THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) CONSTITUTES A BINDING LEGAL CONTRACT BETWEEN YOU (“CUSTOMER”) AND NESA, INC. (“NESA”) AND GOVERNS CUSTOMER’S ACQUISITION AND USE OF NESA PRODUCTS AND SERVICES (“SERVICES”).
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM WITH NESA OR A NESA PARTNER THAT REFERENCES THIS AGREEMENT, OR (3) ACCESSING OR USING A NESA SERVICE OR AUTHORIZING OR PERMITTING A USER TO ACCESS OR USE A NESA SERVICE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
NESA’s Services may not be accessed by any party whose products or services are competitive with NESA, except with NESA’s prior written consent. In addition, NESA’s Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between Customer and NESA as of the earlier of: (a) the date of Customer’s accepting this Agreement or (b) the date Customer first accesses or otherwise uses the Services (the “Effective Date”). If Customer has executed a Master Services Agreement directly with NESA, the terms of that Agreement shall govern Customer’s use of the Services, and this Agreement shall not apply.
1. DEFINITIONS
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Customer Data” means electronic data and information submitted by or for Customer to the Software or collected and processed by or for Customer as a result of Customer’s use of the Software. Customer Data does not include protected health information (“PHI”) or personally identifiable information (“PII”), which the Software does not access, process, store, or transmit.
1.3. “Customer Systems” means Customer’s own systems, infrastructure and personnel used to access and operate the Software, including, but not limited to, Customer’s servers, hardware, devices, data systems, internet connectivity, electric power, operating software and software applications (other than the Software), and any Non-NESA Products and Services that interoperate with the Software.
1.4. “Disruption Event” means either: (a) a User’s use of the Software which could disrupt: (i) the Software or (ii) NESA’s network or servers used to provide the Software; or (b) unauthorized third-party access to the Software.
1.5. “Documentation” means any documentation and Service feature descriptions, as updated from time to time, as NESA may provide to Customer in print or electronic form.
1.6. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.7. “NESA Partner” means one of NESA’s authorized resellers, distributors or other partners, through whom Customer purchases the Software.
1.8. “Non-NESA Products and Services” means any third-party hardware or other software application functionality that interoperate with the Software, whether provided by NESA, a third party or Customer.
1.9. “On-Premise Software” means electronically delivered Software provided for installation on computer owned or managed by Customer.
1.10. “Order Form” means a document specifying the Purchased Services to be provided under this Agreement that is entered into between Customer and NESA or any NESA Partner, including any addenda and supplements thereto. Each Order Form is incorporated into and governed by this Agreement.
1.11. “Permitted Purpose” means the use of the Software in accordance with the Documentation and the terms of this Agreement solely for Customer’s own internal business purposes.
1.12. “Professional Services” means the product implementation, training, and/or other professional services to be provided by NESA to Customer to the extent purchased by Customer as part of the Purchased Services under an Order Form.
1.13. “Purchased Services” means collectively: (a) the On-Premise Software; (b) Professional Services and (c) Support Services; (d) Non-NESA Products and Services; and (e) any other services that Customer or Customer’s Affiliate purchases under an Order Form.
1.14. “Software” means the applicable object code form of the NESA software as listed on the Order Form.
1.15. “Support Services” means the services set forth in Section 2.2, at the level of support listed on the applicable Order Form.
1.16. “User” means an individual who is authorized by Customer to use the Software, for whom Customer has ordered the Software, and to whom Customer (or, when applicable, NESA at Customer’s request) has supplied a user identification and password (for Software utilizing authentication).
2. NESA RESPONSIBILITIES
2.1. Provision of Purchased Services. NESA will provide the Purchased Services to Customer in accordance with this Agreement, the applicable Order Forms, and the Documentation. During the Term (as defined below) and subject to the terms and restrictions set forth in this Agreement, NESA grants Customer a non-exclusive, non-transferable, time-bounded, limited license (also referred to as a “subscription”) to use the Software. NESA reserves the right to make changes to the Software at any time and from time to time, provided, however, that NESA will not materially decrease the functionality of Software purchased by Customer during the applicable subscription term. If NESA makes a material change to the Software, NESA will notify Customer of such change in accordance with the “Manner of Giving Notice” section below.
