STANDARD TERMS AND CONDITIONS
Nucleo and the Subscriber have executed a “Subscription Agreement” with respect to Subscriber’s use of Nucleo’s Software-as-a-Service Product (Saas Product). These Standard Terms and Conditions (“Standard Terms”) are incorporated by reference into the SaaS Product Agreement as though set forth therein in their entirety. The Subscriber’s use of Nucleo’s SaaS Product shall be governed by, and subject to, the terms, covenants, conditions, and limitations set forth in the Subscription Agreement and these Standard Terms, which shall hereinafter be collectively referred to as the “Agreement”. NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS OTHER THAN AS SET FORTH IN THE AGREEMENT SHALL FORM PART OF THE AGREEMENT, OR OTHERWISE BE BINDING UPON NUCLEO, UNLESS SET FORTH IN A WRITING DATED ON OR SUBSEQUENT TO THE DATE OF THE SUBSCRIPTION AGREEMENT AND SIGNED BY NUCLEO. Undefined, capitalized terms used in these Standard Terms have the meanings set forth in the Subscription Agreement. Except as otherwise set forth herein, the Agreement may be modified only by a written agreement signed by Client and Nucleo.
1. Access and Use
1.1 Access and Use
Subject to payment of all applicable fees set forth in the Subscription Agreement, and the terms and conditions of this Agreement, Nucleo grants Subscriber, during the Subscription Term, a limited, nonexclusive, nontransferable, non-sublicensable license to access and use (and permit Authorized Users to access and use) the SaaS Product solely for Subscriber’s internal business purposes. Nucleo may update the SaaS Product from time-to-time in its sole discretion. Upon notification from Nucleo, Subscriber shall promptly update any software with respect to the SaaS Product. Subscriber acknowledges and agrees that its failure to timely install such an update may result in disruptions or failures with respect to the SaaS Product, increased security risks, or suspension of Subscriber’s access to the SaaS Product, without any liability on the part of Nucleo to Subscriber.
1.2 System Configuration
Subscriber shall be solely responsible for purchasing, installing, configuring, and otherwise ensuring the availability of, all hardware, software and equipment required to properly install and use the SaaS Product.
1.3 Access and Use Restrictions
Subscriber shall not (directly or indirectly): (i) use or permit use of the SaaS Product for the benefit of any person or entity other than the Subscriber; (ii) use the SaaS product in any manner inconsistent with the Documentation; (iii) copy or reproduce the SaaS Product or the Documentation; (iv) exceed any limitations on the subscribed quantities, users or other entitlement measures of the SaaS Product as set forth in the applicable Subscription Agreement, if any; (v) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Product, Documentation or Intellectual Property; (vi) assign, sell, resell, sublicense, rent, lease, distribute or otherwise transfer the rights granted to Subscriber under this Agreement to any third party; (vii) use the SaaS Product in any manner that competes with Nucleo in the sale and distribution of the SaaS Product; (viii) modify, copy, port, adapt, alter, reverse engineer, attempt to derive the source code or underlying ideas or algorithms of, attempt to recreate, decompile, or disassemble the SaaS Product; (ix) create, translate or otherwise prepare derivative works based upon the SaaS Product, Documentation or Intellectual Property; (x) interfere with or disrupt the integrity or performance of the SaaS Product; (xi) attempt to gain unauthorized access to the SaaS Product or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Product; (xii) use the SaaS Product in a manner that infringes on the intellectual property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data
1.4 Login Access to the SaaS Product
Subscriber is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Product, (ii) that such Authorized Users have been trained in proper use of the SaaS Product, and (iii) proper usage and security with respect to passwords, tokens, and access procedures with respect to logging into the SaaS Product. Nucleo reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Nucleo will promptly inform Subscriber in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, Nucleo may suspend Subscriber's access and use of the SaaS Product if there is an unusual and material spike or increase in Subscriber’s use of the SaaS Product and Nucleo reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Product. Nucleo will provide notice prior to such suspension unless Nucleo reasonably believes that providing such notice would be inconsistent with applicable law or would pose a risk to the security of the SaaS Product. Nucleo will promptly reinstate Subscriber’s access and use once the issue has been resolved.
