Nucleaus End User License Agreement
This End User License Agreement (“EULA”) is an agreement between Nucleaus, LLC (“Nucleaus,” “we,” “us,” or “our”) and you (”you” or “Customer”).
You represent to us that you are lawfully able to enter into contracts and that you have legal authority to bind Customer to this EULA.
This EULA is effective between you and Nucleaus as of the date you indicate acceptance of this EULA, either by executing an Order Form that references this EULA or by accessing or using the Services, whichever comes first (the “Effective Date”). If you do not accept and agree to the following terms and conditions, you must not access or use the Services.
- This EULA contains the terms and conditions that govern your access to and use of the Nucleaus software services (the “Software Service”), any applications, including mobile applications, through which we make the Software Service available (the “Application(s)”), any other websites through which we make the Software Service available, and all content contained therein, including all enhancements, versions, and modifications to the foregoing, if provided by us in our sole discretion (collectively, the “Services”). Use of, or access to, any software and associated documentation that is made available via the Services through a SaaS portal or dashboard or that is provided to you for download (“Software”) is also governed by the terms of this EULA. At no time will we provide you with any tangible copy of the Software.
- If you order Services through an on-line registration page or an order form (each, an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering, including the costs associated with such Services, the period of time you will have access to the ordered Service(s) (the “Access Term”), the number of authorized users that will have access to the order Services(s), and the schedule of payments for the performance of such Services. Each such Order Form is incorporated herein by reference.
- License and Access. Subject to the terms and conditions of this EULA, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable license to use, display and reproduce the Nucleaus Content during the Access Term identified in the applicable Order Form solely for your internal business use and for no other purpose (including to view, download, print and/or retain a copy of reports or other content from the Services for your own internal purposes), provided you limit access to the Nucleaus Content to only those of your employees or authorized representatives who have a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. You will immediately notify us in the event of any loss or unauthorized disclosure of any Nucleaus Content. We may provide limited technical support services as part of the Services in accordance with our standard practices and as set forth in the applicable Order Form. On or as soon as reasonably practicable after the Effective Date (as defined below), we will provide to you the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow you to access the Services. You shall notify us immediately of any unauthorized use of your Access Protocols or any other known or suspected breach of security.
- Changes to Services. We reserve the right to suspend any Services (i) during planned downtime, (ii) in connection with a force majeure event, or (iii) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to modify, suspend or discontinue any features, components or functions of the Services. If we make any material changes to the Services, we will notify you through the Website or Application or by sending you a notification in accordance with Section 15. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
- You may not: (i) cause or attempt to cause the Software in any way to be disassembled, decompiled, reverse engineered, or otherwise attempt to derive the source code or algorithms in the Software and/or Services, except to the extent permitted by applicable law (and in such case, provided that you must first request such information from us and we may either provide such information or impose reasonable conditions, including a fee, on such use to ensure that our intellectual property rights are protected), or workaround any technology in the Services; (ii) make the Services available for access or use by any person or entity other than your employees; (iii) rent, lease, loan, redistribute, sublicense, sell, or otherwise provide access to the Services to any third party or provide it as a service bureau; (iv) copy or otherwise reproduce, translate, port, modify, or make derivative works of the Services; (v) publish any performance or benchmark tests or analysis related to the Services; or (vi) use the Services to create a product or service that competes with the Service. You and your employees must comply with all applicable laws, rules and regulations when using the Services.
- GOVERNMENT RIGHTS; EXPORT CONTROL. Each of the components that constitute the Services, the Software, and related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Services, the Software and any documentation provided with the Services with only those rights set forth in this EULA. You may not remove or export from the United States or allow the export or re-export of the Services, the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Nucleaus products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- RULES REGARDING CONTENT. The Services, including the materials, information and content available through the Services (other than Customer Data (defined in Section 4 and third-party content (described in Section 12), and any derivative works thereof, including any images (collectively, the “Nucleaus Content”) are proprietary to us and should be considered our Confidential Information (defined in Section 14. Nucleaus, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copyrights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphical user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Nucleaus does not grant you any intellectual property rights in the Services, and all right, title, and interest in and to all copies of the Services, will remain with Nucleaus, its suppliers and/or its licensors. Nucleaus owns and shall continue to own all right, title, and interest in and to the Services (except for any third-party materials incorporated therein, which shall remain the sole property of the licensors of such third-party materials). You agree at all times to hold in strict confidence and not disclose to any third party the Nucleaus Content, or any component thereof, except as authorized by this EULA or otherwise approved in writing by us. Upon our written request, or any termination of this EULA, you must promptly delete or destroy all documents and other tangible materials representing any Nucleaus Content and all copies thereof.
