TERMS & CONDITIONS

1.              ACCEPTANCE.

2.              DEFINITIONS.

3.2           Restrictions. Except as otherwise expressly authorized by these Terms, Customer and its Users shall not: (a) modify, alter, tamper with, or make derivative works based upon the Services; (b) copy or reproduce all or any part of the Services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, except to the extent specifically allowed by applicable law; (d) access the Services in order to build a competitive product or service or to copy any ideas, features, functions, or graphics thereof; (e) license, sublicense, sell, resell, distribute, transfer, assign, or otherwise commercially exploit the Services; (f) access or use the Services in a way intended to avoid incurring Fees or exceeding usage limits or quotas; (g) provide any third-party with access to the Services; or (h) engage, permit, or otherwise allow any third-party to do any of the foregoing.

3.3           Prohibited Uses. Customer and its Users may access and use the Services solely for Customer’s internal organization purposes consistent with these Terms and applicable Documentation. In addition to the Restrictions in Section 3.2, Customer agrees that neither Customer nor its Users will: (a) use the Services for any unlawful purpose, or in any manner that would violate the rights of any third-party; (b) upload to, or distribute through, Hosted Services any Harmful Content; (c) upload to, or distribute through, Hosted Services any nonpublic personal information (NPI as defined by GLBA), protected health information (PHI as defined in HIPAA), or sensitive personal information such as social security numbers; (d) knowingly interfere with or disrupt Hosted Services, the data associated therewith or contained therein, or the networks connected thereto; or (e) attempt to gain unauthorized access to the Services or their related systems or networks. If Customer (or a User who is accessing the Services on Customer’s behalf) provides mobile application security assessment or analysis as a commercial product or service or regularly incorporates information from mobile application security assessments or analyses into its commercial products or services, Customer (or the User) shall not access the Services until Customer receives NowSecure’s express written approval.

3.4           Reasonable Technical Controls. NowSecure may implement reasonable technical controls and limits to protect the security and availability of the Services, including but not limited to API rate controls, user creation/approval controls, email validation, account security lockouts, bot prevention (e.g. captcha), and denial-of-service protections.

4.         OUR RESPONSIBILITIES.

4.1       Providing the Services. NowSecure will make the Services available to Customer in accordance with the Terms and any applicable Order Form. NowSecure may from time to time, and in its discretion, utilize its Affiliates or engage third-party contractors in connection with providing or maintaining the Services, provided that: (a) any such Affiliate or third-party contractor shall be bound by written confidentiality obligations no less restrictive than those contained in these Terms; and (b) NowSecure shall be directly liable to Customer, to the extent provided in these Terms, for any breach of these Terms caused by such Affiliate or third-party contractor.

4.2       Security Commitment. NowSecure will utilize appropriate technical, physical, and organizational security measures and safeguards in connection with the storage, transmission, handling, and processing of Customer Data via the Services, in order to protect Customer Data from unauthorized use, access, and disclosure. NowSecure will utilize: (a) adequate physical security of all premises in which Customer Data will be processed and/or stored by NowSecure; (b) reasonable precautions with respect to the employment of, and access given to, NowSecure personnel and third-party contractors engaged by NowSecure in connection with providing the Services, including assigning appropriate access privileges to individuals; (c) an appropriate network security program; (d) appropriate access controls and data integrity controls; (e) testing and auditing of all controls; and (f) appropriate corrective action and incident response plans.

4.3       Uptime Commitment. For paid Subscriptions, NowSecure will ensure Hosted Services are Available as set forth in Addendum A – Support and Service Level Agreement (“SSLA”), unless otherwise specified in the applicable Order Form. The SSLA is not applicable to Free/Trial Use Services, Beta Services, or Deployment Services.

4.4       Standard Support. For paid Subscriptions, NowSecure will provide Customer with its standard support for the Services as specified in the SSLA, unless otherwise specified in the applicable Order Form. Support for Free/Trial Use Services will be provided in NowSecure’s sole discretion.

