By executing one or more License Agreements, the party identified as “Customer” on the License Agreement (“Customer”) agrees to these License Agreement General Terms and Conditions (these “GTCs”). Unless otherwise specified, all references to the “Agreement” include these GTCs, any and all License Agreements, and the Maintenance and Support Terms and Conditions set forth on Exhibit A hereto (the “Support Terms”). This Agreement is entered into by and between NSONE, Inc., a Delaware corporation (“NS1”) and Customer as of the Contract Effective Date set forth on the License Agreement.
a. Subject to the terms and conditions of this Agreement, including without limitation Customer's payment of all of the Fees (defined below) due hereunder, NS1 hereby grants to Customer a limited, non-exclusive, non-sub-licensable, non-transferable license to use the components of its software applications, tools, and other products that are listed on the License Agreement (collectively, “Private DNS"), including the software developed by NS1 therein (the “Software”) and the user manuals, installation and setup guide, functional specifications, release notes and training materials relating to Private DNS (collectively, the “Documentation”) during the term of this Agreement.
b. Customer may use Private DNS (including any Customer Configurations) and the Documentation (i) only for Customer and its Affiliates, and not on an outsourced basis, as a service bureau, for resale, or similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other terms of this Agreement. Customer will be responsible for its employees’, agents’ and contractors’ (collectively, “Users”) compliance with the terms hereof. An “Affiliate” of a party is an entity that is a wholly-owned or majority-owned subsidiary of such party, an entity under common control with such party or an entity that controls such party. For purposes of the term Affiliate, “control” means the contractual right to manage another entity or majority ownership of another entity (provided that contractual rights to manage such majority-owned entity are not provided to a third party).
c. Without limiting the foregoing, Customer agrees that it and its Users will: (i) comply with all applicable laws regarding the transmission of data, including, without limitation, any applicable export control and data protection laws; (ii) not use Private DNS for illegal purposes and (iii) not use Private DNS to develop any competitive product.
d. Customer agrees that except to the extent permitted under Section 9 (Customer Configurations), no one is permitted to copy, modify, reverse engineer, decompile, or disassemble Private DNS, create derivative works thereof, or separate Private DNS into its component files without the express written consent of NS1, which may be withheld in its sole and absolute discretion. All rights to Private DNS that are granted to Customer in this Agreement are limited to the object code versions of Private DNS and in no event will Customer be deemed to have any right, title or interest in the source code of Private DNS.
e. Except to the extent set forth in the Support Terms, the license granted to Customer pursuant to this Agreement does not include a license to use all new scheduled major releases, service pack releases, and hot fixes of Private DNS offered generally by NS1 to its customers during the term of this Agreement (collectively, "New Releases"). Even if New Releases are provided to Customer pursuant to active Support Terms, "New Releases" do not include new or additional tools, services, modules, applications or other software now or hereafter offered by NS1, each of which require a separate license and payment of additional license fees. The term “Private DNS” will be deemed to include New Releases that have been provided to Customer pursuant to active Support Terms.
f. The license granted hereunder grants Customer the right to use Software in the number of production licenses of Private DNS and the number of non-production licenses of Private DNS set forth on the License Agreement. Each instance of Private DNS is deemed to be an installation of Private DNS and requires a separate license. All installations of Private DNS are subject to the terms of this Agreement. Non-production use includes
training, development, testing, quality assurance, staging or preproduction provided that the copies of Private DNS are not used in a production environment or as a backup to production.
g. Following the execution of the License Agreement by the parties, NS1 will deliver Private DNS, in its preconfigured, out-of-the box format, to Customer by making it available to Customer to download through NS1’s web portal.
a. All Intellectual Property Rights (defined below) in Private DNS and also including, without limitation, all improvements, enhancements, modifications, Customer-specific upgrades, or updates to Private DNS, developed by either party or at a party’s request (collectively, “NS1 Products”), will remain the exclusive, sole and absolute property of NS1 or the third parties from whom NS1 has obtained the right to use such NS1 Products. Intellectual property created by NS1 pursuant to this Agreement, or any other party at the request or direction of NS1, will be owned by NS1. "Intellectual Property Rights" means any and all intellectual property rights existing from time to time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide. Customer hereby assigns to NS1 all right, title and interest in any feedback and suggestions it provides to NS1 regarding Private DNS or other products commercialized by NS1. This Agreement does not convey to Customer any interest in or to the NS1 Products or any associated Intellectual Property Rights, but only a limited right to use Private DNS to the extent set forth in this Agreement, which right is subject to the limitations, restrictions, and requirements contained herein. Rights not expressly granted to the Customer are hereby reserved by NS1.