2.2. Customer Support. During the term of this Agreement and subject to the payment of all fees, NESA shall provide support for Software subscriptions purchased by Customer pursuant to an Order Form in accordance with the terms and conditions of this “Customer Support” section as well as the applicable service levels set forth in Exhibit 1 unless otherwise agreed in such Order Form. Support shall be provided exclusively to Customer’s administrative person(s) responsible for the operation and functioning of the Software, including the resolution of errors, and not to Users. Support specifically does not include end- user training or requests for enhancements or changes. Initial support requests should be initiated directly inside the Software platform or website, at NESA’s support desk, or at support@nesasolutions.com.
2.3. Protection of Customer Data. As of the Effective Date, the Software does not access PHI or PII. If Support Services are required, Customer must explicitly grant access using an approved Customer- supplied remote support tool that includes monitoring, auditing, and/or time-limited access controls. During support interactions, NESA will not be exposed to PHI or PII. NESA shall only access Customer Data as strictly necessary to provide the Purchased Services and only to the extent expressly authorized by the Customer. NESA shall maintain commercially reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data.
3. NESA PARTNER ORDERS
3.1. Pursuant to a separate agreement between Customer and an authorized NESA Partner (including the applicable ordering document between Customer and such NESA Partner, the “Partner Agreement”), Customer may procure from such NESA Partner certain products or services to be delivered by NESA. In such event, this Agreement specifies the terms and conditions under which such products or services will be provided by NESA.
3.2. Notwithstanding anything to the contrary in this Agreement, if Customer acquires any Purchased Services through a NESA Partner, then: (a) Customer shall pay the NESA Partner all applicable fees in accordance with the Partner Agreement; (b) the Partner Agreement is between Customer and the NESA Partner and is not binding on NESA, and any disputes related to the Partner Agreement shall be handled directly between Customer and the NESA Partner; and (c) the Partner Agreement shall not modify any of the terms set forth herein. In the event of any conflict between this Agreement and a Partner Agreement, this Agreement shall govern as between NESA and Customer.
4. USE OF SOFTWARE
4.1. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data; the means by which Customer acquired Customer Data; Customer’s use of Customer Data with the Software; and the provision, maintenance interoperation of any Customer Systems with which Customer uses the Software, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify NESA promptly of any such unauthorized access or use, (d) use the Software only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, (e) comply with the terms of use of any Non-NESA Products and Services with which Customer uses the Software, and (f) not share any User password(s) with any other individual.
4.2. Usage Restrictions. Customer will not (a) make Software available to anyone other than Customer or Users, or use the Software for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Software, or include the Software in a service bureau or outsourcing offering, (c) use the Software other than for the Permitted Purpose, (d) use a Service or Non-NESA Products and Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (r) use the Software or Non-NESA Products and Services to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of the Software or third- party data contained therein, (g) attempt to gain unauthorized access to the Software or its related systems or networks, (h) use the Software to access or use any of NESA intellectual property except as permitted under this Agreement or an Order Form, (i) modify, copy, or create derivative works based on the Software or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Software, other than framing on Customer’s own intranets or otherwise for its own internal business purposes, (k) load or penetration test the Software or otherwise use the Software in any way that is, or could reasonably be expected to be, detrimental to NESA’s ability to provide services; (l) disassemble, reverse engineer, or decompile the Software or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Software, or (4) determine whether the Software is within the scope of any patent, (m) use the Software in a manner that violates any applicable law, ordinance, regulation or administrative order; or (n) permit anyone other than Customer or Users to do any of the foregoing.
4.3. Suspension. If NESA becomes aware of a violation of this Agreement by Customer or User(s), then NESA may immediately suspend User’s and/or Customer’s use of the Software. The duration of any suspension by NESA will be until the User and/or Customer has cured the breach that caused the suspension. Notwithstanding the foregoing, if there is a Disruption Event, then NESA may automatically suspend the offending use. The suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Disruption Event.
