1. The type of information we collect
2. How NEDGE collects Your information, including tracking and cookies
3. How NEDGE uses Your personal information
4. How You can correct or update the information NEDGE has
5. Consent to Commercial Electronic Messages
6. Rights to Object or Restrict Processing or Personal Information
7. Right to be informed of the appropriate safeguards where Personal Information is transferred to a third country or to an international organization
8. Who We May Share Information With
9. How We Handle “Do Not Track” Requests
10. Linked Sites and Services
11. Data security
12. Retention of Your Information
13. Notice of privacy rights to California residents
14. Notice of privacy rights to residents of the European Union Area
15. How to contact us
1. The type of information we collect. NEDGE may collect information that You provide to NEDGE in connection with Your use of NEDGE’s website, when You make changes to Your user profile information, or when You send messages, or other information to using a forum that NEDGE may host. In addition, NEDGE may receive information about You from NEDGE’s customers (“Submitted Information”) as discussed below.
This information may include Your first and last name, Your address, email address, telephone number, Your location, and any additional information You provide to NEDGE during the account registration process or via the Service.
NEDGE may also collect certain technical information about Your use of the Service. This technical information may include technical information about Your device(s), browser type and version, geo-location information, computer and connection information, statistics on page views, traffic to and from the Service, ad data, Wi-Fi connection information, internet protocol (“IP”) address, and standard web log information.
Additionally, when expressing an interest in obtaining additional information about the Services or registering to use the Services, we require You to provide us with personal contact information, such as Your name, company name, address, phone number, and email address (“Required Information”). Although we use third party service providers to process payments, when purchasing access to the Services, we may require You to provide our payment processing service providers with financial and billing information, such as billing name and address and the number of employees within Your company that will be using the Services (“Financial Information”). We may also ask You to provide additional information, such as company annual revenues, number of employees, or industry (“Optional Information”). Required Contact Information, Billing Information, and Optional Information about Customers are referred to collectively as “Customer Data.”
2. How NEDGE Collects Your Information; Tracking and Cookies. When You register with NEDGE, we may ask You to provide us with certain information in order to create Your account, and to provide You with our Services. This information is collected by us when You fill out forms that may be provided to You through the Services.
If Cookies are used, they may be used to collect information about You and Your use of the Service, such as Your browser type, preferences, data relating to content that has been displayed to You or that You have clicked on, and the date and time of Your use. Cookies may also be used in order to further features and processes on the Service, provide authentication and security for Your transactions using the Service, store Your preferences, facilitate relevant advertising, and help us learn more about how users engage with the Service.
We sometimes use service providers to help us provide certain products and services or to integrate other features. These third-party providers may collect information when You view or use them, including information about You and Your device or browser. They may do these using Cookies or similar technologies. These third-party providers also may use these technologies to help share information with us, like how You use their website or application. To learn more about the information they collect or receive, review their privacy policies.
As part of using our Services, NEDGE’s Customers may submit to NEDGE electronic data or information (“Submitted Data”) that constitutes personal information of other individuals. Such data may include an individual’s name, email address, phone number or any other data that the Customer chooses to submit to us. NEDGE generally has no direct relationship with the individuals to whom Submitted Data may pertain. NEDGE uses Submitted Data solely on behalf of our Customers and any uses of Customer Data by NEDGE are done so pursuant to a separate agreement in place between NEDGE and the applicable Customer.
3. How NEDGE Uses Your Information. NEDGE may use Your information to:
• Provide access to the Services to communicate with You
• Personalize, customize, measure, and improve NEDGE’s products, services, content, and advertising
• Prevent, detect, and investigate potentially prohibited or illegal activities or a breach of the applicable agreement(s) between You and NEDGE
• Analyze the accuracy, effectiveness, usability, or popularity of the Services
• Generate and review reports and data about NEDGE’s user base and Services usage patterns
• Compile aggregate data for internal and external business purposes
• Resolve disputes and troubleshoot problems; and
• Contact You with information, including promotional, marketing, and advertising information and recommendations that NEDGE believes may be of interest to You.