b. Except as expressly stated herein, Customer will retain all right, title and interest, including all associated Intellectual Property Rights, in and to data that Customer enters into Private DNS or disclosed by Customer to NS1 in its performance hereunder ("Customer Data"), and, as between Customer and NS1, such Customer Data will remain the sole property of Customer.
3. Fees; Expenses; Payment Terms.
a. In consideration of receiving the limited license set forth herein, Customer will pay the fees set forth on the License Agreement (the “Fees”) on the terms set forth therein. Initial invoicing under this Agreement will occur when Private DNS is made available to Customer; subsequent renewal invoices will be sent to Customer prior to the date such payment is due. Invoices for any Renewal Terms may be provided to Customer up to 90 days prior to the effective date of such Renewal Term.
b. All Fees must be paid to NS1 in US Dollars and are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the delivery and license of Private DNS, including without limitation, sales, services, use, value added and withholding taxes, all of which Customer will be responsible for and will pay in full, other than taxes based on NS1’s net income or property. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this Agreement at any time, Customer will be solely responsible for payment of such additional taxes and all costs associated with such assessment. Additionally, should Customer be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to NS1 hereunder, then the sum due to NS1 will be increased by the amount necessary to yield to NS1 an amount equal to the sum NS1 would have received had no withholdings or deductions been made. Amounts due are net for any bank, transfer and other third-party fees.
c. Where this Agreement establishes a due date for a payment and/or a recurring method for payment, payment will be due and payable on such due date and/or according to the method specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within 30 (thirty) days following Customer’s receipt of the invoice.
d. Any invoices not paid when due will accrue interest at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. If Customer fails to pay an invoice within 30 days after it is due, NS1 may suspend access to all or part of Private DNS.
e. Customer will maintain complete and accurate records during the Term of this Agreement and for a period of two (2) years thereafter with respect to Customer’s compliance with the license limitations set forth herein. NS1 will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit Customer’s records and use of Private DNS for purposes of determining Customer’s compliance. Customer agrees to cooperate with NS1 in the performance of any such audit, and shall provide to NS1 such access to relevant records, data, information, personnel and/or facilities as NS1 may reasonably request for such limited purposes. If NS1’s inspection and audit reveals that the Customer has under reported or underpaid, Customer shall promptly pay such amounts as are necessary to rectify such under reporting or underpayment. If the amount of such under reporting or underpayment equals or exceeds five percent (5%) of the total amounts due and payable by Customer during such period, Customer shall reimburse NS1 for the cost of such inspection and audit.
4. Limited Warranty.
a. NS1 warrants, solely for the benefit of Customer, that:
i. It has the corporate power and authority to enter into this Agreement and to grant Customer the licenses set forth herein; and
ii. The Software, in the form delivered by NS1, (a) conforms in all material respects to the Documentation and (b) does not contain any computer instructions, code, software, program, or other technology whose purpose is to damage or maliciously interfere with Customer’s systems, including any code containing viruses, worms, disabling code, time bombs, Trojan horses, spyware, malware or other surreptitious code that self-replicates.
b. Customer warrants, solely for the benefit of NS1, that it has the corporate power and authority to enter into this Agreement and performance of its obligations hereunder will not conflict with any other agreement or law applicable to Customer.
c. EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, EACH PARTY AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NS1 AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT PRIVATE DNS OR OTHER PRODUCTS OR SERVICES PROVIDED BY OR ON BEHALF OF NS1 WILL SATISFY CUSTOMER’S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT-FREE OR UNINTERRUPTED, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 4(a), PRIVATE DNS, INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, DURABILITY, INTEGRABILITY OR ACCURACY, AND CUSTOMER ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF.
d. As the exclusive remedy of Customer for a breach of the limited warranties set forth in Section 4, NS1 will, at its option, either (i) correct or repair Private DNS, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees, prorated for the period commencing on the date the error or defect was reported by Customer to NS1 and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remedies in this Section 4 will apply with respect to any software that has been damaged or modified by any party other than NS1, or used in a manner for which the software is not designed or intended.