4.5       Updates. NowSecure may Update the Services from time to time. The term “Update” means making modifications to any feature or functionality of the Services that are: (a) enhancements to the Services; (b) necessary for the stability or security of the Services; or (c) in the opinion of legal counsel, reasonably necessary in order for NowSecure to comply with applicable law or third-party restrictions. If an Update removes a material feature or functionality of the Service, NowSecure will use commercially reasonable efforts to inform Customer of the removal at least thirty (30) days prior to release of the Update, except in the event the Update is being made in connection with subsection (b) or (c) above, in which case NowSecure will notify Customer within a commercially reasonable period of time after release of the Update. If in Customer’s reasonable judgment an Update removes a material feature or function, which negatively impacts Customer’s benefit of using the Services, Customer may notify NowSecure of such negative impact within thirty (30) days after the release of the Update, and NowSecure shall cure the negative impact within forty-five (45) days. If after such cure period NowSecure has not provided a sufficient remedy, Customer may terminate the affected Subscription, without penalty, upon written notice. In such case, termination shall be without penalty and NowSecure shall refund the pro rata amount of any whole months of prepaid fees for unused Services. NowSecure’s foregoing duty to cure negative impacts of an Update shall not apply to functions that are wholly dependent on mobile platform components outside of NowSecure’s control.

4.6       Customer Data Export and Removal. NowSecure will provide access and functionality to export Customer Data from the Services in an industry-standard format throughout the applicable Subscription term and for thirty (30) days after termination. NowSecure will delete Customer Data (a) upon termination or expiration of all Services hereunder; (b) upon written request from Customer delivered via support request as defined in Addendum A; or (c) automatically within the Services when delete features are utilized by a User with appropriate permissions.

5.         CUSTOMER RESPONSIBILITIES.

5.1       Customer Software and Equipment. Customer is responsible for purchasing, installing, and maintaining all hardware, software, and communications equipment (except for Equipment and Software) identified in the applicable Documentation as the minimum necessary to access and use the Services, and for paying all third-party access charges (e.g., ISP, telecommunications, Integration Application fees) incurred while using the Services.

5.2       Replacement of Equipment. Customer is responsible for safeguarding the Equipment in its possession or control. If the Equipment is inoperable or malfunctioning upon delivery to Customer, NowSecure will replace such Equipment free of charge. However, if the Equipment is lost, stolen, damaged, or becomes inoperable while in Customer’s possession or control, Customer shall be responsible for all replacement costs, including shipping charges, customs taxes or duties, and all other related taxes.

5.3       Actions of Users. Customer is solely responsible for the actions of its Users in connection with their use of Customer’s Account, the Services, the Documentation, and the Equipment, and Customer will ensure that all of its Users abide by the Terms and all applicable laws, rules, and regulations.

5.4       Account Access. Customer is responsible for maintaining the security of its Account and each of its User’s Credentials, all Services ordered, accessed, or otherwise used in connection with its Account and its Users’ Credentials, and all actions taken in association therewith. Customer will not share its Account or its Users’ Credentials with any third-party, and Customer will promptly notify NowSecure if its Account or its Users’ Credentials have been compromised.

5.5       Data Authorization. Customer is solely responsible for ensuring it and its Users have all necessary rights, authorizations, and consents to use and share Customer Data as contemplated by these Terms.

5.6       Data Backup. NowSecure will implement reasonable measures to ensure data backup for the Hosted Services, in order to provide continuity of service in accordance with the SSLA (Addendum A). Notwithstanding the foregoing, Customer and its Users may modify, delete, or remove Customer Data stored in Customer’s Account using provided features and functions. Customer acknowledges and agrees that the Hosted Services do not contain an inherent archival backup (for example, to retrieve prior versions of modified, deleted, or removed Customer Data) and that Customer is responsible for making its own data backups for any archival purpose using the provided data APIs. NowSecure is not responsible for the modification, deletion, or removal of Customer Data by Customer or its Users.

6.         OWNERSHIP.

6.1       Ownership. As between NowSecure and Customer, NowSecure and its licensors own all rights, title, and interest in and to the Services, Hosted Services, Deployment Services, Software, Documentation, and Pre-Existing Content, including all related intellectual property rights, and Customer owns all rights, title, and interest in and to Customer Data. Customer shall own all Customer Reports; however, to the extent Customer Reports contain Pre-Existing Content, NowSecure grants Customer a worldwide, perpetual, irrevocable, non-exclusive license to have, use, reproduce, and distribute such Pre-Existing Content in conjunction with its use of Customer Reports. NowSecure reserves the right to retain and use System Data without restriction. No rights are granted by either party to the other except those expressly set forth herein.

6.2       Customer License to NowSecure. Customer grants NowSecure a limited, nonexclusive, nontransferable, worldwide license to host, copy, transmit, use, display, and/or process Customer Data for the duration of the Subscription period and any applicable retention period, solely for the purpose of providing the Services to Customer.