1.5 Third Party Providers/Add-On Services
Subscriber agrees that to the extent any third party software or hardware is licensed or otherwise acquired or used by Subscriber in connection with the SaaS Product, including open source software, Subscriber’s use of such software or hardware are governed by the separate terms and conditions of the developer or manufacturer of such software or hardware. Unless the Subscriber Agreement specifically provides otherwise, the SaaS Product will be hosted by a third party provider of Nucleo’s choosing. Nucleo shall have no liability for the third party provider’s acts or omissions with respect to the performance of the hosting services provided Nucleo has used reasonable care in the selection of the third party provider. Subscriber will be responsible for complying with any authorized use policy of such third party provider.
1.6 Mobile Applications
Unless otherwise specified in the Subscription Agreement or the Documentation, nothing herein shall be construed as including a mobile application for access to the SaaS Product, or as a representation or warranty that a mobile application will be available in the future; however, to the extent a mobile application is made available by Nucleo for use with the SaaS Products, Subscriber shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Subscriber further acknowledges and agrees that the SaaS Product may not properly operate on a mobile application should any Authorized User fail to do so, and that Nucleo is not liable for any damages caused by a failure to update mobile applications accordingly.
1.7 Delivery
Delivery of the SaaS Product shall be complete when the SaaS is accessible to Subscriber and available for input of Subscriber Data. Any delivery date set forth in the Subscription Agreement shall be considered an estimate and shall not be binding on the parties unless the Subscription Agreement affirmatively states that time is of the essence as to delivery.
2. Support
2.1 General Support
As part of its provision of the SaaS Product, and provided Subscriber’s account is not delinquent, Nucleo shall make available, during Nucleo’s business hours, without additional charge, basic training and support to Subscriber in accordance with the Subscription Agreement and Documentation on the same basis as Nucleo makes training and support available to similarly situated subscribers.
2.2 Advanced Support
Training and support services which are beyond the scope of the training and support services included under section 2.1 above, as determined by Nucleo in its reasonable judgment, may be provided by Nucleo to Subscriber at Nucleo’s then current rates for such training and services. Training and services under this section 2.2 are subject to Nucleo’s availability. Subscriber will reimburse Nucleo’s reasonable expenses incurred in providing training and support services pursuant to this section 2.2, including, without limitation, reasonable travel expenses (including transportation, lodging and meals).
3. Payment and Taxes
3.1 Payment Terms
Subscriber shall pay fees as set forth in the Subscription Agreement monthly, in advance. Unless the Subscription Agreement specifically locks in the fees for a stated period of time, Nucleo may change the applicable fees effective as of the first day of any month while this Agreement remains in effect, by providing Subscriber with at least 30 days written notice of the change. In addition to any other fees set forth in the Subscription Agreement, and unless otherwise provided in the Subscription Agreement, the monthly usage fee shall be calculated by multiplying the then applicable fee per customer account by the highest daily total of Subscriber’s customer accounts during the immediately preceding calendar month. The monthly usage fee for partial months shall be pro-rated based on the number of days in the month the SaaS Product subscription was in effect. Subject to its confidentiality obligation set forth below, Nucleo shall have access to Subscriber’s data and network at all reasonable times for purposes of making the determination of the monthly usage fee owed by Subscriber. All SaaS Product fees are non-refundable and payable in advance. Nucleo may invoice for purchases of SaaS Product upon delivery. Fees for the SaaS Product are based on use of the SaaS Product in a manner consistent with the Subscription Agreement and the Documentation. If Subscriber uses the SaaS Product in a manner that is outside or in violation of the Subscription Agreement or the Documentation, then Subscriber will cooperate with Nucleo to address any applicable burden on the SaaS Product and pay any additional fees assessed by Nucleo.
3.2 Late Payments
Nucleo may suspend Subscriber’s access to the Saas Product and client’s data therein, without notice, immediately in the event Subscriber’s payment is not received by Nucleo by the 5th day of the month. Fees not paid when due will be subject to an interest charge equal to the lesser of one and one-half (1.5%) percent per month, or the maximum rate allowed by law.