5. LIMITATIONS ON LIABILITY.
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, INACCURACY OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES DUE TO BE PAID BY CUSTOMER TO NS1 UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FIRST CLAIM AROSE. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 5 SHALL NOT APPLY TO A PARTY’S LIABILITY RESULTING FROM A BREACH OF ITS OBLIGATIONS UNDER SECTIONS 1.c., 1.d., 2, 3 OR 7 OF THE GTCs.
a. NS1 will indemnify, defend and hold harmless Customer and its affiliates (including its and their respective directors, officers, employees and agents) from and against any and all third party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) (“Claims”) that the Software, as delivered to Customer by NS1, when used in accordance with the terms of this Agreement, constitutes a direct infringement or misappropriation of a valid U.S. patent, copyright, trademark or trade secret of such third party in each case, in effect as of the date of this Agreement.
b. Customer shall give NS1 prompt written notice of any Claim and will cooperate in relation to the Claim. NS1 will have the exclusive right to control and settle any Claim, except that NS1 may not settle a Claim without Customer’s prior written consent if the settlement requires Customer to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials). Customer may participate in the defense of any Claim at its expense. This indemnification is limited to the Software in the form delivered to Customer and does not cover claims arising from (i) modifications thereto not made by NS1 or at the express written direction of NS1, (ii) use of the Software in combination with other software or items not provided by NS1, (iii) unauthorized use of the Software or (iv) continued use of a previous version of the Software after NS1 has made a new version of the Software available to Customer without such claim.
a. "Confidential Information" means any oral, written, graphic or machine-readable information, technical data or know-how, including, but not limited to, that which relates to patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), documentation (including the Documentation), hardware configuration, computer programs, algorithms, business records, financial information, financial projections, corporate plans, strategic plans and analysis, customer lists and any other information that would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential.
b. Notwithstanding the foregoing, the term "Confidential Information" does not include information pertaining to a party if (i) such information is generally known to the public through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party may be bound.
c. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent the unauthorized use of any such Confidential Information by any third party within such party's control. Each party may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access to such Confidential Information for the purposes of performing this Agreement or using Private DNS, provided each party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality obligations in this Section 7 and such employees and contractors are subject to confidentiality obligations at least as protective of the Confidential Information as the provisions in this Section 7; or (ii) if such disclosure is in response to a valid order of any court or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to provide the other party with prior notice of such Order, to the extent legally permitted to do so. Under no circumstances will Confidential Information related to NS1 be disclosed to any competitor of NS1 without NS1's prior written permission.
d. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any unauthorized use or disclosure of such Confidential Information.
e. If the parties have previously executed any other agreement that includes confidentiality or non-disclosure obligations to the other party, any Confidential Information exchanged pursuant to such agreement will (i) remain confidential, (ii) as of the date of the execution of this Agreement be deemed Confidential Information within the meaning of this Agreement and (iii) be governed by the terms hereof. Subject to the ongoing confidentiality obligations set forth in this Section 7, any conflicting confidentiality obligations in any such agreement will deemed to be superseded by the conflicting obligations set forth in this Section 7.
8. Term; Termination.
a. The term of the license granted in this Agreement and the Support Terms is set forth on License Agreement. Unless otherwise terminated in accordance with these GTCs, this Agreement will continue in effect for the initial term of set forth on the License Agreement (the “Initial Term”) and will be automatically renewed for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party gives the other not less than ninety (90) days’ prior written notice of its intent to terminate this Agreement effective as of the end of the then-current Term.
b. If either party hereto fails to perform or observe any material term or condition of this Agreement (such party being the “Breaching Party”), including Customer’s failure to pay any Fees, and such failure continues unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this Agreement if such failure continues unremedied.