6.3       Feedback. Customer and its Users may provide NowSecure with ideas, opinions, recommendations, feedback, or advice in connection with Customer’s use of the Services, including Free/Trial Use Services (collectively “Feedback”). If Customer or its Users submit Feedback to NowSecure, Customer grants NowSecure an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display such Feedback (or any modification thereto), in whole or in part, in any format, medium, or application now known or later developed; and (b) use, and permit others to use, Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that NowSecure deems appropriate in its discretion (including, without limitation, incorporating Feedback, in whole or in part, into any technology, product, or service). The Feedback license shall not be construed as granting NowSecure any rights to Customer’s preexisting intellectual property.

7.         FEES AND PAYMENTS.

7.1       Fees. Customer agrees to pay all Fees specified in the applicable Order Form. Unless otherwise expressly set forth in the Terms or the applicable Order Form: (a) all fees and payment obligations are noncancelable and nonrefundable; (b) quantities purchased cannot be decreased during the Subscription term; and (c) Fees are due in advance for the Subscription term.

7.2       Invoicing and Payment. Customer shall provide complete and accurate billing and contact information to NowSecure and promptly notify NowSecure of any changes to such information (or notify Reseller, if applicable). NowSecure shall deliver a commercial invoice to Customer after acceptance of an Order Form, and unless otherwise stated in the applicable Order Form, Fees are due Net thirty (30) days from the date the invoice is received.

7.3       Taxes. Fees are stated exclusive of all applicable duties, tariffs, and taxes. Customer agrees to pay, in addition to the Fees, all applicable duties, tariffs, taxes, and similar government mandated charges which result from its purchase of Services, except taxes based on NowSecure’s own income. Each party will provide and make available to the other party any exemption certificates, treaty certification, or other exemption information reasonably requested by the other party.

7.4       Future Functionality. Customer agrees that its purchase of the Services is not contingent on the delivery of any future feature or functionality, or dependent on any representations or statements made by NowSecure or any other party regarding future features or functionality.

8.         FREE/TRIAL USE SERVICES & BETA SERVICES.

8.1       Free/Trial Use. NowSecure may, in its discretion, provide Customer or its Users with access to certain Services on a Free/Trial Use basis. If so, Customer and its Users may use such Services for its internal evaluation until the earlier to occur of: (a) the date specified in the applicable Order Form; (b) the start date of Customer’s paid Subscription for the Free/Trial Use Services; or (c) the end date identified in any notice from NowSecure terminating the Free/Trial Use period. If Customer ends a paid Subscription without notice to NowSecure, NowSecure may convert Customer to a Free/Trial Subscription. Additional terms and conditions may accompany the Free/Trial Use Services, and any such additional terms and conditions are hereby incorporated into these Terms. Any Customer Data, personalized configurations, or output generated by or as a result of using the Services during the Free/Trial Use period may be permanently lost unless Customer procures a paid Subscription for such Services prior to the end of the Free/Trial Use period.

8.2       Beta Services. NowSecure may, in its discretion, make available to Customer and its Users certain Beta Services. If so, Customer and its Users may use such Beta Services for internal evaluation. Customer understands and agrees that such Beta Services: (a) may be available for a temporary period and may be removed or modified at any time; (b) may not ultimately be incorporated into commercially available Services; and (c) may contain errors or undocumented functionality. Customer Data and configurations specifically related to a Beta Service may not be retained if the Beta Service is discontinued.

8.3       Disclaimer. ALL FREE/TRIAL USE AND BETA SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY AND ARE EXCLUDED FROM ANY REPRESENTATIONS OR WARRANTIES SET FORTH IN THESE TERMS.