- All data that you or your systems provide or transmit into the Service (“Customer Data”) will be, as between you and Nucleaus, owned by you. You hereby grant us a non-exclusive, worldwide, royalty-free, and fully-paid license to use the Customer Data for purposes of providing the Services and for purposes of collecting and analyzing aggregated Customer Data on a de-identified basis to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Nucleaus offerings. We may use and disclose such aggregated Customer Data in anonymized and de-identified form in connection with our business. For clarity, any statistics and information regarding your use of the Services (“Usage Data”) is separate from, and will not include or be deemed, Customer Data and we may use and disclose Usage Data in connection with our business.
- Customer Warranty. You represent and warrant that you have all necessary rights to use and provide Customer Data to us. You further represent and warrant that you are not violating any existing agreements or laws and regulations by providing us with Customer Data. We are not obligated to back up any Customer Data; you are solely responsible for creating backup copies of any Customer Data at your sole cost and expense. You agree that any use of the Services contrary to or in violation of your representations and warranties in this subsection 4 constitutes unauthorized and improper use of the Services.
- Customer Responsibility for Data and Security. You will be responsible for the security of all passwords and other Access Protocols required in order the access the Services, and you will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
- Supported Environment. You shall be responsible for the selection and purchase of your own equipment and will obtain all necessary rights and licenses from any third-party software or hardware which are necessary for the Services to work with the minimum hardware, software, and connectivity configuration specified by us from time to time.
- Data Transmission and Storage by Nucleaus. In connection with the Services, we may install, or require you to install, a virtual device on your network to collect certain network security related data (“Network Data”) and transmit such Network Data to our servers in order for us to analyze such Network Data in connection with the Services. To enable the transmission and storage of Network Data, during implementation of the Services, one of your identified administrators will be required to enter certain credentials into our “Secret Vault,” which such credentials may continue to be accessed and modified by your administrator and may be accessed by Nucleaus only on a read-only basis. Network Data will be encrypted in transit and at rest on our servers.
- TECHNOLOGY. You understand and acknowledge that the Services, including all applications and Software, and all other software, code, proprietary methods and systems used to provide the Services (“Nucleaus Technology”) are: (a) copyrighted by us and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by us or our licensors. Nucleaus Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Nucleaus Technology. Nothing in this EULA grants you any right to receive delivery of a copy of Nucleaus Technology or to obtain access to Nucleaus Technology except as generally and ordinarily permitted through the Services, according to this EULA. Furthermore, nothing in this EULA will be deemed to grant, by implication, estoppel or otherwise, a license to any Nucleaus Technology except as expressly provided herein, and we reserve all rights not expressly granted herein. Certain of the names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Nucleaus or other entities. You are not authorized to use any such Marks except in connection with your use of the Services in accordance with this EULA. Ownership of all such Marks and the goodwill associated therewith remains with Nucleaus or those other entities.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, Nucleaus TECHNOLOGY AND ALL Nucleaus CONTENT IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. Nucleaus EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Nucleaus IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DATA LOSS OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE Nucleaus CONTENT.
- Generally. You shall pay to Nucleaus, without offset or deduction, the fees set forth in the Order Form(s) (“Fees”). We reserve the right (in addition to any other rights or remedies we may have) to discontinue the Services and suspend your access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. You will maintain complete, accurate and up-to-date billing and contact information at all times.
- Subscription Fees. If you subscribe to the Services on a monthly subscription basis, you acknowledge and agree that such subscription will automatically renew on a monthly basis, and you will be automatically charged the subscription fee on the Effective Date, and again on every anniversary thereafter (each, a “Renewal Commencement Date”). You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at least fifteen (15) days prior to the Renewal Commencement Date, by written notification to Nucleaus. If you do not wish for the subscription to automatically renew, you may provide notice in accordance with Section 18. If you cancel your subscription, you may continue to access the applicable Service until the end of the then-current subscription period; however, such subscription will not be renewed after the then-current term. You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current term. By subscribing, you authorize us to charge the payment method designated in the Order Form or within your account on the Effective Date, and again at the beginning of any Renewal Commencement Date. We reserve the right to increase the Fees payable hereunder upon written notice to you at least ninety (90) days prior each increase in Fees.