4.4. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by NESA regarding future functionality or features.
4.5. Affiliates. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if such Affiliate were an original party hereto.
5. NON-NESA PRODUCTS AND SERVICES
5.1. Non-NESA Products and Services. NESA or third parties may make available to Customer Non- NESA Products and Services, including but not limited to hardware products. Any such Non-NESA Products and Services acquired by Customer through NESA shall be subject to the terms and conditions of such acquisition, as specified in such corresponding Order Form. Any acquisition by Customer of such Non- NESA Products and Services not through NESA, and any exchange of data between Customer and Non- NESA Provider, is solely between Customer and the applicable non-NESA provider. NESA will provide support for Non-NESA Products and Services purchased through NESA during the applicable license term. While NESA does not independently warrant or guarantee the performance of any Non-NESA Products and Services, it will use commercially reasonable efforts to assist Customer in resolving any issues, coordinating with third-party vendors, and facilitating the exercise of any applicable warranties. The scope of NESA’s support for Non-NESA Products and Services is subject to the terms and conditions set by the applicable third-party vendor, including any limitations or exclusions imposed by the vendor’s warranty or service agreements.
5.2. Non-NESA Products and Services and Customer Data. If Customer installs or enables Non-NESA Products and Services for use with the Software, Customer acknowledges that NESA may allow providers of those Non-NESA Products and Services to access Customer Data as required for the interoperation of such Non-NESA Products and Services with the Software.
5.3. Integration with Non-NESA Products and Services. The Software may contain features designed to interoperate with Non-NESA Products and Services. To use such features, Customer may be required to obtain access to such Non-NESA Products and Services from their providers. NESA cannot guarantee the continued availability of such Software features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-NESA Products and Services ceases to make the Non-NESA Products and Services available for interoperation with the corresponding Software features in a manner acceptable to NESA.
5.4. Removal of Non-NESA Products and Services. If Customer receives notice that Non-NESA Products and Services must be removed, modified and/or disabled to avoid violating applicable law or third- party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in NESA’s judgment continued violation is likely to reoccur, NESA may disable the applicable Software and/or Non-NESA Products and Services. If requested by NESA, Customer shall confirm such deletion and discontinuance of use in writing and NESA shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable.
6. FEES AND PAYMENT
6.1. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees for Software are based on Software subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. Customer will reimburse all pre- approved travel and other expenses incurred in connection with delivery of the Purchased Services. Customer will be responsible for any payments owed but not paid by any of Customer’s Affiliates ordering Purchased Services hereunder.
6.2. Invoicing and Payment. NESA will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net thirty (30) days from the invoice date.
6.3. Overdue Charges. If any invoiced amount is not received by NESA by the due date, then without limiting NESA’s rights or remedies, (a) those charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) NESA may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above and/or (c) NESA may require Customer to pay any collections or legal fees incurred by NESA in order to collect payment of the corresponding invoiced amount.
6.4. Suspension of Software and Acceleration. If any charge owed by Customer under this or any other agreement for services is thirty (30) days or more overdue, NESA may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend use of the Software until such amounts are paid in full.
6.5. Taxes. Customer is responsible for paying all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with its purchases hereunder. If NESA has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, NESA will invoice Customer and Customer will pay that amount unless Customer provides NESA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, NESA is solely responsible for taxes assessable against it based on its income, property and employees.