3.3 Taxes
Subscriber will pay all sales, use, and excise taxes imposed on the transactions covered by this Agreement, excluding any tax based on Nucleo’s net income. Any such taxes shall be the responsibility of Subscriber and may be invoiced by Nucleo to Subscriber to the extent Nucleo is responsible for the collection and remittance of such taxes under applicable law.
4. Rights in Intellectual Property
4.1 Intellectual Property
Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Product, Documentation, and Intellectual Property are hereby reserved by Nucleo, and shall remain the exclusive property of Nucleo.
4.2 Subscriber Data
Subscriber owns all right, title and interest in all Subscriber Data. Nothing in this Agreement shall be construed to grant Nucleo any rights in Subscriber Data beyond those expressly provided herein. Subscriber grants Nucleo the limited, non-exclusive, worldwide license to view and use the Subscriber Data solely for the purpose of providing the SaaS Product. The inability of Subscriber to access Subscriber Data due to the suspension or termination of Subscriber’s right to access the SaaS Product shall not be a conversion, wrongful taking, or other tort or criminal act or omission with respect to such Subscriber Data and Nucleo shall have no liability with respect to the same.
4.3 Usage Data and Suggestions
Nucleo shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Subscriber’s benefit. In the event Nucleo wishes to disclose the Usage Data or any part thereof to third parties, such data shall be deidentified and/or presented in the aggregate so that it will not identify Subscriber or its Authorized Users. To the extent that Subscriber provides Nucleo with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Nucleo pursuant to this Agreement and may be implemented by Nucleo in its sole discretion. Subscriber acknowledges that any Nucleo products or materials incorporating any such Suggestions shall be the sole and exclusive property of Nucleo.
5. Confidentiality
The parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other party. The receiving party may only use the disclosing party’s Confidential Information to fulfill the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure, or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to its employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This Section 5 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in Section 6.2 (Security of Subscriber Data) and not this Section 5 apply to Subscriber Data.
5.1 Confidential Information
The parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other party. The receiving party may only use the disclosing party’s Confidential Information to fulfill the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure, or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to its employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This Section 5 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in Section 6.2 (Security of Subscriber Data) and not this Section 5 apply to Subscriber Data.
5.2 Exceptions
Information will not be deemed Confidential Information if it: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of or reliance upon the disclosing party’s Confidential Information, and the receiving party can provide evidence to that effect. The receiving party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing party prior written notice sufficient to permit the disclosing party to contest such disclosure.
5.3 Remedies
If either party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
5.4 Return
Upon the disclosing party’s written request, the receiving party will promptly return or destroy, at the disclosing party’s option, all tangible copies of the disclosing party’s Confidential Information.
6. Security and Processing of Subscriber Data
As between Nucleo and Subscriber, Subscriber is solely responsible for: (i) the content, quality and accuracy of Subscriber Data as made available by Subscriber and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Subscriber Data will be collected and used for the purpose of the SaaS Product; (iii) ensuring Subscriber has a valid legal basis for processing Subscriber Data and for sharing Subscriber Data with Nucleo (to the extent applicable); and (iv) ensuring that the Subscriber Data as made available by Subscriber complies with applicable laws and regulations including data protection laws.
6.1 Subscriber Data Content
As between Nucleo and Subscriber, Subscriber is solely responsible for: (i) the content, quality and accuracy of Subscriber Data as made available by Subscriber and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Subscriber Data will be collected and used for the purpose of the SaaS Product; (iii) ensuring Subscriber has a valid legal basis for processing Subscriber Data and for sharing Subscriber Data with Nucleo (to the extent applicable); and (iv) ensuring that the Subscriber Data as made available by Subscriber complies with applicable laws and regulations including data protection laws.
6.2 Security of Subscriber Data
Nucleo access and use the Subscriber Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Nucleo shall have no liability for the security of hosting services for the SaaS Product provided by a third party provider provided Nucleo has used reasonable care in the selection of the third party provider. Subscriber warrants that it shall take and maintain appropriate steps within its control to protect the confidentiality, integrity, and security of its Confidential Information and Subscriber Data, including: (i) operating the SaaS Product in accordance with the Documentation and applicable law and; and (ii) dedicating reasonably adequate personnel and resources to implement and maintain the security controls set forth in the Documentation. Subscriber will be responsible for the acts and omissions of its Authorized Users.