Consistent with applicable laws, including United States CAN-SPAM laws, if You do not wish to receive commercial emails, You may unsubscribe following the instructions on any email. We may still send You administrative notices, however.
We endeavor to protect the privacy of Your account and other Personal Information we hold in our records, but unfortunately, we cannot guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time. In particular, You acknowledge that NEDGE is not responsible for any loss of any passwords or login information which You receive for access to NEDGE Services which results from Your failure to
4. Correcting and Updating Your Information. Customers may update or change their account information through their account settings accessible using the Customer account page included in the Service. Access to Your NEDGE account page will require Your Services username and password. To update Your Financial Information or to delete Your account information, please email email@example.com.
You can access or change Your personal profile and contact information or delete Your account through Your NEDGE personal settings page. If You choose to delete or deactivate Your account, You can no longer retrieve Your content or reactivate Your account.
You have the right to request access to any Personal Information which NEDGE may have about You by contacting firstname.lastname@example.org. You may also ask that we transfer the Personal Information to a third party, which we will do if technically feasible.
You also have the right to review, add and update Your Personal Information. You may also request the deletion of Your Personal Information where:
• the personal information is no longer necessary in relation to the purposes for which it was collected or otherwise processed,
• You withdraw consent to NEDGE’s possession of the information on which the processing is based and where there is no other legal ground for NEDGE’s retention of the information,
• You object to NEDGE’s possession of the information and there is no overriding legitimate basis for the retention,
• the personal information has been unlawfully obtained or processed, or
• the personal information has to be erased for compliance with a legal obligation in the European Union or other law to which NEDGE is subject.
We may use any aggregated data derived from or incorporating Your Personal Information after You update or delete it, but not in a manner that would identify You personally.
If Your individual personal information has been submitted to us by a Customer as Submitted Data and You wish to exercise any rights You may have to access, correct, amend, or delete such data, please first inquire with the Customer (or his/her organization) directly.
5. Consent to Commercial Electronic Messages. If You provide us with an email address, You expressly consent to receiving Commercial Electronic Messages from NEDGE about Your use of the Website, the NEDGE Services and our Products. If You have any questions about NEDGE’s Commercial Electronic Messages, You can contact NEDGE at:
NEDGE Computing Corp., 7321 Gateway Ct, Manassas, VA 20109, Attn: Legal, or by emailing email@example.com
6. Rights to Object or Restrict Processing or Personal Information. If NEDGE has Your Personal Information as a result of Your relationship with one of NEDGE’s customers, You should first contact that customer before contacting NEDGE. You may, however, at any time revoke Your consent to the collection, processing and use of Your Personal Information by emailing firstname.lastname@example.org. Upon receipt of Your request, NEDGE will delete Your personal data provided NEDGE may retain any data which is required for billing and accounting purposes or which is subject to legal retention requirements. In addition, if You discover any errors in data, You may contact us by emailing email@example.com and we will correct it. You can always opt not to disclose information to us, but keep in mind some information may be needed to take advantage of some of our special features or may be required by Your relationship with one of NEDGE’s customers.
7. Right to be informed of the appropriate safeguards where Personal Information is transferred to a third country or to an international organization.
NEDGE enters into agreements with its customers regarding the safeguards that have been put in place to protect Your Personal Information for transfer outside of the European Economic Area. For transfers to countries without an adequacy decision by the European Commission, NEDGE puts appropriate safeguards through contractual obligations.
8. Who We May Share Information With. NEDGE may disclose the information we collect from You to the following third parties:
Users of the Service; Public Information. When You share information with us via the Service, NEDGE may share Your information to other users, in accordance with the privacy settings You have chosen for Your account or that are applicable to that information. To the extent You share any information to a public audience or via a publicly accessible portion of the Service such as an online customer community or forum, that information may be available to anyone who has access to that customer community or forum.
