total number of minutes

in a given calendar month

minus

Total number of minutes of Downtime in a given calendar month

Total number of minutes

in a given calendar month

B. Service Credits

1.           Should the Service Level fall below 99.9% for a given month, Nubis will provide a Service Credit as noted in the chart below:

 Monthly Uptime Percentage

Service Credit*

< 99.9%

25%

< 99%

50%

< 95%

100%

*Service Credit will be issued against the applicable month’s Subscription Fee paid by Customer for the Service.

2.           A Service Credit is Customer’s sole and exclusive remedy for any violation of this SLA.

3.           A Service Credit awarded in any calendar month shall not, under any circumstance, exceed Customer’s monthly Subscription Fee.

C. Claims

1.        In order to make a Claim, Customers must be in compliance with policies for acceptable use of the Service found in this agreement.

2.        Customer must submit a claim to billing support at Nubis LLC. 

3.        Customer must provide all reasonable details regarding the Claim, including but not limited to, detailed description of the Incident, the duration of the Incident, the number of affected users and the locations of such users and any attempts made by Customer to resolve the Incident.

4.        Customer must provide sufficient evidence to support the Claim, by the end of the month following the month in which the Incident which is the subject of the Claim occurs (for example, Incident occurs on January 15th, Customer provides Notice on January 20th, Customer must provide sufficient evidence to support the Claim by February 28th).

5.        Nubis will use all information reasonably available to it to validate Claims and make a good faith judgment on whether the SLA and Service Levels apply to the Claim.

6.        Nubis will use commercially reasonable efforts to process Claims within 45-days.

D. Exclusions

Downtime does not include:

1)       The period of time when the Service is not available as a result of Scheduled Downtime; or

2)       The following performance or availability issues that may affect the Service:

a)        Due to factors outside Nubis’ reasonable control;

b)       Related to add-on features for the Service, including, but not limited to Internet Marketing or Reporting Services;

c)       That resulted from Customer’s or third party hardware, software or services;

d)       That resulted from actions or inactions of Customer or third parties;

e)       That resulted from actions or inactions by Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to Nubis’ network by means of Customer’s passwords or equipment.

f)        That were caused by Customer’s use of the Service after Nubis advised Customer to modify its use of the Service, if Customer did not modify its use as advised;

g)       Intermittent periods of Downtime that are ten minutes or less in duration. 

E. Definitions:

1)       Agreement” means the Nubis Hosting Terms of Service Agreement that governs the Service.

2)       Claim” means a claim submitted by Customer to Nubis that a Service Level under this SLA has not been met and that a Service Credit may be due to Customer.

3)       Customer” means the person or organization that contracted for Services under the Agreement.

4)       Downtime” means a period of time when Customers are unable to read or write any Service data for which they have appropriate permission.

5)       Exclusions” means the performance or availability issues that are noted in Section D.

6)       Incident” means a set of circumstances resulting in an inability to meet a Service Level.

7)       Nubis” means Nubis LLC (or if applicable, its affiliate).