7. Warranties
7.1 Limited SaaS Product Warranty
Nucleo warrants it is the owner of the SaaS Product and has the right to license the SaaS Product in the manner set forth in this Agreement. The previous sentence constitutes Nucleo’s exclusive warranty with respect to the SaaS Product. Subscriber’s sole and exclusive remedy for breach of the above exclusive warranty will be for Nucleo to use reasonable commercial efforts to correct such breach within ten (10) days of the date that notice of the breach is provided; and, if Nucleo fails to correct the breach within such cure period, Subscriber may terminate the affected Subscription Agreement and, in such event, Nucleo shall provide Subscriber with a pro-rata refund of any unused pre-paid fees paid for the period following termination.
7.2 Disclaimer of Warranties for SaaS Product
THE SaaS PRODUCT IS OTHERWISE PROVIDED BY NUCLEO TO SUBSCRIBER STRICTLY “AS IS” WITH ALL FAULTS, WITHOUT REPRESENTATION OR WARRANTY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NUCLEO SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SaaS PRODUCT WILL BE ERROR-FREE OR WITHOUT INTERRUPTION, OR THAT THE SaaS PRODUCT WILL MEET SUBSCRIBER’S PARTICULAR REQUIREMENTS. NUCLEO SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SaaS PRODUCT OR ITS APPLICATION OR USE WILL BE AVAILABLE, SECURE FROM VIRUSES, RANSOMWARE ATTACKS OR OTHER SECURITY BREACHES, OR FREE OF DEFECTS, ERRORS OR MALICIOUS CODE, OR WILL BE UNINTERRUPTED. NUCLEO DOES NOT GUARANTY THAT THE SaaS PRODUCT OR THE USE THEREOF, OR ANY CLIENT DATA INPUTED, DISSEMINATED, OR OTHERWISE USED IN CONNECTION THEREWITH, WILL BE SECURE.
7.3 Disclaimer of Warranties for Third Party Products/Add-on Services
It is agreed that the only warranty provided under this Agreement with respect to any software, hardware, hosting services, or other services described in section 1.5 above, will be the warranty or warranties provided by the developer of the software, manufacturer of the hardware, or the third party provider of services. NUCLEO SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE SOFTWARE, HARDWARE, HOSTING SERVICES, OR OTHER SERVICES DESCRIBED IN THE PREVIOUS SENTENCE, AND FURTHER DISCLAIMS THAT ANY SUCH SOFTWARE, HARDWARE, HOSTING SERVICES, OR OTHER SERVICES, OR THE USE THEREOF, WILL BE AVAILABLE, SECURE FROM VIRUSES, RANSOMWARE ATTACKS OR OTHER SECURITY BREACHES, OR FREE OF DEFECTS, ERRORS OR MALICIOUS CODE, OR WILL BE UNINTERRUPTED. NUCLEO DOES NOT GUARANTY THAT ANY SOFTWARE OR EQUIPMENT DESCRIBED IN THIS SECTION, OR THE USE THEREOF, OR ANY CLIENT DATA DISSEMINATED OR OTHERWISE USED IN CONNECTION THEREWITH, WILL BE SECURE.
8. Limitation of Liability
8.1 Liability Disclaimers
NEITHER NUCLEO NOR ANY OF ITS MEMBERS, MANAGERS, OR EMPLOYEES SHALL HAVE ANY LIABILITY TO SUBSCRIBER FOR, AND HEREBY DISCLAIMS: (A) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS OR ARISING OUT OF THEORIES OF LAW OTHER THAN BREACH OF CONTRACT WITH RESPECT TO THE SaaS PRODUCT; AND (B) ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUCLEO SPECIFICALLY DISCLAIMS LIABILITY FOR THE TORTS OF NEGLIGENCE, MISREPRESENTATION, AND STRICT LIABILITY, AND ANY LIABILITY FOR PENALTIES, SPECIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, DATA LOSS OR BREACH ARISING OUT OF, RESULTING FROM, OR IN ANY WAY DUE OR ATTRIBUTABLE TO THE SaaS PRODUCT, INCLUDING, WITHOUT LIMITATION, THE CONDITION, NONFUNCTION, MALFUNCTION, FAULTY DESIGN, FAULTY INSTALLATION, OR FAILURE IN ANY RESPECT OF THE SaaS PRODUCT TO OPERATE, PERFORM OR SECURE SUBSCRIBER’S DATA AS INTENDED.