NEDGE’s Service Providers. NEDGE may share Your information with third-party contractors, agents, collaborators, or service providers who provide certain services to NEDGE or on NEDGE’s behalf, such as operating and supporting the Service.
Companies that Acquire NEDGE’s Business or Assets. If NEDGE becomes involved in a merger, acquisition, sale of assets, securities offering, bankruptcy, reorganization, or dissolution or if the ownership of all or substantially all of NEDGE’s business relating to the Service otherwise changes, NEDGE may provide Your information to a third party or parties in connection with the applicable transaction.
NEDGE’s Affiliates. NEDGE may share some or all of Your information with NEDGE’s parent company, subsidiaries and corporate affiliates, joint ventures or other companies under common control with NEDGE.
NEDGE Customers. If NEDGE has received Your information as part of Submitted Data, NEDGE may share that information, or any modifications or revisions to that information with that Customer.
Aggregate Information. NEDGE may share information relating to our visitors and users with affiliated or unaffiliated third parties on an aggregate basis, however this information will not identify You personally.
Legal Requirements. NEDGE may share Your information with law enforcement, governmental agencies, or authorized third parties, in response to a request relating to a criminal investigation or alleged illegal activity or any other activity that may expose NEDGE, You, or any other NEDGE user to legal liability, or to protect NEDGE’s rights or property, or during emergencies when safety is at risk. NEDGE may also share Your information in response to court orders, subpoenas, or other legal or regulatory requests, and NEDGE may provide access to Your information to NEDGE’s legal counsel and other consultants in connection with actual or potential litigation.
10. Linked Sites and Services. NEDGE’s website or mobile application may, from time to time, contain links to and from the websites of our customers, partner networks, advertisers and affiliates. If You follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for these policies. Please check these policies before You submit any personal data to these websites.
11. Data Security. NEDGE takes reasonable measures to protect the information You provide to NEDGE or submit through the Service against misuse, loss, theft, unauthorized use, disclosure, or modification. Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect Your personal data, we cannot guarantee the security of Your data transmitted to our site; any transmission is at Your own risk and Your information may be disclosed to third parties in unforeseeable situations or situations that are not preventable even when commercially reasonably protections are employed, such as in the case that NEDGE or if the Service are subject to a hacking or other attack. Once we have received Your information, we will use strict procedures and security features to try to prevent unauthorized access.
13. Notice of Privacy Rights to California Residents. Section 1798.83 of the California Civil Code permits California residents to request from a business, with whom the California resident has an established business relationship, information related to the personal information disclosed by NEDGE to third parties for direct marketing purposes and the names and addresses of the third parties with whom the business has shared such information during the immediately preceding calendar year. You may make one request each year by emailing NEDGE at firstname.lastname@example.org.
14. Notice of Privacy Rights to Residents of the European Economic Area. You have the right to ask us not to process Your personal data for marketing purposes. We will usually inform You (before collecting Your data) if we intend to use Your data for such purposes or if we intend to disclose Your information to any third party for such purposes. You can exercise Your right to prevent such processing by checking certain boxes on the forms we use to collect Your data. You can also exercise the right at any time by contacting us at email@example.com.
Terms of Service
1.1. License. During the Term (as defined below) specified on an Order Form issued by NEDGE or NEDGE’s authorized reseller, NEDGE grants to the Customer identified on the Order Form a non-exclusive, non-transferable, non-sublicensable subscription license to use the NEDGE Service (as defined below) for Customer’s internal business purposes, in accordance with the end user or technical documentation provided by NEDGE to Customer (the “Documentation”) for the number of instances under management set forth in the Order Form (the “Scope”). “NEDGE Service” shall mean: (a) the NEDGE cloud solution known as Nedge Node as a service solution, which is licensed to Customer under the NEDGE Maintenance and Support agreement, as referenced in the Order Form, (b) the software solution underlying and contained in the Services; (c) any Documentation, and (d) any updates, upgrades, and/or modifications of the forgoing which NEDGE provides to Customer.