9.         CONFIDENTIALITY.

9.1       Confidential Information. In connection the relationship and obligations created by these Terms, NowSecure and Customer may deliver to each other Confidential Information (the party disclosing such information or materials being the “Disclosing Party” and the party receiving such information or materials being the “Receiving Party”). “Confidential Information” means nonpublic information that Disclosing Party designates as being confidential or proprietary, or which under the circumstances surrounding disclosure reasonably ought to be treated as confidential. Confidential Information includes, without limitation, (a) information relating, in whole or in part, to released or unreleased Disclosing Party’s technical, financial, pricing, customer, client, member, personnel, regulatory, and/or other organization information in written, graphic, oral, visual or other tangible or intangible forms including, but not limited to, financial statements and other financial data, specifications, patent applications, records, data, computer programs, drawings, schematics, know-how, notes, models, reports, policies, processes, and samples; (b) proprietary or confidential material or trade secrets of Disclosing Party, Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party’s organization policies or practices, and information received or derived from third parties that Disclosing Party is obligated to treat as confidential; (c) the names, addresses, telephone numbers, e-mail addresses, assets, or other nonpublic personal information regarding the parties’ clients and consumers. Customer Confidential Information includes Customer Data, and NowSecure Confidential Information includes the Services, Documentation, Pre-Existing Content, and all Public Reports and pricing terms related thereto. Confidential Information excludes information that the Receiving Party can demonstrate, through written or other documentary records: (a) was rightfully in the Receiving Party’s possession without obligation of confidentiality prior to receipt from the Disclosing Party; (b) has become publicly known or is otherwise generally available to the public through no action or fault of the Receiving Party; (c) was rightfully furnished to the Receiving Party by a third-party without restriction on disclosure or use; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

9.2       Protection of Confidential Information. The Receiving Party will: (a) hold the Confidential Information of the Disclosing Party in trust and confidence and not disclose such Confidential Information to any third-party except as provided herein; (b) not use the Confidential Information of the Disclosing Party for any purpose except for the purposes described in the Terms; (c) use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than a reasonable degree of care; and (d) except as otherwise authorized by the Disclosing Party in writing, limit disclosure of the Disclosing Party’s Confidential Information to its Affiliates, financial and legal advisors, its employees or agents who have a need to know and who are bound, either in connection with their relationship, employment, or representation, by confidentiality obligations no less restrictive than the confidentiality obligations contained herein. Receiving Party accepts responsibility for the actions of its agents or employees to whom it has disclosed Confidential Information. Neither Customer nor its Users shall remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Services, the Documentation, or output generated thereby. Receiving Party shall promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the Disclosing Party in enforcing its rights.

9.3       Public Reports. Public Reports are security and vulnerability reports accessible via the Services for publicly available mobile applications which have been independently tested by NowSecure without use or inclusion of any Customer Data. Public Reports are Pre-Existing Content. For purposes of clarification, and without limiting the foregoing confidentiality obligations, Public Reports are strictly for Customer’s internal organization use only and may not be published, stored, or otherwise made available in any location where anyone other than Customer or its Users can access them, except as follows: Customer may perform limited sharing of Public Reports with an unaffiliated party only under duty of non-disclosure, and in direct performance of its regular organization functions. If Customer shares Public Reports, as provided above, Customer must retain any and all markings restricting use or dissemination on a Public Report so shared.

9.4       Compelled Disclosure. The Receiving Party may disclose Disclosing Party’s Confidential Information in response to a court order, or as otherwise required by law, provided that: (a) the Receiving Party gives the Disclosing Party prior notice of the required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or obtain a protective order prior to disclosure; and (b) the Receiving Party discloses only that portion of the Confidential Information that, in the opinion of its legal counsel, the Receiving Party is legally required to disclose.

9.5       Survival. Receiving Party’s obligations regarding Confidential Information will survive the expiration or termination of the Terms, and all obligations of confidentiality and non-disclosure shall continue for three (3) years after the expiration or termination of these Terms, except such obligations of confidentiality and non-disclosure will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable law.

10.       REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.

10.1     Mutual Representations. Each party represents and warrants to the other that: (a) it has all necessary right, power, and authority, and has taken all necessary action to enter into and perform its obligations under the Terms and to grant the rights granted to the other party herein; (b) it will abide by all laws, rules, and regulations applicable to its performance under the Terms; and (c) its execution and performance of the Terms will not violate or conflict with the rights of any third-party or with any confidentiality or other agreement to which it is a party or by which it is bound.

10.2     NowSecure Representations. NowSecure represents and warrants to Customer that: (a) the Services (except for Free/Trial Use and Beta Services) will function in all material respects in conformity with the applicable Documentation; and (b) the Services will not knowingly contain any Harmful Content. The warranties set forth herein shall not apply to any error, interruption, other non-conformity, or Harmful Content caused by: (i) Customer’s use of the Service not in conformity with the applicable Documentation; (ii) Customer’s or any third-party’s network, equipment, hardware, or software; (iii) Customer Data; or (iv) Customer’s breach of the Terms.