8.2 Maximum Liability
Nucleo’s maximum aggregate liability to Subscriber arising out of any incident or claim, or collection of related incidents or claims, related to this Agreement, regardless of the cause of action, is limited to the total amount paid or payable to Nucleo under this Agreement during the twelve (12) month period preceding the date of initial incident or claim.
9. Indemnification
9.1 Subscriber Data and Use Indemnity
Subscriber shall defend and indemnify Nucleo, its members, managers, and employees against any third party claims, demands, suits, or proceedings (including those brought by a government entity), alleging that Subscriber Data, or Subscriber’s use of the SaaS Product, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will further indemnify Nucleo from any losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) with respect to the same.
9.2 Procedure
Nucleo shall promptly notify Subscriber of any claim giving rise to an indemnification obligation hereunder in writing and shall allow Subscriber to participate in the defense of the claim. The failure to provide timely notice of an indemnification obligation shall not affect the obligation of Subscriber to provide indemnification hereunder unless he or she is unduly prejudiced in the defense of the claim by such failure to provide notice in a timely manner.
10. Term and Termination
10.1 Term
The term shall commence upon delivery of the SaaS product to Subscriber pursuant to Section 1.7. Unless a definite term is stated in the Subscription Agreement, either party may terminate Subscriber’s subscription for the SaaS Product by providing thirty (30) days’ written notice to the other party. If Subscriber continues to access and use the SaaS Product after the expiration of a definite term stated in the Subscription Agreement without entering into a new Subscription Agreement, then this Agreement shall remain in effect and thereafter may be terminated in the same manner as if no definite term had been stated (i.e. on thirty (30) days’ written notice). Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement and fails to remedy such breach within five (5) days after receiving written notice of the breach from the other party.
10.2 Effect of Termination/Expiration
Upon termination: (i) any accrued rights and obligations will survive; (ii) all outstanding fees and other charges under the Agreement will become immediately due and payable; (iii) Subscriber will have no further right to access or use the applicable SaaS Product, except to the limited extent required to export Subscriber Data as more fully discussed below; and (iv) each party shall return or destroy any tangible Confidential Information of the other party within its possession or control that is not contained on the SaaS Product promptly upon receiving written request from the other party. Any Subscriber Data contained on the SaaS Product may be deleted by Nucleo after the date sixty (60) days from termination. Subscriber acknowledges that it is responsible for exporting any Subscriber Data to which Subscriber desires continued access after termination, and Nucleo shall have no liability for any failure of Subscriber to retrieve such Subscriber Data, and no obligation to store or retain any such Subscriber Data beyond sixty (60) days following termination.
11. Miscellaneous
11.1 Independent Contractors
Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Nucleo and Subscriber, and neither party will have the right, power, or authority to obligate or bind the other in any manner whatsoever.
11.2 Notices
All Notices will be in writing and will be deemed to have been duly given: (i) when delivered by hand; (ii) when mailed by registered or certified mail, return receipt requested and postage prepaid or by a nationally recognized overnight delivery or express courier service to the address stated in the Subscription Agreement; or (iii) when provided via email to the address provided in the Subscription Agreement or otherwise on record with respect to this Agreement. A party may from time-to-time change his address or designee for notification purposes by giving the other party prior written notice of the new address or designee and the date, at least twenty (20) days from the date of the notice, upon which it will become effective.
11.3 Force Majeure
With the exception of Subscriber’s payment obligations herein, neither party will be liable to the other party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both parties will resume performance promptly after the cause of such delay or failure has been removed.