1.2. Restrictions. Except as expressly authorized in this Agreement, Customer shall not, and shall not authorize any third party to: (a) sublicense, transfer, loan, distribute, use or duplicate the NEDGE Service, or any portion thereof, ; (b) use the NEDGE Service by, or for the benefit of any third party; (c) modify, translate, or prepare derivative works based upon the NEDGE Service; (d) reverse-compile or decompile, disassemble or otherwise reverse engineer the NEDGE Service, except to the extent expressly required to be permitted by applicable law; (e) alter, remove, or obscure any copyright, trademark, or other proprietary notices on or in the NEDGE Service; (f) use the NEDGE Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; and/or (g) use the NEDGE Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Customer shall make any disclosures and obtain any consents as required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer data by the NEDGE Service. Except for the license expressly granted by NEDGE to Customer under this Agreement, NEDGE and its licensors reserve all right, title and interests in and to the NEDGE Service and any derivative works derived therefrom, and all intellectual property rights therein.
1.3. User Accounts. Customer is responsible for maintaining and updating its account information to ensure it is accurate and complete. Customer is responsible for all activities conducted under its user logins and for its users’ compliance with this Agreement, and with all applicable laws and regulations. Unauthorized use, resale or commercial exploitation of the NEDGE Services in any way is expressly prohibited. Customer will be liable for any breach of this Agreement by any of its users. In addition to its other remedies hereunder, NEDGE reserves the right upon notice to Customer to terminate any user’s right to access the NEDGE Service if such user has violated any of the restrictions contained in this Agreement.
2. PROFESSIONAL SERVICES. If the parties agree NEDGE will provide professional services related to the NEDGE Service, including without limitation, training or implementation services (“Professional Services”) as set forth on an Order Form, NEDGE will provide those Professional Services in accordance with a statement of work to be agreed between the Parties for such Professional Services (“SOW”). NEDGE may need to rely on Customer for access to certain customer hardware, software, systems, data and personnel to provide the Professional Services. NEDGE’s responsibility to provide the Professional Services will be adjusted equitably to reflect Customer’s actions or inactions or changes to Customer’s systems.
3. SUPPORT. Subject to Customer’s payment of the applicable subscription Fees as set forth in the Order Form, NEDGE shall provide Support for the NEDGE Service as set forth in Exhibit A during the Term.
4. PAYMENT. In consideration for the subscription to the NEDGE Service or the delivery of any Professional Services, Customer shall pay to NEDGE the Fees in the amounts and at the times specified on the Order Form or in an SOW. All Fees are payable in USD only. Excluding taxes based on NEDGE’s income, Customer is liable for all taxes, duties and customs fees associated with the Fees, whether or not NEDGE invoices Customer for them. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. At the end of each calendar quarter during the Term, NEDGE may invoice Customer for any additional Devices which are more than five percent (5%) above the quantity for which Customer has paid Fees, prorated for the remainder of the Initial Term or then-current Renewal Term. Except as otherwise expressly provided in this Agreement, Customer shall not be entitled to any refund of any Fees paid for the NEDGE Service if Customer fails to use full Scope of the license during the applicable License Term.
5. TERM AND TERMINATION.
5.1. Term. This Agreement shall commence on the Effective Date and shall continue for the Initial Term set forth on the Order Form. At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month terms (each, a “Renewal Term”) unless either party provides notice to the other at least sixty (60) days before the end of the Initial Term or then-current Renewal Term. Except as provided in an Order Form, the fees for any Renewal Term will be at NEDGE’s then-current rate. The Initial Term and any Renewal Terms are collectively the “Term”.
5.2. Termination. This Agreement may be terminated by either party: (a) upon thirty (30) days written notice if the other party materially breaches any provision of this Agreement and the breach remains uncured within that thirty (30) day period; or (b) effective immediately, if the other party ceases to do business, otherwise terminates its business operations, becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, or comparable proceeding, or if any proceeding is filed against it (and not dismissed within ninety (90) days); or (c) effective immediately, upon any breach of Section 1.1 or Section 7.5 of this Agreement.