10.3     Customer Warranties. Customer represents and warrants to NowSecure that: (a) it owns, or has obtained from the owner of, all authorizations, consents, permissions, and licenses necessary for Customer and NowSecure to utilize Customer Data in connection with the Services, and for the Services to process and store Customer Data in the manner identified in the Documentation and these Terms; (b) Customer Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or any privacy or other rights (including contractual rights) of any third-party or violate any applicable law; and (c) Customer Data does not and will not contain any Harmful Content.

10.4     Disclaimers. UNLESS OTHERWISE EXPRESSLY SET FORTH HEREIN, CUSTOMER’S USE OF THE SERVICES WILL BE AT ITS OWN RISK AND ALL SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”, AND NOWSECURE AND ITS LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NOWSECURE MAKES NO WARRANTIES, CONDITIONS, OR REPRESENTATIONS ABOUT: (A) THE ABILITY OF THE SERVICES TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT; (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SERVICES (SPECIFICALLY INCLUDING ANY REPORT GENERATED OR OBTAINED THROUGH USE OF THE SERVICES); AND (C) THIRD-PARTY PRODUCTS, AND NOWSECURE ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH. THE REFERENCE TO, OR AVAILABILITY OF, THIRD-PARTY PRODUCTS IN CONNECTION WITH THE SERVICES DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH NOWSECURE WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT NOWSECURE EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S COMPLIANCE WITH ANY LAW, RULE, REGULATION, OR THIRD-PARTY CONTRACTUAL OBLIGATION APPLICABLE TO CUSTOMER OR ITS USERS USE OF THE SERVICES OR CUSTOMER DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY NOWSECURE OR ANY OF ITS EMPLOYEES WILL CREATE A WARRANTY, CONDITION, OR REPRESENTATION OF ANY KIND. THE FOREGOING DISCLAIMER WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS, OR WARRANTIES OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, NOWSECURE’S WARRANTIES, CONDITIONS, AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

10.5     High Risk Activities. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, THE SERVICES, AND ANY RESULTS OBTAINED FROM THE SERVICES, ARE NOT INTENDED FOR USE IN THE OPERATION OF, OR IN CONNECTION WITH THE OPERATION OF, NUCLEAR OR CHEMICAL PROCESSING FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES, OR OTHER EQUIPMENT OR SYSTEMS IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

11.       INDEMNIFICATION.

11.1     NowSecure’s Indemnification of Customer. With the exception of Free/Trial Use and Beta Services, NowSecure shall indemnify, defend, and hold Customer harmless against any losses, damages, or expenses, including attorneys’ fees and costs, incurred by Customer as a result of any suit, proceeding, claim, demand or other legal action (“Claim”) alleging that Customer’s authorized use of the Services infringes on a third-party’s intellectual property rights. NowSecure will not have any obligation to indemnify, defend, or hold Customer harmless where the Claim could have been avoided but for Customer’s: (a) access to or use of the Services in combination with any hardware, system, software, network, or other materials or services not provided or authorized in writing by NowSecure; (b) modification of the Services or modifications made on Customer’s behalf; (c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by NowSecure; or (d) breach of the Terms. If NowSecure receives information about an infringement claim related to the Services, NowSecure may in its discretion: (i) modify the Services so that they no longer infringe, but are substantially, functionally equivalent; (ii) obtain a license for Customer’s continued use of the affected Services; or (iii) terminate Customer’s Subscription for the affected Service upon thirty (30) days’ written notice with a refund of any unused, prepaid fees. NowSecure will not have any obligation to indemnify, defend, or hold Customer harmless for any alleged or actual infringement, or damages related thereto, resulting from Customer’s continued use of the affected Service after NowSecure’s written notice to Customer to cease use thereof in order to avoid further infringement.

11.     Customer’s Indemnification of NowSecure. To the fullest extent permitted by law, Customer and/or its Affiliates shall indemnify, defend, and hold NowSecure and its parents, subsidiaries, officers, employees, directors, agents, and representatives (“NowSecure Indemnified Parties”) harmless against any losses, damages, or expenses, including attorneys’ fees and costs, incurred by NowSecure Indemnified Parties as a result of any Claim alleging that Customer Data, NowSecure’s authorized use of Customer Data, or Customer’s use of the Service in breach of the Terms infringes on a third-party’s intellectual property or contractual rights. Customer shall not have any obligation to indemnify, defend, or hold NowSecure Indemnified Parties harmless where the Claim could have been avoided but for NowSecure’s modification of Customer Data in violation of these Terms.