c. Except for a termination by Customer pursuant to Section 8.b., and unless as otherwise set forth in this Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Customer will be responsible for all Fees for the remainder of the term set forth on the License Agreement. In the event of a termination by Customer pursuant to Section 8.b., NS1 shall refund any prepaid Fees to Customer for the period from the termination date to the end of the Term. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligation of the Customer to pay Fees and costs in accordance herewith, and the obligations of the parties pursuant to Sections 1.c. and 1.d. (Software License), Section 2 (Ownership), Section 3 (Fees; Expenses; Payment Terms), Section 5 (Limitations on Liability), Section 6 (Indemnification), Section 7 (Confidentiality), Sections 8.c. and 8.d. (Termination), Section 9 (Customer Configurations) and Section 11 (General). Within 30 (thirty) days of receipt
of a written request following a termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as requested in writing by the other party.
d. Within seven (7) days following termination or expiration of this Agreement, Customer shall uninstall and delete Private DNS and the Documentation in their entirety from all of Customer’s and its Affiliates’ systems and certify in writing as to the uninstallation and deletion of Private DNS and the Documentation in accordance with this Section 8.d.. NS1 may utilize license keys or other reasonable controls to enforce license term limitations. Customer will cooperate with NS1 in all such efforts. Upon termination or expiration of this Agreement, all licenses granted hereunder shall be deemed to be terminated effective immediately. Unless otherwise stated in this Agreement, Customer shall pay all due and unpaid fees within ten (10) days following termination or expiration of this Agreement.
9. Customer Configurations.
Customer will be permitted to use one or more application programming interfaces (APIs), command line interfaces (CLIs), and web interfaces made available by NS1 to configure the Software hereunder in accordance with the Documentation (such configurations or other modifications, “Customer Configurations”). Customer will not use any other method to modify or configure the Software. Customer shall not create any Customer Configuration that, in whole or in part, mimics any material functionality of any software or service developed or marketed by NS1 or that would reasonably be deemed competitive to any software or service developed or marketed by NS1 if the Customer Configuration were to be released to the public market. NS1 disclaims all representations and warranties, express or implied, regarding Customer Configurations and assumes no liability whatsoever with respect to Customer Configurations. Customer must indemnify and hold harmless NS1 from all damages and out-of-pocket costs (including reasonable attorney fees) for any third-party action based on a claim that any Customer Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
10. Back-Up Activities.
Customer has the sole responsibility for the maintenance and protection of all data input into Private DNS, including, without limitation, the making, storing and security of back-up and archive copies of such data (collectively “Back-Up Activities”), and Customer acknowledges NS1 will not perform any Back-Up Activities for or on behalf of Customer.
a. No Waiver. 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 will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
b. Independent Contractor. Customer acknowledges that NS1 is at all times an independent contractor and that the Customer’s relationship with NS1 is not one of principal and agent nor employer and employee. No NS1 personnel will be entitled to participate in any compensation or benefits plan of Customer.
c. Force Majeure. Neither party will be liable or responsible for any delay or failure in performance if such delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of carriers, third-party local exchange and long distance carriers, utilities, Internet service providers, transmitters, vandals, or hackers, or any other similar causes that may be beyond its control.
d. Notice. Any legal notice or official communication required to be given by either party under this Agreement or by law must be in writing and made by hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set forth on the first page of the License Agreement. Notice will be deemed given on the date of receipt or first refusal by the recipient. All communications pursuant to this Section will be deemed delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when electronically confirmed, if delivered by electronic mail.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which when so executed and delivered will be deemed an original, but all such counterparts will together constitute but one and the same instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, unless a party objects to use of its name, logo or other non-confidential information in writing, each party may issue public statements pertaining to the existence of the business relationship between NS1 and Customer, including the right to limited use of the other party’s name, logo and other reasonable non-confidential information in press releases, web pages, advertisements, and other marketing materials.
h. Assignment. Neither party has the power to assign, license, or sub-license any of its rights or obligations hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, a party may assign this Agreement (i) as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party provided that any such assignment will not release the assigning party from its obligations under this Agreement.
i. Governing Language. This Agreement and all proceedings hereunder will be conducted in the English language; any translation of this Agreement into another language will be for convenience only but will not modify the meaning hereof. Only a written instrument duly executed by each party may modify this Agreement.
j. Governing Law; Jurisdiction. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of, the State of New York without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a state or federal court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of such courts. EACH PARTY HEREBY WAIVES ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREES TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
k. Entire Agreement. This Agreement, together with all Annexes, Exhibits and amendments hereto, contains the entire understanding of the parties, and supersedes all prior agreements and understandings relating to the subject matter hereof. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. The parties further represent and acknowledge that communications exchanged between the parties during contract negotiation (including, without limitation, requests for proposal (“RFPs”) and NS1’s responses to such RFPs; questionnaires and responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such documents submitted by Customer will be for Customer’s internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other such document will have no force or effect and will not amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, the License Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control: 1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced by the Agreement.