11.4 Governing Law and Jurisdiction
Each party agrees that this Agreement is governed and construed in accordance with the laws of the State of Wisconsin without regard to choice or conflicts of law rules, and subject to the exclusive jurisdiction of the courts of the State of Wisconsin with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. The prevailing party in any action to collect fees or to otherwise enforce this Agreement shall be entitled to recover its costs of collection, including, without limitation, reasonable attorneys’ fees from the other party.
11.5 Entire Agreement, Execution, and Modification
This Agreement supersedes all prior agreements and representations between the parties regarding the subject matter of this Agreement. If Nucleo desires to make a change to any of the terms and conditions set forth in the Agreement, Nucleo will inform Subscriber by e-mail, or through a banner or other prominent notice within the SaaS Product of the pending change. The change to the terms and conditions shall become effective and be part of this Agreement going forward starting on the first day of the first month which is more than thirty (30) days from the date such notice was first given by Nucleo unless Subscriber exercises its right to terminate this Agreement pursuant to Section 11.1 effective before that start date. Notwithstanding anything in the previous sentence to the contrary, if the Subscriber Agreement provides for a definite term which has not yet expired, then the most recent Standard Terms shall continue to apply to this Agreement until the expiration of that Term, at which time the change shall become applicable.
11.6 Severability and Waiver
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either party to enforce any rights granted to it hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
11.7 Entire Agreement
This Agreement constitutes the entire agreement between Nucleo and Subscriber with respect to the subject matter of this Agreement and, except as otherwise specifically set forth herein, may only be modified by a written amendment or addendum signed by both Nucleo and Subscriber. All purchase orders, prior agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of this Agreement are superseded by this Agreement.
11.8 Assignment
Subscriber may not assign any of its rights or obligations under this Agreement without Nucleo’s prior written consent. Nucleo may assign its obligations hereunder, and may allow the assignee access to, and use of, Subscriber Data and Usage Data in the same manner as Nucleo may access and use such data, provided that the assignee has assumed the confidentiality obligations under this Agreement.
11.9 Definitions and Interpretation
The following definitions and rules of interpretation apply in this Agreement:
“Authorized Users” means Subscriber’s employees and agents authorized by Subscriber to use the SaaS Product solely for the internal use of Subscriber. Authorized Users do not include Subscriber’s customers, vendors, contractors, affiliates, or other third parties, unless otherwise stated in the Subscription Agreement.
“Confidential Information” means all information provided by the disclosing party to the receiving party concerning the disclosing party, its business, products, or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing party at the time of disclosure.
“Documentation” means the then current user guides, installation documents, and specifications for the SaaS Product that are made available from time to time by Nucleo in electronic or tangible form and found at https://getnucleo.com, but excluding any sales or marketing materials.
“Intellectual Property” means Nucleo’s proprietary material, technology, or processes related to the SaaS Product including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of the same conceived, reduced to practice, or developed.
“SaaS Product” means the software-as-a-service products specified in the Subscription Agreement as further described in the Documentation, including any updates and upgrades to the SaaS Product provided by Nucleo in its sole discretion, and any software, systems and locally installed software Agents and connectors that interact with the SaaS Product as may be provided by Nucleo in connection with the SaaS Product.
“Subscriber Data” means all data and/or content uploaded to the SaaS Product by Subscriber (including where applicable Authorized Users), and in all data derived from it. For the avoidance of doubt, Subscriber Data does not include Usage Data.
“Subscription Agreement” means Nucleo’s form document signed by Nucleo and Subscriber via original, electronic, or digital signature which sets forth some or all of the following information with respect to the transaction for the SaaS Product: pricing, payment terms, term, delivery schedule, and other applicable terms.
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“Subscription Term” means the period of time during which Subscriber is subscribed to the SaaS Product, which may or may not be specified in a Subscription Agreement.
“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the SaaS Product suggested by Subscriber to Nucleo, excluding any Subscriber Data and Subscriber Intellectual Property.
“Usage Data” means data generated in connection with Subscriber’s access, use and configuration of the SaaS Product and data derived from it (e.g., types of applications or accounts utilized or interacting with the SaaS Product).