11.3     Indemnification Requirements. The following requirements apply to any Claim under Sections 11.1 and 11.2: (a) the indemnified party shall provide prompt written notice to the indemnifying party of the Claim; (b) the indemnified party shall tender to the indemnifying party sole control of the defense and settlement negotiations related to the Claim; (c) the indemnified party shall reasonably assist (at indemnifying party’s expense) in the defense or settlement of the Claim; (d) the indemnified party shall avoid taking any action that would be prejudicial to the defense of the Claim; (e) the indemnified party agrees to take all reasonable steps to mitigate losses; (f) the indemnifying party may not settle any Claim in any manner that imposes any admission of guilt or liability on the indemnified party without the prior written consent of the indemnified party; and (g) the indemnified party may participate in the defense of the Claim, at its expense, with counsel of its choice.

12.       LIMITATION OF LIABILITY.

12.2     Limitations. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.4, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS, DAMAGE, COST, OR EXPENSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, OR LOSS OF BUSINESS OR OF REVENUES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT IT UNDERSTANDS THE LEGAL AND ECONOMIC RAMIFICATIONS OF THE FOREGOING LIMITATIONS, AND THAT THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH LIMITATIONS, THE TERMS, INCLUDING, WITHOUT LIMITATION, ANY ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. THE EXCLUSIONS AND LIMITATIONS IN SECTION 12 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THE TERMS.

12.3     Limitations Period. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED.

12.4     Exceptions. The exclusions and limitations set forth in this Section 12 shall not apply to claims or allegations arising from: (a) a party’s gross negligence or willful misconduct; (b) a party’s breach of its confidentiality obligations herein; (c) a party’s indemnification obligations herein; (d) Customer’s breach of Section 3.2 or 3.3; or (e) Customer’s failure to pay undisputed Fees. Some jurisdictions may not allow the exclusion or limitation of consequential, incidental, special, or other damages, so the above limitations or exclusions may not be allowed, and in such event, the liability of NowSecure and its licensors shall be limited to the fullest extent permitted by law in such Jurisdiction.

13.       TERM AND TERMINATION.

13.1     Term. The Terms are effective as of the date Customer accepts them pursuant to Section 1 and will continue to bind the parties until the earlier of: (a) termination by either party in accordance with this Section 13; or (b) twelve (12) months after termination or expiration of all Subscriptions (including Free/Trial Use). The term of the applicable Subscription shall be as specified in the relevant Order Form.

13.2     Termination for Cause. Either party may terminate the Terms, individual Order Forms, or individual Subscriptions immediately upon written notice to the other party if: (a) the other party commits any material breach of the Terms and fails to cure such breach within thirty (30) days after written notice thereof from the non-breaching party; or (b) 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, or otherwise becomes generally unable to pay its debts. In addition, Customer may terminate the Terms, individual Order Forms, or individual Subscriptions immediately upon notice to NowSecure as provided in the SSLA (Addendum A). If the Terms, individual Order Forms, or individual Subscriptions are terminated by Customer for cause under this Section 13.2, NowSecure agrees to refund Customer’s prepaid Fees covering whole months of the applicable Subscription period remaining after the effective date of termination. If the Terms, individual Order Forms, or individual Subscriptions are terminated by NowSecure for cause, Customer agrees to pay any unpaid Fees for the entire Subscription period for the terminated Services.

13.3     Termination for Convenience.  Upon thirty (30) days prior written notice, Customer may terminate the Terms, individual Order Forms, or individual Subscriptions at its convenience. Either party may terminate the Terms if there are no active Subscriptions upon thirty (30) days prior written notice. In no event will termination of the Terms under this Section 13.3 relieve Customer of its obligation to pay any Fees for Services it procured prior to such termination or entitle Customer to a refund for any Fees already paid by Customer for the Services.