5.3. Effect of Termination. Upon any expiration or termination of this Agreement: (a) all licenses and rights granted by NEDGE to Customer hereunder shall terminate; (b) Customer will cease all use of the NEDGE Service; (c) Customer shall immediately return to NEDGE or destroy all duplicates, and any NEDGE Confidential Information in its possession or control; and (d) Customer shall pay to NEDGE within thirty (30) days of the date of termination any fees accrued prior to the date of termination and, if this Agreement is terminated for any reason other than NEDGE’s uncured breach, any fees that would have been payable for the remainder of the Initial Term or then-current Renewal Term. With respect to Professional Services only: except in the event of termination for Customer’s uncured breach, Customer shall be entitled to a refund for any prepaid and unused Fees for Professional Services only.
5.4. Survival. The provisions of Sections 1.1, 4, 5, 6, 7.4, 7.5, 8 and 9 shall survive and remain effective after the effective date of termination or expiration of this Agreement.
6. INDEMNIFICATION. NEDGE, at its own expense (including payment of reasonable attorneys’ fees, expert fees and court costs), shall defend Customer from any and all third party claims that the NEDGE Service infringes any patent or copyright or misappropriates any third party’s trade secret and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle a claims, provided that Customer: (a) gives NEDGE prompt written notice of any claim; (b) permits NEDGE to solely control and direct the defense or settlement of any claim; and (c) provides NEDGE all reasonable assistance in connection with the defense or settlement of any claim. If Customer’s use of the NEDGE Service is (or in NEDGE’s opinion is likely to be) enjoined, NEDGE, at its expense and in its sole discretion, may: (a) procure the right to allow Customer to continue to use the NEDGE Service, or (b) modify or replace the NEDGE Service to become non-infringing, or (c) terminate Customer’s right to use the affected portion of the NEDGE Service and refund any pre-paid, unused Fees paid therefor. NEDGE shall have no obligations under this Section to the extent any infringement claim is based upon or arising out of: (u) NEDGE’s compliance with Customer’s custom requirements or specifications if and to the extent such compliance resulted in the infringement, (v) any claim to the extent relating to any third party products or Customer’s data, (w) any modification or alteration to the NEDGE Service not made by or on behalf of NEDGE; (x) any combination or use of the NEDGE Service with products or services not approved by NEDGE in writing; (y) Customer’s continuance of allegedly infringing activity after being notified thereof by NEDGE in writing; and/or (z) use of the NEDGE Service not in accordance with the terms of this Agreement or in violation of applicable law. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and NEDGE’s entire liability, with respect to infringement or misappropriation of third-party intellectual property.
7. WARRANTY; SUPPORT; DISCLAIMER; LIMITATION OF LIABILITY.
7.1. NEDGE Service Warranty. NEDGE warrants to Customer that, during the Term the NEDGE Service will materially perform in accord with the Documentation at the Service Level Availability attached as Exhibit A hereto (the “SLA”). NEDGE’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for NEDGE to provide the Service Credits as set forth in the SLA, or if in NEDGE’s judgment, NEDGE will be unable to meet the Service Level Availability, to refund the Fees paid for any period during which the NEDGE Service are non-conforming and any pre-paid, unused Fees and to terminate this Agreement. The warranties in this Section 7.1 do not cover non-conformances due to: (x) any modification, reconfiguration or maintenance of the NEDGE Service performed by anyone other than NEDGE; (y) any use of the NEDGE Service on a system that does not meet NEDGE’s minimum standards; or (z) any software or hardware not provided by NEDGE. NEDGE shall be responsible under this Section 7.1 only if Customer provides NEDGE with a written warranty claim detailing the non-conformance in the NEDGE Service within thirty (30) days of the non-conformance.