6.6. NESA Partner Purchases. If Customer purchases Purchased Services through a NESA Partner, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be set forth in Customer’s agreement directly with such NESA Partner and such payment-related terms will supersede any conflicting terms set forth in this “Fees and Payment” section. NESA may suspend or terminate Customer access to the Software in the event of non-payment of the applicable fees to NESA by the NESA Partner.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, NESA, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Software, Documentation and Professional Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
7.2. NESA Right to Use Customer Data. Subject to the provisions of Section 2.3, Customer grants NESA, its Affiliates and applicable contractors the right to use Customer Data, in compliance with applicable law, in order to: (a) provide the Purchased Services in accordance with this Agreement, (b) prevent or address service or technical problems, or (c) as may be required by law. If Customer chooses to use Non- NESA Products and Services with the Software, Customer grants NESA permission to allow the Non-NESA Products and Services and their providers to access Customer Data and information about Customer’s usage of the Non-NESA Products and Services as appropriate for the interoperation of those Non-NESA Products and Services with the Software. Subject to the limited licenses granted herein, NESA acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
7.3. Customer Feedback. Customer, Customer’s Affiliates or Users may from time to time provide NESA with suggestions, comments, recommendations and/or feedback regarding the Software and/or NESA’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily and without compensation. As between the parties, all Feedback shall be exclusively owned by NESA and NESA shall be freely entitled to reproduce, prepare derivative works of, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback, at its sole discretion, without obligation or liability of any kind to Customer or to any other party.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of NESA includes the Software, Professional Services, Support Services and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional NESA services.
8.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, NESA may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-NESA application provider to the extent necessary to perform NESA’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. NESA Warranties. NESA warrants that during the term of this Agreement (a) Software purchased by Customer will perform materially in accordance with the specifications set forth in the Documentation; and (b) NESA will provide any Professional Services and Support Services in a professional and workmanlike manner. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Customer Support,” “Termination,” “Refund or Payment upon Termination” sections.
9.3. Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Purchased Services, as applicable (including applicable security breach notification law).
9.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NESA DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR NON-NESA PRODUCTS AND SERVICES.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by NESA. NESA will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Software subscription purchased by Customer infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by NESA in writing of, a Claim Against Customer, provided Customer (a) promptly gives NESA written notice of the Claim Against Customer, (b) gives NESA sole control of the defense and settlement of the Claim Against Customer (except that NESA may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives NESA all reasonable assistance. If NESA receives information about an infringement or misappropriation claim related to the Software, NESA may in its discretion and at no cost to Customer (i) modify the Software so that it is no longer claimed to infringe or misappropriate, without breaching NESA’s warranties under “NESA Warranties” above, (ii) obtain a license for Customer’s continued use of the Software in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Software upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Software is the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Software or any part thereof with software, hardware, data, or processes not provided by NESA, if the Purchased Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Software under an Order Form for which there is no charge; or (4) a Claim against Customer arises from any Non-NESA Products and Services or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
10.2. Indemnification by Customer. Customer will defend NESA and its Affiliates against any claim, demand, suit or proceeding made or brought against NESA by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data, (b) Customer Systems, or (c) the combination of Customer Systems used with the Software, infringes or misappropriates such third party’s intellectual property rights or violates any third party privacy rights, or arising from Customer’s use of the Software in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against NESA”), and will indemnify NESA from any damages, attorney fees and costs finally awarded against NESA as a result of, or for any amounts paid by NESA under a settlement approved by Customer in writing of, a Claim Against NESA, provided NESA (a) promptly gives Customer written notice of the Claim Against NESA, (b) gives Customer sole control of the defense and settlement of the Claim Against NESA (except that Customer may not settle any Claim Against NESA unless it unconditionally releases NESA of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
10.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. EXCEPT FOR THE OBLIGATIONS OF ANY APPLICABLE BUSINESS ASSOCIATE AGREEMENT EXECUTED BETWEEN NESA AND CUSTOMER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES (AND, FOR CUSTOMER PURCHASES PLACED THROUGH A NESA PARTNER(S), NESA PARTNER(S)), IN THE CASE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE PURCHASED SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. FOR THE AVOIDANCE OF ANY DOUBT, IN NO EVENT SHALL NESA, ITS AFFILIATES OR NESA PARTNERS HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CUSTOMER SYSTEMS (INCLUDING NON-NESA PRODUCTS AND SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES (OR, FOR CUSTOMER PURCHASES PLACED THROUGH A NESA PARTNER(S), NESA PARTNER(S)) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. The initial term of this Agreement shall commence on the Effective Date and continue until the expiration of any active subscription, including any renewals, whether purchased through NESA or a NESA Partner. For subscriptions purchased through a NESA Partner, Customer acknowledges that the expiration or termination of any applicable agreement between NESA and such NESA Partner may impact the availability or continuation of this Agreement and the associated subscriptions.
