Service provider - terms of use

PLEASE READ CAREFULLY THESE TERMS OF USE ("AGREEMENT"). THIS AGREEMENT GOVERNS YOUR ONGOING USE OF THE SERVICES, UNLESS YOU AND SERVICE PROVIDER HAVE SIGNED A SEPARATE AGREEMENT REGARDING USE OF THE SERVICES.

By using the Services, you are indicating that You have read, understand and agree to be bound by the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the terms "You" or "Your" shall refer to such entity and its Affiliates. If You do not agree to be bound by the terms of this Agreement, then You have no right to use the Services.


  • 1. DEFINITIONS

    "Affiliate"
    means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
    "Benchmark Data"
    means certain technical data generated by Your use of the Services, as further described in the User Guide.
    "Order Form"
    means Our standard ordering document that will be used for the purchase of Services.
    "Purchased Services"
    means Services that You or Your Affiliates purchase under an Order Form.
    "Services"
    means the online, Web-based applications and platforms provided by Us via http://nextuser.com and/or other affiliated websites, including any updates, enhancements, new features to such applications and platforms.
    "User Guide"
    means the online user guide for the Services, accessible online via the Knowledge Base or Help menu within the Services (www.devcenter.nextuser.com), as updated from time to time.
    "Users"
    means employees and third parties who provide network security-related services to You and, as to both employees and any such third parties, who have been authorized by You to use the Services, for whom subscriptions to the Services have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request).
    "We", "Us" or "Our"
    means Service Provider, Inc. ("Service Provider").
    "You" or "Your"
    means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
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  • 2. PURCHASED SERVICES

    2.1. Provision of Purchased Services.
    We will make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term specified therein. If You submit an order for Services using an order form other than Our Order Form, any terms or conditions in Your order form that are inconsistent with or in addition to the terms and conditions of this Agreement or Our Order Form are hereby rejected and will be deemed null and of no effect, unless We expressly agreed to such terms or conditions in writing. You agree that Your purchase of the Purchased Services is neither contingent upon the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
    2.2. User Subscriptions.
    Refers to Your Domain name or names identified in the Order Form
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  • 3. USE OF THE SERVICES

    3.1. Our Responsibilities.
    We shall: (i) provide to You basic support for the Purchased Services (defined in Section 4 below) at no additional charge, and/or upgraded support pursuant to the terms of an Order Form if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday).
    3.2. Your Responsibilities.
    You acknowledge and agree that the Services are for Your internal business purposes only. Except as expressly provided herein or as necessary for Your permitted use of the Services, You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any software, products, services, data or information (including without limitation any Benchmark Data) obtained from or generated by the Services. You shall (i) be responsible for Your and Your Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of all electronic data, communication or information submitted by You in connection with the Services ("Your Data") and for the means by which You acquire Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Us promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with the User Guide and applicable law and government regulations.
    3.3. Responsibility for Your Data.
    In the event of any loss or corruption of any of Your Data that is stored on or processed by the Services, We shall use our commercially reasonable efforts to restore the lost or corrupted Your Data from the latest backup of such Your Data that We maintain in accordance with our standard archival procedures, as described in User Guide. YOU ACKNOWLEDGE AND AGREE THAT OUR EFFORTS TO RESTORE LOST OR CORRUPTED YOUR DATA PURSUANT TO THIS SECTION 3.3 SHALL CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR SOLE LIABILITY IN THE EVENT OF ANY LOSS OR CORRUPTION OF YOUR DATA.
    3.4. Restrictions.
    You shall not: (i) make the Services available to anyone other than Users, (ii) sell, resell, rent, lease or create derivate works based on the Services; (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets, database or otherwise for Your own internal business purposes; (iv) reverse engineer the Services; (v) use the 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; (vi) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (viii) attempt to gain unauthorized access to the Services or their related systems or networks. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. . In connection with its use of the Services, You must comply at all times with the Amazon Web Services, Inc. Acceptable Use Policy ("AUP"), available at http://aws.amazon.com/aup/. We may suspend Your access to the Services in the event of a breach of the AUP.
    3.5. Usage Limitations.
    The Services may be subject to other limitations, such as, for example, limits on disk storage space or time range of historical data, on the number of calls or events that You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
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  • 4. FEES AND PAYMENT FOR PURCHASED SERVICES