- The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on our income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees or the provision of the Services to you. You will make all payments of Fees to us free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to us will be your sole responsibility, and you will provide us with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
- Interest. Any amounts not paid when due will bear interest at the greater of one and one-half percent (1.5%) per month, or the maximum legal rate, from the due date until paid.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL Nucleaus OR ANY OF ITS AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT, OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF Nucleaus HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. IN NO EVENT WILL Nucleaus’S LIABILITY FOR ANY DAMAGES TO YOU OR ANY THIRD PARTY EVER EXCEED THE FEES PAID TO Nucleaus DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. YOU ACKNOWLEDGE AND AGREE THAT THE FEES HAVE BEEN SET AND THE EULA ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US.
- To the maximum extent permitted by law, you agree to indemnify, defend, and hold Nucleaus harmless from any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable fees for attorneys) that we may sustain or incur from your use of the Services, the approved publication and disclosure of your Security Score, any Customer Data, or from your breach of any of your obligations or any restrictions set forth in this EULA.
- NO DUTY TO CORRECT ERRORS. Without limiting the provisions of Section 1, you acknowledge and agree that we have no obligation under this EULA to correct any defects or errors in the Services furnished to you under this EULA, regardless of whether you inform us of such defects or errors or we otherwise are, or become aware of, such defects or errors. To the extent we provide you with any updates or upgrades to the Services or Software, such updates and upgrades shall be deemed to constitute part of the Services and Software and shall be subject to all terms and provisions set forth in this EULA, including, without limitation, terms and provisions related to use restrictions, ownership and distribution of the Services and Software.
- Confidential Information. During the term of this EULA, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, the Services, including the Nucleaus Content, Applications and Software, and all enhancements and improvements thereto will be considered Confidential Information of Nucleaus, and any Customer Data will, subject to Section 5(a), be considered your Confidential Information.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this EULA. The Receiving Party will limit access to the Confidential Information to those employees or agents who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own confidential information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this EULA, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this EULA, and the Receiving Party shall provide to the Disclosing Party written confirmation of its compliance with this sentence.
- The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this EULA or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Term. The EULA shall commence on the date set forth in the applicable Order Form, or if no such date is set forth, the date you accept this EULA or first access the Services, whichever first occurs (the “Effective Date”) and continues as long as any Order Form remains in effect, unless earlier terminated in accordance with this EULA. IF YOU SUBSCRIBE TO THE SERVICES ON A SUBSCRIPTION BASIS, THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SUBSECTION 9(B).
- Termination. Either party may terminate this EULA immediately upon written notice to the other party if the other party materially breaches this EULA, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination, all rights granted to you under this EULA will immediately cease, you may not thereafter use the Services, we may delete any information or content you have provided to us through use of the Services, and any amounts owed to us under this EULA will become immediately due and payable. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive, as well as any other limitations on liability explicitly set forth herein and our proprietary rights in and to the Services, Nucleaus Content, and Nucleaus Technology will survive the expiration or termination of this EULA for any reason.
- All notices required or permitted under this EULA must be delivered in writing, if to us, by emailing notices@Nucleaus.comand if to you by emailing the email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
- GENERAL PROVISIONS. This EULA will be governed by the laws of the State of North Carolina, without regard to, or application of, rules or principles regarding conflicts of law. The state and federal courts located in Wake County, North Carolina shall have sole and exclusive jurisdiction over any disputes arising under this EULA, and you agree to submit to the personal jurisdiction of such courts. You acknowledge that we will have the right to seek an injunction if necessary to prevent a breach of your obligations hereunder. If any provision of this EULA is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that we prevail in any proceeding or lawsuit brought by either party in connection with this EULA, we will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Our failure to require your performance of any provision in this EULA shall not affect our full right to require such performance at any time thereafter; nor shall our waiver of any breach of any provision of this EULA be taken or held to be a waiver of the provision itself. You may not assign this EULA or assign or delegate any of your rights or obligations hereunder without our prior written consent. Any attempted or purported assignment by you shall be null and void. Your relationship to us is that of an independent contractor, and neither party is an agent or partner of the other. You will not have and will not represent to any third party that you have, any authority to act on behalf of us. This EULA, including all Order Forms, is the complete and exclusive statement of the agreement between Nucleaus and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this EULA.