Maintenance and Support Terms and Conditions
These Maintenance and Support Terms and Conditions (“Support Terms”) apply to the License Agreement provided that Customer is in compliance with all of the terms and its obligations under the Agreement. Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Maintenance and Support.
NS1 will offer maintenance and support on the terms set forth in Section 3 below that correspond with the Tier of the Maintenance and Support Subscription set forth on the License Agreement for the last two Long Term Support Versions (as defined in the Documentation) and the last two Short Term Support Versions (as defined in the Documentation). New Releases will be made available to Customer during the term of this Agreement.
2. Error Response.
Error descriptions (each an “Error”), the Error severity levels and corresponding targeted response time per level are each described in the table below. Target Response Times are measured from the time an Error is reported to [email protected]
Target Response Time
One – Critical
A major component of Private DNS is in a non-responsive state and effectively blocks Customer operations (including the inability to update zones and records). The non-responsive state is not resolved by restarting the service or services.
Two – Major
Any component failure or loss of functionality not covered in Severity 1 that is hindering operations, such as, but not limited to: excessively slow response time, functionality degradation; error messages; backup problems; or issues affecting the use of Private DNS or data therein
Three – Minor
Cosmetic issues or bugs that do not require immediate action and are not affecting Customer’s ability to use Private DNS
4 hours; excludes holidays and weekends
Four – Enquiry
Standard questions for the support team or issues that can easily be scheduled for a later date, such as an upgrade or patch
2 business days; excludes holidays and weekends
3. Error Reporting and Diagnosis.
a. Customer must designate a representative as the contact that will report Errors to NS1 and be NS1’s primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement (such representative is referred to herein as the “Customer Contact”). When a Customer Contact reports an Error to [email protected], NS1 will use commercially reasonable efforts to diagnose the root cause of the Error Effective as of October 1, 2018 (“Diagnosis”). Upon completing the Diagnosis, each Error will be classified as either a “Warranty Error” or a “Non-Warranty Error” pursuant to Section 3.b. below.
b. “Warranty Errors” are all Errors that do not qualify as Non-Warranty Errors. “Non-Warranty Errors” are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of Private DNS; (ii) operator error; (iii) incorrect data entry; (iv) third-party software not part of Private DNS; (v) failure to incorporate any New Release previously provided to Customer by NS1 which corrects such Error; (vi) modification of Private DNS performed by or on behalf of Customer by a party other than NS1; (vii) hardware error; and (viii) technical consulting services provided by NS1 at Customer’s request (e.g., change orders, integration development, or configuration design and implementation), unless Customer notifies NS1 of such problem within the applicable warranty period set forth in the governing statement of work, change order or agreement. Customer acknowledges that each version of Private DNS is intended for use only with the software and hardware described in the Documents for such version of Private DNS, and Customer will be solely responsible for its adherence thereto.
4. Service Tiers.
Migration resources are available to Customer (includes Knowledge Base, Developer Hub, Product and Installation Guides) Onboarding assistance from NS1 Support with zone imports, advanced record configuration and zone consistency checks for 60 days following the Effective Date
Includes all of the Tier 3 services plus:
Dedicated NS1 Customer Success Manager as the primary point of contact for Customer
Dedicated Slack channel available during the migration process
NS1 to provide standard zone migration plan to Customer
Initial kick-off meeting, held via web conference
NS1 to conduct a single network configuration assessment via web conference
NS1 to deliver a single product training session via web conference
2 business reviews per year to discuss how Private DNS can help achieve Customer’s stated objectives, held via web conference
Includes all of the Tier 2 services plus:
NS1 to deliver standard upgrade consultations coordinated with new product releases
NS1 to assist Customer with network topology analysis (including hardware recommendations and geographic distribution of data centers)