    4.1. Fees.
    You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form: (i) fees are quoted and payable in United States dollars; (ii) fees are based on services purchased and not actual usage; (iii) payment obligations are non-cancelable and fees paid are non-refundable.
    4.2. Invoicing and Payment.
    You will provide Us with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
    4.3. Overdue Charges.
    If payment of any invoices or any other fees or charges is not received from You by the due date, then at Our discretion: (i) such payment, fees or charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the due date until the date payment is actually received; and/or (ii) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2.
    4.4. Suspension of Service and Acceleration.
    If any amount owed by You under this Agreement or any other agreement for Our services is 15 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your payment obligations so that they become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
    4.5. Payment Disputes.
    We shall not exercise Our rights under Section 4.3 or Section 4.4 if the applicable payment, fees or charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
    4.6. Taxes.
    Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
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  • 5. PROPRIETARY RIGHTS

    5.1. Ownership of Service.
    Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including any and all Benchmark Data, and all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
    5,2. Ownership of Your Data.
    As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
    5.3. Suggestions.
    You grant Us a royalty-free, fully paid-up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the Services.
    5.4. Federal Government End Use Provisions.
    If We provide the Services to any unit or agency of the U.S. Government, then, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), the U.S. Government's rights in the Services will be limited to those rights customarily provided to the public, as defined in this Agreement.
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  • 6. CONFIDENTIALITY

    6.1. Definition of Confidential Information.
    As used herein, "Confidential Information" means all confidential information disclosed by You or Us ("Disclosing Party") to the other ("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. Your Confidential Information includes, without limitation, Your Data. Our Confidential Information includes, without limitation, the Services, including the Benchmark Data. The Confidential Information of both You and Us includes, without limitation, the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either You or Us, as applicable. However, Confidential Information shall 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 by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party.
    6.2. Protection of Confidential Information.
    Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. You agree to keep all log-in identifications and passwords confidential and not to transfer or disclose them to other individuals or third parties. You shall bear the responsibility for breaches of this Section by any of Your employees, contractors or agents irrespective of whether the breach occurs during or after the period of the employment, agency or contractor relationship.
    6.3. Protection of Your Data.
    We shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (i) modify Your Data, (ii) disclose Your Data except as compelled by law in accordance with Section 6.4 or as expressly permitted in writing by You; or (iii) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
    6.4. Compelled Disclosure.
    The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so; provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
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  • 7. WARRANTIES AND DISCLAIMERS

    7.1. Our Warranties.
    We warrant that the Services shall operate in all material respects in accordance with the User Guide. As Your sole and exclusive remedy and Our entire liability for any breach of the foregoing warranty, We will, at our sole option and expense, modify the Services so that they conform to foregoing warranty or, if We are unable to modify the Services to so conform, refund to You the fees paid for the non-conforming Services. We shall not be responsible to the extent a failure of the Services to operate as warranted is caused by or results from: (i) modification of the Services by anyone other than Us or Our designee; (ii) combination, operation or use of the Services with Your or a third party's applications, software or systems, unless the foregoing were furnished by Us; (iii) abuse, willful misconduct or negligence by anyone other than Us or Our designee; or (iv) use of the Services other than in accordance with the terms of this Agreement and/or the User Guide.
    7.2. Disclaimers.
    EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES OR THE SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
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  • 8. MUTUAL INDEMNIFICATION

    8.1. Indemnification by Us.
    We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided that You: (i) promptly give Us written notice of the Claim; (ii) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (iii) provide Us with all reasonable assistance, at Our expense. We shall have no obligation to defend or indemnify You to the extent that a Claim is based on: (a) modification of the Services by anyone other than Us or Our designee; (b) combination, operation or use of the Services with Your or a third party's applications, software or systems, unless the foregoing were furnished by Us; or (c) use of the Services other than in accordance with the terms of this Agreement and/or the User Guide.
    8.2. Indemnification by You.
    You shall defend Us against any Claim made or brought against Us by a third party in connection with Your Data or Your use of the Services, including, but not limited to, allegations that Your Data or Your use of the Services breaches this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates any privacy rights or applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such Claim; provided that We: (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide You with all reasonable assistance, at Your expense.
    8.3. Exclusive Remedy.
    This Section 8 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.
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  • 9. LIMITATION OF LIABILITY

    NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE SERVICES OR THE SOFTWARE INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY LOSS OF DATA, REVENUE, PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES, OR FOR THE LOSS OF USE OF ANY SERVICES OR SOFTWARE, OR FOR ANY INTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY YOU IN THE TWELVE-MONTH PERIOD PRECEEDING THE DATE A CLAIM OR ACTION FOR LIABILITY ARISES HEREUNDER. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

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  • 10. TERM AND TERMINATION

    10.1. Term of Agreement.
    This Agreement commences on the date that you first accept its terms (in the manner described herein) and, unless terminated earlier in accordance with its terms, continues until all User subscriptions granted in accordance with this Agreement have expired or have been terminated.
    10.2. Term of Purchased User Subscriptions.
    User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either You or We provide the other of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any such renewal subscription term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior subscription term, in which case the pricing increase shall be effective upon renewal and thereafter.
    10.3. Termination for Cause.
    Either You or We may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days following notice thereof from the non-breaching party.
    10.4. Payment upon Termination.
    Upon any termination by You for cause, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Us for cause, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
    10.5. Return of Your Data.
    Upon termination of this Agreement for any reason, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data stored in the Services or otherwise in Our possession or under Our control. Nothing in this Agreement will be deemed to require Us to return or destroy any Benchmark Data in Our possession or control following the termination of this Agreement.
    10.6. Surviving Provisions .
    Sections 4, 5, 6, 7.2, 8, 9, 10.4, 10.5, 10.6 and 11 shall survive any termination or expiration of this Agreement.
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  • 11. GENERAL TERMS

    11.1. Assignment.
    You may not assign or transfer this Agreement, in whole or in part, without Our prior written consent, and any attempted assignment or transfer, without such consent, shall be void. We may assign or transfer this Agreement, at any time, in Our sole discretion. Subject to the foregoing, this Agreement shall be binding upon and shall benefit the successors and permitted assigns of the parties.
    11.2. Governing Law.
    This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of laws rule or provision that would result in the application of the substantive law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The exclusive jurisdiction and venue for any action, suit or other proceeding, arising under this Agreement or the transactions contemplated hereby shall be the federal and state courts located in the State of California, and both parties hereby consent to such jurisdiction and venue for such purpose.
    11.3. Notices.
    All notices and other communications hereunder shall be in writing, and shall be deemed to have been duly given: (i) if delivered personally, (ii) if mailed by postage prepaid, certified mail, return receipt requested, (iii) if sent by recognized overnight courier (having package tracking) with next day delivery instructions, (iv) if emailed, in each case addressed as indicated below or otherwise by You to Us or to such other address as to which such party shall have notified the other in accordance with this Section 8.3.
    11.4. Compliance with Laws.
    Each party shall comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, the export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
    11.5. Further Assurances.
    Each party covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, it will execute and deliver any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate the purposes of this Agreement.
    11.6. Independent Contractors.
    Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
    11.7. No Third Party Beneficiaries.
    This Agreement is for the mutual and exclusive benefit of the parties hereto and shall not be deemed to be for the direct or indirect benefit of any third parties.
    11.8. No Waiver; Non-exclusive Remedies.
    The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except as expressly stated in this Agreement, the exercise by either party of any remedy under this Agreement will not be exclusive and will not prejudice any other remedies to which it may be entitled under this Agreement or at law or in equity.
    11.9. Severability.
    If any provision of this Agreement is found invalid or unenforceable, that provision will be replaced with a valid and enforceable clause intended to effect the parties' original intent to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
    11.10. Force Majeure.
    Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder due to events beyond its reasonable control, including without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
    11.11. Entire Agreement.
    This Agreement (including all attachments hereto and all Order Forms) constitutes the entire and exclusive agreement between the parties with respect to its subject matter and supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter, unless You and We have executed a separate agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by a duly authorized representative of each party. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.
    11.12. Construction.
    The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Titles and headings of the sections and subsections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement.
    11.13. Contact.
    Any notice that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to support@NextUser.com when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to:
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