13.4     Effect of Termination of Terms. If the Terms are terminated for any reason: (a) all Order Forms and Subscriptions will terminate; (b) all rights, licenses, consents, and authorizations granted by either party to the other will immediately cease; (c) NowSecure will disable Customer’s Account and its Users’ access to all Services; (d) Customer shall pay for all Subscriptions up to the effective date of termination, which in the case of annual Subscriptions or longer shall be the full amount, and any termination Fees if specified in the relevant Order Form (except where Customer is terminating the Terms for cause as provided in Section 13.2); (e) Customer and its Users will immediately cease all use of the Services; (f) Customer may export Customer Data and NowSecure will delete Customer Data in accordance with Section 4.6; and (g) for all other Confidential Information the Receiving Party will promptly destroy, or at the Disclosing Party’s request return, all Confidential Information of the Disclosing Party. Notwithstanding anything to the contrary in the foregoing, with respect to Confidential Information of the Disclosing Party that may reside in electronic form in the Receiving Party’s backups, archives, and disaster recovery systems, the Receiving Party may retain such Confidential Information for the period required by applicable law, or for the period that is consistent with the Receiving Party’s standard electronic records retention policies applicable to the media on which such Confidential Information is stored, whichever is longer. Upon expiration of the applicable period, the Receiving Party will erase, destroy, or overwrite the media containing the Disclosing Party’s Confidential Information. The confidentiality obligations contained in these Terms shall continue to bind the Receiving Party until such time as the Disclosing Party’s Confidential Information is returned, erased, destroyed, or overwritten.

13.5     Effect of Termination of Individual Order Forms or Subscriptions. In the event of expiration or termination of individual Order Forms or Subscriptions for any reason, upon the effective date of such expiration or termination: (a) all rights, licenses, consents, and authorizations granted by either party to the other under the affected Order Forms or Subscriptions will cease immediately; (b) NowSecure will disable Customer’s and its Users’ access to all affected Services; (c) Customer shall pay for all Subscriptions up to the effective date of termination, which in the case of annual Subscriptions shall be the full amount, and any termination Fees if specified in the relevant Order Form (except where Customer is terminating the Terms for cause as provided in Section 13.2); and (d) Customer and its Users will immediately cease all use of the affected Services.

13.6     Suspension of Access. NowSecure reserves the right to suspend Customer’s and its Users’ access to Services in the event of a breach of Section 3 by Customer or its Users, or if Customer fails to pay undisputed Fees in accordance with these Terms within sixty (60) days of the applicable due date. If NowSecure suspends Customer’s access to Services, it will notify Customer in writing, and shall restore access when the breach is cured (if capable of cure) and/or undisputed Fees are paid in full, as applicable.

14.       DATA PRIVACY LAWS.

Customer and NowSecure agree to comply with all applicable data protection and privacy laws, including but not limited to California Consumer Privacy Act (“CCPA”) and General Data Protection Regulation (“GDPR”), while operating under these Terms. Customer shall ensure that any and all information or data, including without limitation, personal information and data, used by Customer in connection with the Services is collected, processed, transferred, and used in full compliance with applicable data protection laws and that it has all obtained all necessary authorizations and consents from any data subjects to process personal information and data. Customer shall adopt and maintain appropriate organizational, technical, and security measures prior to any such collection, processing, or transfer in order to protect against unauthorized access to or use of personal information and data. If required by applicable data protection and privacy laws, the parties will enter into standard contractual clauses under GDPR for the transfer of any Customer Data outside of the European Union.

The Services may interoperate with Integration Applications. Customer acknowledges and agrees that if it utilizes Integration Applications, it is solely responsible for obtaining all necessary use rights from the applicable third-party, and NowSecure shall have no obligation to Customer in connection with such Integration Applications (including without limitation any support obligation).

16        GENERAL PROVISIONS.

16.1     Notices. Except as otherwise specified by the Terms, all notices, permissions, and approvals shall be in writing and shall be deemed to have been given upon: (a) the second organization day after proper mailing; or (b) the first organization day after successfully sending by email; provided email alone shall not be sufficient to establish notice of an indemnification Claim. For notices sent by NowSecure to Customer, such notices will be sent to the applicable address or email address identified in Customer’s Account, and for notices by Customer to NowSecure, such notices shall be sent to the applicable address or email address identified below:

          Attention: Legal Department
          NowSecure, Inc.
          141 W. Jackson Boulevard, Suite 2100
          Chicago, IL 60604
        [email protected]

 “Available” means all material functions of the Services are operational.

 “Business Hours” means NowSecure’s standard organization operating hours, Monday through Friday (excluding U.S. holidays) from 8:00 a.m. to 6:00 p.m. U.S. Central Time.
 “Critical Issues” means major issues preventing all or nearly all effective use of the affected Service, or high security risk reports. 
 “Downtime” means a period when the Hosted Services are not Available, outside of Scheduled Maintenance Periods, for reasons other than Exclusions.