7.2. NEDGE further warrants to Customer that, during the Term (i) NEDGE will perform best efforts consistent with industry-standards to ensure that the NEDGE Services will be free of viruses, malware, worms, time bombs, Trojan Horses, software locks, phone-home mechanisms, backdoors, trapdoors, contaminants, and other harmful or malicious code that may harm the Customer’s computer systems or network and (ii) NEDGE and the Services are in compliance with all terms of any Open Source License (as defined below) applicable to any portion of the NEDGE Services, including all terms related to notice, attribution, and access to source code.
7.3. Professional Services Warranty. NEDGE represents and warrants to Customer that all Professional Services provided hereunder shall be performed in a manner conforming to generally accepted industry standards and practices for similar services. NEDGE’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for NEDGE to re-perform the nonconforming Professional Services, provided that NEDGE must have received written notice of the nonconformity from Customer no later than thirty (30) days after the original performance of the services by NEDGE.
7.4. NEDGE DOES NOT REPRESENT OR WARRANT THAT THE NEDGE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE NEDGE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE NEDGE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE NEDGE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY NEDGE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE, RELIABLE OR SUFFICIENT FOR ITS PURPOSES.
7.5. Except for a breach by either party of its obligations under sections 1.1 or 8 of this Agreement, (a) in no event shall either party be liable for consequential, exemplary, punitive, incidental, indirect or special damages or costs, including lost profits or costs of procurement of substitute goods, whether or not the party has been advised of the possibility of those damages or costs; and (b) in no event will the aggregate liability of either party, or any of NEDGE’s third party licensors under this Agreement (under any theory of liability) exceed the Fees received by NEDGE from Customer (and in the case of Customer’s liability, Fees paid and due to NEDGE) in the twelve (12) month period prior to the claim, whether any remedy set forth herein fails of its essential purpose or otherwise.
8. CONFIDENTIAL INFORMATION.
8.1. “Confidential Information” means any non-public data, information and other materials regarding the products, services or business of a party (and if either party is bound to protect the confidentiality of any third party’s information, of that third party) provided to the other party. Without limiting the foregoing, the NEDGE Service, any performance data, benchmark results, and technical information relating thereto, the Documentation, NEDGE’s pricing information and the terms and conditions of this Agreement (but not its existence) are the Confidential Information of NEDGE. Confidential Information shall not include information which: (a) is already known to the Receiving Party without restriction prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (d) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of the required disclosure and reasonably cooperates with the Disclosing Party in limiting the disclosure.
8.2. Disclosure and Use. Each party (the “Receiving Party”) agrees to keep the Confidential Information of the other party (the “Disclosing Party”) in confidence and not to use the Confidential Information except in performing hereunder. Except as expressly authorized herein, the Receiving Party agrees to: (a) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case with less than reasonable care; and (b) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know the information for the purposes of this Agreement, provided that any employee and contractor shall be subject to a binding written agreement with respect to Confidential Information at least as restrictive as the terms of this Agreement. The Receiving Party shall indemnify and hold the Disclosing Party harmless for any non-compliance of the Receiving Party’s employee or contractor with the terms of this Agreement. Subject to an appropriate obligation of confidentiality, NEDGE may disclose the terms of this Agreement and any other ordering or purchasing documents between the parties related to this Agreement to its third-party licensors for the purpose of NEDGE’s compliance with the terms of the license agreements with those third-party licensors.
9.1. Security. During the Agreement Term, NEDGE will maintain a security program that materially complies with generally accepted industry standards. NEDGE will maintain the physical and technical safeguards further described in NEDGE’s SOC 2 Type II report as updated from time to time, available from NEDGE upon request, subject to appropriate confidentiality terms and conditions.
9.2. Ownership. Customer acknowledges and agrees that as between NEDGE and Customer, all right, title and interest in and to the NEDGE Services and all enhancements, modifications and derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with NEDGE or its licensors, and NEDGE in no way conveys any right or interest in the NEDGE Services other than a limited license to use, as set forth in this Agreement. NEDGE also retains ownership of all right, title and interest in and to all know-how related to the NEDGE Services. All rights to the NEDGE Services not expressly granted to Customer under this Agreement are reserved by NEDGE. NEDGE also retains ownership of any information, data, technology and materials other than the NEDGE Services (or the software contained in the NEDGE Services) that NEDGE makes available in connection with the NEDGE Services, including any Service documentation, sample code, software libraries and other related technology and materials.