12.2. Termination. Either party may terminate this Agreement, including any applicable Order Form, for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by Customer for cause, NESA shall refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by NESA for cause, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event shall termination relieve Customer of its obligation to pay any fees accrued before the effective date of termination.
12.3. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Non-NESA Products and Services,” “Customer Data Portability and Deletion,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as NESA retains possession of Customer Data.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Software, other NESA technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. NESA and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.2. Federal Government End Use Provisions. NESA provides the Software, including related software and technology, for ultimate federal government end use in accordance with the following: The Software consists of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Software shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
13.3. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
13.4. Customer Reference. Customer hereby grants NESA the right to issue a press release announcing that Customer has become a customer of NESA, and to reproduce and display Customer’s name, logo and trademarks on NESA’s website and in brochures, social media and other marketing materials for the purpose of identifying NESA’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements and public disclosures by either party relating to this Agreement or its subject matter shall require the mutual approval of the parties.
13.5. Entire Agreement and Order of Precedence. This Agreement, together with Exhibit 1 and any applicable Order Forms, constitutes the entire agreement between NESA and Customer pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Order Form if between NESA and Customer directly, (3) the Documentation and (v) any other applicable agreement executed between NESA and Customer. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
13.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
13.7. 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
13.8. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.9. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.11. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.12. Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, epidemic or pandemic, and Internet disturbance) that was beyond the party’s reasonable control.
13.13. Law. This Agreement shall be governed and construed pursuant to the laws of the State of Florida without giving effect to its conflict-of-laws provisions that would require the laws of another jurisdiction to apply. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Miami, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
13.14. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
13.15. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Software system administrator designated by Customer.
EXHIBIT 1
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) sets forth the applicable services levels (“Service Levels”) to be provided by NESA, Inc. (“NESA”) in connection with the On-Premise Software to which Customer has subscribed. This SLA is subject to and incorporated into the End User Agreement (“Agreement”) and any terms not defined in this SLA shall have the meaning set forth therein.
1. Customer Support. During the term of the Agreement, NESA shall provide support with respect to Incidents reported by Customer. Support shall be provided exclusively to Customer’s administrative person(s) responsible for the operation and functioning of the Software, including the resolution of errors, and not to Users. Support specifically does not include end-user training or requests for enhancements or changes. Initial support requests should be initiated directly inside the Software platform or website, at NESA’s support desk, or at support@nesasolutions.com.
2. Remote Services. Customer acknowledges and agrees that NESA may provide Remote Services to Customer to assist in analyzing and Resolving any Incident. Customer agrees to provide NESA with access to Remote Access Software as well as Customer’s network, system and computers necessary for NESA to provide the Remote Services to Customer.
3. Response Times. NESA shall Respond to Incidents reported by Customer within the applicable timeframes indicated in the chart below, based on Customer’s selected support level, starting from the time NESA receives written notification of the Incident from Customer:
|
Basic |
Premium |
||
|
Response Times |
Incidents Reported During Normal Business Hours |
Incidents Reported Outside of Normal Business Hours |
|
|
Severity Level 1 |
1 business day |
2 hours |
4 hours |
|
Severity Level 2 |
1 business day |
4 hours |
8 hours |
|
Severity Level 3 |
2 business days |
8 business hours |
8 business hours |
Incident Severity Levels are determined by NESA in good faith based on the facts and circumstances. NESA will review the Incident, allocate appropriate resources to determine the source of the Error, and use commercially reasonable efforts to Resolve the Error.
4. Third-Party Errors. Where an Error results from one or more Third-Party Errors, Integration Issues, or Force Majeure Events, NESA will, if applicable and practical based on the issue, contact the responsible party to begin working toward resolution of the Error and use commercially reasonable efforts to achieve resolution of the Error. NESA will provide support for Non-NESA Products and Services purchased through NESA throughout the applicable license term. While NESA does not independently warrant or guarantee the performance of any Non-NESA Products and Services, it shall use commercially reasonable efforts to assist Customer in resolving any issues, coordinating with third-party vendors, and facilitating the exercise of any applicable warranties. The scope of support provided by NESA for Non- NESA Products and Services is subject to the terms and conditions set by the applicable third-party vendor, including any limitations or exclusions imposed by the vendor’s warranty or service agreements.