 “Exclusions” means any period when the Hosted Services are not available: (a) caused by factors outside of NowSecure’s reasonable control, including any Force Majeure Event or network outage or disruption outside the data center hosting the Hosted Services; (b) that results from any action or inaction by Customer or any third-party acting on Customer’s behalf; (c) caused by Customer’s software or hardware, or third-party software or hardware not supplied by NowSecure; or (d) arising from NowSecure’s suspension or termination of Customer’s Subscription in accordance with the Terms.

 “Product Support” means written or verbal information provided for user assistance, troubleshooting, and advice regarding the access to and use of the Services.

 “Regular Issues” means common problems, user questions, or less-serious bugs.

 “Scheduled Maintenance” means limited pre-announced time periods when Services have reduced functionality or become unavailable for purposes of scheduled maintenance.

 “Serious Issues” means significant issues preventing effective use of one or more Service features, or medium security risk reports.

 “Uptime Percentage” means the proportion of time during each calendar month when the Services are Available, as a percentage (Available minutes/total minutes), where total minutes in the month excludes Scheduled Maintenance and other Exclusions (both defined herein).

2.              STANDARD BUSINESS PRODUCT SUPPORT.

2.1           Product Support. NowSecure will provide Product Support to the Customer and its Users, via website, telephone, email, and other methods made available by NowSecure. NowSecure may limit the number of Users eligible for Product Support on certain Services, but at least two (2) will be allowed for all Subscriptions.

2.2           Support Contacts. Specific support phone numbers and email contacts (“Support Contacts”) are provided at https://support.nowsecure.com, and Customer may submit a support request to the Support Contacts on a 24 hour, 7 days a week over 365 days a year (24/7/365) basis.

2.3           Response Time. For support requests received during Business Hours, NowSecure will respond to Customer’s support requests as follows:

●      Within one (1) hour for Critical Issues;

●      Within two (2) hours for Serious Issues; and

●      Within one (1) organization day for Regular Issues.

2.5           Case Tracking and Resolution. All support requests are assigned a case ID and tracked through resolution. NowSecure will initiate remediation promptly for Critical and Serious Issues and work until such issues are resolved or an acceptable workaround provided. Any Critical Issue not resolved or remediated through reasonable workaround within two (2) organization hours of NowSecure’s receipt of Customer’s support request will be considered Downtime under the Uptime Commitment, counted from the time NowSecure receives Customer’s initial request.

2.6           Escalation. Customer may escalate any reported Critical or Serious Issues to NowSecure’s VP or Director of Customer Success.

2.7           In-app Live Help.  NowSecure may provide an integrated, real-time chat-based help within the Services (“Live Help”) available at certain times, whereby NowSecure personnel directly communicate with a User when such Live Help is initiated by the User. For Live Help sessions, no case ID will be tracked unless specifically requested by the User. NowSecure shall have sole discretion in establishing availability of Live Help.

2.8           Individual App Test Standard. Certain Services enable automated testing of mobile apps on mobile platform versions specified in the Documentation. For technical reasons (including development implementations, test configuration, app security protections, and compatibility issues) a specific app may not complete an automated test cycle, even when such app has completed test(s) in the past. In the case that an app test cycle does not complete, NowSecure will attempt to troubleshoot the cause and assist Customer in any required changes to enable automated test completion. If an app cannot complete automated testing for any reason, NowSecure may, at its option, complete comparable testing with human intervention, or refund Fees related to the affected app. Incompletion of specific app cycle(s) shall not be considered Downtime when the Hosted Services are Available.

3.         SERVICE LEVEL STANDARDS.

3.1       Uptime Commitment. NowSecure will make the Hosted Services Available with a minimum of at least 99.5% Uptime Percentage, in each monthly period. In the event NowSecure does not meet the required Uptime Percentage during any calendar month, Customer will be eligible to receive a Service Credit as described below. For clarity, this uptime commitment applies only to annual Subscription based Hosted Services.

3.2       Scheduled Maintenance. Scheduled Maintenance will be performed during non-US organization hours, and unavailability during Scheduled Maintenance will not exceed four (4) hours per month. NowSecure will provide notice to Customer through the NowSecure status portal at least twenty-four (24) hours in advance for Scheduled Maintenance with expected duration of less than one (1) hour, and at least five (5) days in advance for any Scheduled Maintenance which will require suspension of all or the majority of the Services for a period of more than one (1) hour.

3.3       Service Credits. Service credits will be provided, as specified in the following table, for any month NowSecure fails to meet the required Uptime Percentage, subject to the service credit procedures and requirements. Credit days will be applied to Customer’s Subscription by extending the duration of Customer’s Subscription by the specified number of credit days.