9.3. Reporting. Customer acknowledges that the NEDGE Service may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of the NEDGE Service and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to NEDGE. NEDGE will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality.
9.4. Compliance with Laws; Export Control. Customer shall use the NEDGE Service \in compliance with all applicable laws, statutes, rules and regulations. Customer will not export, re-export, use, or divert the NEDGE Services to or on behalf of (a) any country that is subject to U.S., EU or UN economic sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the European Commission or the UN, including but not limited to Burma, Cuba, Iran, the Crimea region of Ukraine, Sudan, Syria and North Korea; (b) the government of any country sanctioned by any of the above, wherever located; or (c) persons or entities identified as “Specially Designated Nationals” by OFAC or sanctioned pursuant to applicable EU Regulation, or persons or entities that are owned or controlled by such person or entity. Customer shall not distribute or supply the NEDGE Services to any person if it has reason to believe that such person intends to export, re-export or otherwise transfer the NEDGE Services to, or use the NEDGE Services in or for the benefit of, any such OFAC- or EU sanctioned countries, governments, persons, or entities. Customer shall not use the NEDGE Services in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons; missiles; or unmanned aerial vehicles. You shall not export, re-export, or transfer the NEDGE Services to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. Without limiting the foregoing, Customer shall not commit any act which would, directly or indirectly, violate, or which may cause NEDGE to violate, any United States, EU or local law, regulation, treaty or agreement relating to the export or re-export of the NEDGE Services. At Customer’s expense, Customer shall obtain any government consents, authorizations, or licenses required for Customer to exercise its rights and to discharge its obligations under this Agreement. Customer acknowledges that its data, once placed on the NEDGE Services may constitute an export of its data by the Customer to one or more foreign jurisdictions. Customer shall not cause any such export of data in violation of the laws of the United States and/or such other foreign jurisdictions.
9.5. Open-Source Code. Components of the NEDGE Service and the NEDGE Cloud may be covered by so-called “open source” software licenses (“Open-Source Software”). Customer’s use of any Open-Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in that Open-Source Software (each an “Open-Source License”). NEDGE grants Customer a license to use the Open-Source Software to the full extent permitted by the applicable Open-Source License.
9.6. Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when forwarded by certified mail (receipt requested), overnight delivery or hand delivery to the other party to the address set forth on the Order Form. Notices shall be deemed to have been received on the first business day following the day of overnight transmission or hand delivery or on the fifth business day following the day of forwarding by certified mail. The address of either party may be changed at any time by giving ten (10) business days prior written notice to the other party in accordance with the foregoing.
9.7. Relationship of the Parties. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer, or legal representative of the other.
9.8. U.S. Government End-Purchaser. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all NEDGE Service and accompanying documentation provided by NEDGE are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.
9.9. Severability; Waiver. Should any term of this Agreement be declared void or unenforceable that provision shall modified r eliminated to the minimum extent necessary and the declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to future breaches.
9.10. Assignment. Neither this Agreement, nor any rights, licenses or obligations hereunder, may be assigned by Customer without the prior written consent of NEDGE. Any attempted assignment in violation of this Agreement shall be void and without effect.
9.11. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Delaware, excluding rules governing conflict of law and choice of law. The federal and state courts within New Castle County, Delaware shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, those courts and service of process being affected upon it by registered mail and sent to the address set forth at the beginning of this Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to this Agreement nor to any dispute or transaction arising out of this Agreement. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
9.12. Entire Agreement. This Agreement and the Exhibits attached hereto sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Agreement shall have any force or effect. This Agreement may be amended only upon the written consent of both parties.
The Parties acknowledge that they are bound by this NEDGE End User License Agreement as of the Effective Date.