5. Exceptions. NESA has no obligation to deliver support for Errors that, in whole or in part, arise out of or result from any of the following (each a “Support Exception”):
- Software, or the media on which it is provided, that is modified or damaged by Customer or any third party;
- any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Customer’s use in the Documentation, unless otherwise expressly permitted in writing by NESA;
- any negligence, abuse, misapplication, or misuse of the Software other than by NESA Personnel, including any Customer use of the Software other than as specified in the Documentation or expressly authorized in writing by NESA;
- any delay or failure to perform any of Customer’s obligations under this Agreement, including Customer’s failure to promptly install any Maintenance Release that NESA has previously made available to Customer;
- any Force Majeure Event (including abnormal physical or electrical stress).
6. Definitions.
6.1. “Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.
6.2. “Incident” means a support request that begins when Customer contacts NESA to report one specific Error.
6.3. “Integration Issue” means an issue not caused by NESA that prevents NESA from programmatically communicating or integrating with a third party or that otherwise blocks NESA from providing the Software.
6.4. “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that NESA may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.
6.5. “NESA Hardware Partners” include, but are not limited to, Hanwha Vision America (“Hanwha”), Commend, Inc. (“Commend”) and Altus Industries, Inc. (“Altus”). For Hanwha’s hardware warranty policy, see here. For Commend’s hardware warranty policy, see here. Altus’ standard warranty policy, see here; upgraded warranty packages are available.
6.6. “New Version” means any new version of the Software that NESA may from time to time introduce and market generally as a distinct licensed product (as may be indicated by NESA’s designation of a new version number), and which NESA may make available to Customer at an additional cost under a separate written agreement.
6.7. “Normal Business Hours” means 8:00 am to 6:00 pm local time Monday through Friday.
6.8. “Remote Services” means the delivery of Software remotely over the internet through the use of Remote Access Software.
6.9. “Remote Access Software” means the remote support tool that NESA utilizes to provide remote Support Services. The Remote Access Software shall be supplied by Customer and include monitoring, auditing, and/or time-limited access controls. During support interactions, NESA will not be exposed to protected health information (“PHI”) or personally identifiable information (“PII”).
6.10. “Respond” means NESA’s initial communication with Customer, whether by telephone, e-mail, or otherwise, acknowledging Customer’s request for support in connection with a specific Error. “Response” has a correlative meaning.
6.11. “Severity Level 1” is an emergency condition which makes the use or continued use of the Software impossible or significantly or materially impaired such that Users cannot access the Software.
6.12. “Severity Level 2” is, other than any Severity Level 1 Error, any condition which makes the use or continued use of the Software difficult and which Customer cannot reasonably circumvent or avoid on a temporary basis without the expenditure of significant time, expense or effort.
6.13. “Severity Level 3” is, other than any Severity Level 1 or Severity Level 2 Error, any limited problem condition which is not critical and which Customer can reasonably circumvent or avoid on a temporary basis without the expenditure of significant time, expense or effort.
6.14. “System Maintenance” means time that NESA Software is not actually accessible to Customer Users due to: (A) scheduled maintenance, including providing a Maintenance Release and upgrading of Software; or (B) unscheduled emergency maintenance, including due to a Force Majeure Event or Third- Party Error.
6.15. “Third-Party Error” means an Error caused by third-party software or hardware, including open source software, Non-NESA Products and Services, etc.
6.16. “Software” means the executable, object code version of the software provided by NESA to Customer pursuant to the End User Agreement, and any Maintenance Releases provided to Customer, if applicable.
6.17. “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use the Software, for whom Customer has ordered the Software, and to whom Customer (or, when applicable, NESA at Customer’s request) has supplied a user identification and password (for Software utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer.