TERMS AND CONDITIONS
These terms and conditions (“Terms”) are legal terms between Nvizion Solutions Private Limited., and its Affiliates (“Service Provider”) and the Client as identified on the face of the Service Order. (Service Provider and Client shall be individually referred to as “Party” and collectively as “Parties”).
1. DEFINITIONS
1.01 “Accepted” or “Acceptance” means a Party’s authorized execution and acceptance of a document.
1.02 “Affiliate” means an entity directly or indirectly Controlled by, Controlling or under common Control with a Party, now or in the future. An entity will “Control” another entity when it owns morethan 50% of the equity or other voting interests, or otherwise has management and operational control.
1.03 “Change of Control” means one or more transactions whereby (a) Control of a Party is transferred, directly or indirectly, whether by operation of law or otherwise, (b) all or substantially all of such Party’s assets or equity securities are acquired by a person, firm or entity or (c) such Party is merged or consolidated with or into another entity; provided, that, in any case, such Party's equity owners of record immediately before such transaction(s) will, immediately after such transaction(s), hold less than50% of the voting power of the succeeding, acquiring or surviving entity
1.04 “Client Content” means content, software, data, video, information and equipment of Client and/or End User, including third-party content, software, data and equipment, provided or madea vailable to Nvizion for storage, delivery or otherwise in connection with Services.
1.05 “Confidential Information” means proprietary, nonpublic or trade secret information, disclosed inwritten, oral or visual form, that the disclosing Party, its Affiliates or agents (each, “Disclosing Party”)provides to the receiving Party, its Affiliates or agents (each, “Receiving Party”) and that Disclosing Party designates as being confidential or, if disclosed orally, states at the time of initial disclosure, or if not so marked or stated should reasonably have been understood as confidential to Disclosing Party, either because of legends or other markings, the circumstances of disclosure or the nature of the information itself and that (a) relates to the Terms; (b) relates to Disclosing Party's clients, products, services, developments, trade secrets, know-how or personnel; and (c) is received by Receiving Party from Disclosing Party during the Term. Confidential Information includes: (i) non-public information relating to Disclosing Party’s business, financial, operational, technical and/or commercial information, released and unreleased products or services, marketing, market opportunities, clients, leads, business plans and/or staff; (ii) non-public information concerning Client traffic, services or End Users that would allow a third party to identify the Client, an End User or correlate the usage data thereto; (iii) non-public information related to any transaction contemplated by the Terms or any Service Order; (iv) information obtained by examination or review of Disclosing Party’s non-public information, records and/or books;(v) information obtained by examination, analysis or testing of hardware, Software or any component thereof; and (vi) notes, studies, compilations, analyses or other documents prepared by Receiving Party based on, containing or otherwise reflecting Confidential Information. Confidential Information will not include information that: (1) is or becomes publicly available through no breach of this Terms; (2) was previously known to Receiving Party free of any confidentiality obligation; (3) is lawfully obtained from a third party without similar restriction and without breach of the Terms; (4) is independently and demonstrably developed by Receiving Party without breach of the Terms; or (5) is approved for disclosure by express prior consent of Disclosing Party.
1.06 “Days” means calendar days unless otherwise indicated.
1.07 “End User” means a subscriber, member, end-user, other visitor of an online site or service ownedand/or operated by Client.
1.08 “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and servicemarks, trade names, trade dress, goodwill and marketing rights related thereto, works of authorship,inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs,techniques, derivative works, know how, all other intellectual property or proprietary rights (registeredor not) and equivalents or similar forms of protection existing worldwide, and all applications for andregistrations in such rights.
1.09 “Quotation” means a non-binding proposal communicated to Client, specifying Services to beperformed and the associated fees and charges (collectively “Fees”). Upon Client’s approval of aQuotation, Nvizion will send to Client a Service Order for Acceptance.
1.10 “Service Order” means a specification, based on a mutually Accepted Quotation, of Services to beperformed by Nvizion and the associated Fees, pursuant to the Terms.
1.11 “Service Start Date” means the Service Start Date set forth in the applicable Service Order.
1.12 “Services” means software-as-a-service provided through internet for digital media management, content delivery, network capacity, storage, media platform, storefront, advertising and other services(as set forth in any applicable Service Order), and Work Product (as defined in any applicable Service Order), that Nvizion provides to Client or End User pursuant to the Terms.
1.13 “Software” shall mean software licensed by Nvizion under these terms and described in Service Order for the Services to be performed by Nvizion.1.14 “Taxes” means any applicable foreign or domestic taxes, tax-like charges, tax-related charges and other charges or surcharges assessed in connection with Services, including all excise, use, sales, value added and other fees, surcharges and levies.
2. SERVICES
2.01 Services Nvizion will provide Services to Client or End User as specified in a mutually Accepted Service Order, subject to the Terms and Service Level’s annexed herein. Within three Days after Client has submitted to Nvizion an Accepted Service Order, Nvizion will respond with Acceptance or reason for non-Acceptance. Nvizion will not be bound to provide Services until the applicable Service Order has been mutually Accepted. However, if Client begins using Services before the Service Start Date in an applicable Service Order, the provision and use of such Services nonetheless will be governed by the terms of such Service Order.
2.02 Acceptable Use, Technical Cooperation
(a) As between the Parties, Client is solely responsible for any Client Content stored, reproduced, displayed or distributed using Services. All use of Services, unless otherwise indicated in Service Order, is governed by the Acceptable Use Policy (“AUP”), DMCA Policy, which are annexed to these Terms. Nvizion may modify such AUP, DMCA policy from time to time, effective upon Notice to Client. Continued use of Services 15 Days after such Notice will constitute assent to the modified AUP.
(b) If Nvizion determines, in its sole discretion, that Client Content or any use of Services violates the AUP or otherwise adversely impacts the Services, Nvizion reserves the right to take remedial measures including blocking or disabling access. Nvizion will use commercially reasonable efforts to limit the measures to the extent necessary to resolve the adverse impact without undue interruption of Services. The Parties will work together in good faith to resolve the problems or issues causing, in whole or part, the adverse impact. For purposes of the Terms, “adversely impacts” does not mean an unscheduled increase in End User traffic.
(c) Given the nature of content delivery network (“CDN”) Services, Client, and not Nvizion, is solely responsible for (i) all bandwidth abuse, theft or other unauthorized usage or activity occurring on Client's account (e.g., leeching or hotlinking/direct linking to content), (ii) all resulting Fees and costs, (iii) implementing any monitoring, defensive or protective tools or measures (whether offered by Nvizion or a third party) related to Client’s account and (iv) regularly monitoring all usage of bandwidth and Services and other activity on Client’s account. Nvizion makes available to Client, through the Nvizion reporting tools, data regarding Client's billable usage of bandwidth or Services; but Nvizion is not responsible for notifying Client of usage or activity patterns occurring on Client’s account.
(d) For Services to function as intended, Client and/or End User must cooperate in good faith with Nvizion to configure and enable Services. When Client or End User elects to send or receive Client Content using the Services, Client is solely responsible for modifying its content identifiers, consistent with instructions that Nvizion provides, to enable Nvizion to deliver the selected content. This may include changing the alias information in Client’s or End User’s DNS record so that hostname addresses of page objects resolve to Nvizion’s servers.
2.03 Performance Client or End User acknowledges that Nvizion (a) does not own or control all local circuit links, leased co-location spaces, leased space cross-connects, Internet service providers (“ISP”)providing connectivity to Nvizion, other networks outside the connectivity to Nvizion or ISPs, or the “Internet” and except as set forth in the SLA, Nvizion will not be responsible for performance or nonperformance within such networks or within non-Nvizion operated interconnection points between the connectivity and other networks, (b) is a mere intermediary (i.e., passive conduit) for transmission of Client Content and does not exercise editorial or other control over such materials and (c) will not be responsible for, and expressly disclaims any liability arising from, any such materials or other data accessible on the Internet or for any actions taken on the Internet.
2.04 Use of Affiliates/Suppliers/Subcontractors Nvizion may at any time, and without notice, use the services of one or more Affiliates, suppliers or sub-contractors in connection with the performance of its obligations under the Terms, and Client's obligations to Nvizion extend to those parties when acting on Nvizion’s behalf.2.05 Service Level (“SL”) To be eligible for a Service Credit under the SL, which is incorporated herein by reference, Client must be in good standing with no delinquent invoices, in addition to any other SL requirements. Nvizion may modify the SL from time to time, effective upon Notice to Client or posting of the revised SL on Nvizion's website as applicable. Continued use of Services 15 Days after the date of such Notice or posting will constitute assent to the modified SLA.
3. FEES AND PAYMENT
3.01 Client shall pay the applicable fees as stated in the applicable Service Order.
3.02 All fees and charges under the Terms shall be exclusive of Taxes.
3.03 In case any hardware network configuration is required to be maintained for performance of Services, the charges for such hardware network configuration or any infrastructure shall be paid by Client.
3.04 Client agrees to pay interest at the rate of one and half (1.5%) per month (unless a lower interest rate is specified under applicable law) on any invoice remaining unpaid for thirty (30) days from the payment due date. Nvizion shall also have a right to suspend the Services under these Terms till the payment is received.
4. Client Data, Content and Privacy
4.01 Client acknowledges that Nvizion, its Affiliates and their respective agents will, by virtue of theprovision of Services, come into possession of Client Data.
(a) “Client Data” includes all data that identifies Client or its respective End Users. Client Datamay include Client or employee contact information, End User Data, data necessary for accountestablishment, billing data or content transmission data when such data identifies Client. “End UserData” includes End User name, address, contact information, usage, billing or any other data thatpersonally identifies authorized End Users of the Services.
(b) Client acknowledges and agrees that Nvizion, its Affiliates and their respective agents may use, process and/or transfer Client Data (including transfers to entities in countries that do not provide statutory protections for personal information): (i) in connection with the provision of Services; and (ii) to incorporate Client Data into databases controlled by Nvizion and its Affiliates for the purpose of administration, provisioning, billing and reconciliation, verification of Client identity and solvency, maintenance, support and product development, fraud detection and prevention ,sales, revenue and Client analysis and reporting, marketing and Client use analysis.
(c) Client warrants that it has obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of End User Data and other Client Data as described in this Section.
4.02 Processing of End User Data
(a) Client acknowledges that Nvizion, its Affiliates and agents will, by virtue of providing Services, come into possession of End User Data.
(b) Client acknowledges that any processing of End User Data occurs exclusively at the direction and discretion of the Client, such direction and discretion exercised through workflows or other agreed upon means.
(c) Nothing in this Section is intended to restrict the rights and obligations of Nvizion and Client in respect of Client Data as defined and as set forth above.
5. CONFIDENTIALITY
During the Term and for three years thereafter, Receiving Party will not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain the sole property of Disclosing Party. Receiving Party will protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection herewith and who have executed a similarly stringent confidentiality agreement or are subject to a professional duty of confidentiality. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under these Terms in any proceeding; provided, that, (1) reasonable prior Notice is provided to Disclosing Party unless legally prohibited, (2) Receiving Party complies with any applicable protective order or equivalent and (3) Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party will notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate to help Disclosing Party prevent further unauthorized use or disclosure. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure may result inirreparable injury to Disclosing Party for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party will be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
6. REPRESENTATIONS AND WARRANTIES
6.01 Each Party represents and warrants that (a) it possesses the full right, power and authority to enter into and fully perform the obligations as mentioned in the Terms and grant the rights granted herein; (b)it has obtained and will comply with, and make any necessary payments due in connection with, all required authorizations, approvals, licenses or permits from all third parties, government authorities or other wise in order for it to enter into and perform its obligations herein; (c) it is not bound by any contractual or other legal obligation that would prevent it from entering into or performing its obligations herein; (d) the execution, delivery and performance of the Terms has been duly authorized by all necessary corporate action; (e) it will not act in a manner or enter into any oral or written agreements inconsistent herewith; and (f) it will comply with all applicable laws, rules and regulations in its performance hereunder.
6.02 Client In addition to the foregoing, Client represents and warrants that it owns, controls or possesses all necessary rights to the Client Content and any materials it supplies to Nvizion, including the programs and any advertising therein, free and clear of any and all claims, rights and obligations whatsoever and is empowered to grant the rights, licenses and privileges granted in the Terms.
6.03 Client Content Standards Client will not provide to Nvizion any Client Content: (a) that is in appropriate or unlawful; (b) contains viruses, worms, corrupt files, Trojan horses and other forms of corruptive code or any other content, which may compromise the Services or Nvizion’s network; (c) that violates the property rights of others, including unauthorized images, programs, trademarks or other Intellectual Property Rights; or (d) that has any links or connections to any of the above.
7. DISCLAIMER
NVIZION PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANYKIND, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THEFULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR OPERATION OF ANYEQUIPMENT. NVIZION DOES NOT WARRANT THAT SERVICES WILL MEET SPECIFIC REQUIREMENTS, BEUNINTERRUPTED OR ERROR-FREE, PERFORM AT OR ABOVE CERTAIN LATENCY TIMES OR BE COMPLETELYSECURE. NVIZION DOES NOT WARRANT ANY CONNECTION TO, TRANSMISSION OVER OR RESULTS OF ANYSOFTWARE, NETWORK CONNECTION, FACILITIES OR EQUIPMENT NOT PROVIDED BY NVIZION TO CLIENTHEREIN. CLIENT’S SOLE REMEDY FOR A DELIVERY SERVICE OUTAGE IS SET FORTH IN THE SLA. CLIENT ISSOLELY RESPONSIBLE FOR ASSESSING ITS OWN COMPUTER AND TRANSMISSION NETWORK NEEDS,CONTENT AGGREGATION AND DELIVERY NEEDS, STREAMING NEEDS AND THE SUITABILITY OF SERVICES TOMEET THOSE NEEDS.
8. LIMITATION OF LIABILITY
NVIZION DISCLAIMS ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS OFREVENUE OR BUSINESS PROFITS, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OFESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
9. INDEMNIFICATION
9.01 By Client Client will, at its cost, defend, indemnify and hold harmless Nvizion and its officers, directors, employees and permitted successors and assigns (each a “Nvizion Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) (“Claim”) brought against a Nvizion Indemnitee arising out of or based upon (a) bodily injury, death or loss of or damage to real or tangible personal property to the extent that such Claims were alleged to have been proximately caused by any negligent act, omission or willful misconduct of Client their respective agents or employees; (b) operation or use of Client’s products, websites or services; (c) Client Content, including any allegation that Client Content or any other data or information provided by Client or End User infringes any third party Intellectual Property Rights or otherwise violates applicable law; (d) Client’s or End User’s failure to comply in any material respect with the AUP or applicable law; (e) the unauthorized use of or access to the Nvizion platform or Nvizion Equipment by any person using Client’s or End User’s systems or network; (f) Nvizion’s compliance with Client specifications; (g) a combination or modification of the Nvizion platform or Services by or on behalf of Client byanyone other than Nvizion or its authorized agents; (h) distribution (including by sale or importation),decoding, decrypting, duplication, storage, display/playback, modification or any other use of Clientinformation by any entity other than Nvizion; or (i) information, data, or other Client Content provided by or on behalf of Client to Nvizion.
9.02 By Nvizion To the extent it is directly and solely attributable to Nvizion,Nvizion will, at its cost,defend, indemnify and hold harmless Client (each a “Client Indemnitee”) from and against any thirdparty Claim brought against Client Indemnitee based upon (a) that the Services directly infringe anypatent issued as of the Effective Date under the laws of the country in which the Services are being provided to Client or any third party copyright; and (b) Nvizion’s failure to comply in any materialrespect with applicable law during performance of the Services for Client.
9.03 Notwithstanding the foregoing, Nvizion will have no liability for any infringement of patents,copyrights or other intellectual property rights based upon or resulting from Client Content, use of theServices in a manner not specified in applicable Nvizion documentation, or services or products notsupplied by Nvizion. If the Services, or any material portion thereof are determined to infringe and theuse enjoined, Nvizion will have the option, at its sole cost, to (i) obtain the right for Client to continueusing the Services, (ii) modify the Services so that they are non-infringing, (iii) substitute functionallysimilar, non-infringing services.
9.04 The Nvizion Indemnitee or Client Indemnitee as applicable (each an “Indemnified Party”) will (a)promptly provide Notice to the indemnifying Party (“Indemnifying Party”) of any Claim for which indemnity is claimed (provided, that, any delay in providing Notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such delay), (b) permit Indemnifying Party to control the defense of any such Claim and (c)provide reasonable assistance at Indemnifying Party’s reasonable cost. Subject to the foregoing, in any Claim for which indemnification is sought, Indemnifying Party may select legal counsel to representIndemnified Party (such counsel to be reasonably satisfactory to Indemnified Party) and to other wise control the defense. If Indemnifying Party elects to control the defense, Indemnified Party may fully participate in the defense at its own cost. If Indemnifying Party, within a reasonable time after receipt of Notice of Claim, fails to defend Indemnified Party, Indemnified Party may defend and compromise or settle the Claim at Indemnifying Party’s cost. Notwithstanding the foregoing, Indemnifying Party maynot consent to entry of any judgment or enter into any settlement that imposes liability or obligations on Indemnified Party or diminishes Indemnified Party's rights, without obtaining Indemnified Party'sexpress prior consent, such consent not to be unreasonably withheld or delayed.
9.05 Exclusive Remedy This Section 10 provides the sole and exclusive remedy of Client and the exclusive obligations of Nvizion in connection with any third party claim, action, suit or other demand asserted against Client as described in subsection 10.2 above (in respect of Nvizion’s obligations to indemnify Client only) and Nvizion disclaims all other warranties and obligations with respect thereto.
10. TERM AND TERMINATION
10.01 Term: Term shall be as specified in the Service Order.
10.02 Termination for Cause
(a) By Client Client may terminate the Service Order for cause, upon Notice to Nvizion, if (i) areceiver or administrator is appointed for Nvizion or its property; (ii) Nvizion makes a generalassignment for the benefit of its creditors; (iii) Nvizion commences, or has commenced against it,proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within60 Days; (iv) Nvizion is liquidated or dissolved; (v) Nvizion ceases to do business or otherwiseterminates its business operations; or (vi) Nvizion materially breaches the Terms and such breachcontinues unremedied for 30 Days after receipt of Notice from Client. For clarity, a Delivery ServiceOutage (as defined in the SL) is not grounds to terminate the Terms for cause; Client's sole remedyfor a Delivery Service Outage is set forth in the SL.
(b) By Nvizion Nvizion may terminate Service Order for cause and/or suspend Services uponNotice to Client if (i) a receiver or administrator is appointed for Client or its property; (ii) Clientmakes a general assignment for the benefit of its creditors; (iii) Client commences, or hascommenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which arenot dismissed within 60 Days; (iv) Client is liquidated or dissolved; (v) Client ceases to do business orotherwise terminates its business operations; (vi) Client fails to pay all invoiced Fees within 30 Daysfrom the invoice date, subject to Section 3.4
(c); (vii) Client initiates one or more Bad Checks orFrivolous Chargebacks; (viii) any use of Services, including Client Content, actually or allegedlyinfringes or misappropriates any Intellectual Property Rights or otherwise violates the AUP or anyapplicable law, regulation or order; (ix) Client breaches the exclusivity provision in any applicableService Order; or (x) Client otherwise materially breaches the Terms and Service Order and suchbreach continues unremedied for 10 Days after receipt of Notice from Nvizion. Nvizion mayterminate, interrupt or suspend Service without prior Notice if necessary to (1) prevent or protect againstfraud, (2) protect Nvizion’s Clients, personnel, facilities, equipment, network or services, (3) preventviolation of Section 7 or infringement upon the rights of others or (4) prevent potential material liability.(c) Termination by Nvizion for Change of Control If Client undergoes a Change of Control,Nvizion may terminate the Service Order upon 30 Days’ Notice to Client or Client’ssuccessor/transferee; provided, that, Nvizion has determined in its sole discretion that Client’ssuccessor/transferee is unable to assume and fulfill Client’s obligations herein or otherwise presentsan undue financial or credit risk or is a direct competitor of Nvizion.(d) Effect of Termination(i) Upon expiration or termination of the Service Orderfor any reason, (i) all rights to access oruse Services and any other Nvizion Intellectual Property Rights will terminate and Nvizion willcease providing same, (ii) Client will pay to Nvizion all Fees accrued but unpaid as of the date ofexpiration or termination, (iii) all liabilities accrued before the date of expiration or terminationwill survive for a period of 3 years and (iv) Client will return or destroy, and certify in writing toNvizion such destruction of, all copies of Nvizion Confidential Information.(ii) In preparing a final invoice to Client, which Client will pay pursuant to the terms of theTerms and Service Order, Nvizion will (i) calculate the balance due, (ii) deduct from such balancethe unused portion, if any, of any prepaid Fees or Client deposit and (c) bill Client for theremaining balance due. If there remains an unused portion of any prepaid Fees or Client deposit after satisfaction of the balance due, Nvizion will refund to Client such unused portion.
11. Miscellaneous
11.01 Non-Solicitation During and for one year after the Term, Client will not, and will ensure that its Affiliates do not, directly or indirectly solicit for employment any person employed by Nvizion to provide Services. Notwithstanding the foregoing, employment that is initiated by indirect solicitation(such as general newspaper advertisements or general online job postings not targeted at Nvizion's employees) will not be considered a recruitment or solicitation hereunder.
11.02 No Third-Party Beneficiaries There are no third-party beneficiaries to the Terms, including anyinsurance providers
11.03Notices All notices, requests, approvals, consents and other communications required orpermitted herein (each, a “Notice”) will be in writing, in English, and will be deemed conclusively. If toNvizion: Attention: President, with a copy to: Vice President and General Counsel; e-mail: legal@n7.io; Ifto Client: at the contact information specified below. Either Party may change its contact informationupon Notice to the other Party. For clarity, if a Notice is not received because the receiving Party hasfailed to notify the other Party per the preceding sentence or because receipt is refused, such Noticenonetheless will be deemed to have been conclusively made seven Days after delivery was reasonablyinitiated.11.04 Force Majeure Neither Party will be liable by reason of any failure or delay in theperformance of its obligations herein due to acts of God, civil disorders, acts of terrorism, rebellion, fires,explosions, accidents, floods, vandalism, sabotage, unavailability of equipment, Software or parts fromvendors, work stoppages or other labor activity, labor conditions, shortages, fire, flood, storm, earthquakeor other natural disaster, explosion, embargoes, strikes, riots, insurrection, war or unrest, military action,governmental restrictions or action, terrorism or threat of terrorism, computer viruses or worms,computer sabotage, ‘Denial of Service’ attacks, DNS spoofing attacks or other malicious online attacks(provided, that, the Party claiming such cause has taken commercially reasonable steps to prevent suchattacks) or other cause beyond such Party’s reasonable control (each, a “Force Majeure Event”).Client’s obligation to pay for Services or products provided by Nvizion before a Force Majeure Event maybe delayed during, but will not be excused by, the Force Majeure Event. Nvizion may limit use ofServices if a Force Majeure Event results in extraordinary levels of traffic on Nvizion systems. A Partywhose performance is affected by a Force Majeure Event will promptly provide Notice with relevant details tothe other Party and the obligations of the Party giving such Notice will be suspended to the extent caused bysuch Force Majeure Event for as long as the Force Majeure Event continues; and the time for performance ofthe affected obligation will be extended by the delay caused by the Force Majeure Event. If the affected Partyis prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 Days,then it may in its sole discretion immediately terminate the affected Service by giving Notice of termination tothe other Party; provided, that, in the case of termination by Client, Client first provides Nvizion a reasonableopportunity to replace the affected Service with a comparable Service. Upon such termination, Nvizion isentitled to payment of all accrued but unpaid Fees incurred through the date of such termination. The Partieswill otherwise bear their own costs and Nvizion will be under no further liability to perform the Servicesaffected by the Force Majeure Event.11.05Choice of Law, Forum This Terms will be construed and enforced in accordance with the laws of theState of Illinois, without regard to conflict of laws principles. Each Party agrees that any action, suit orother proceeding arising from or based upon this Terms (each, a “Dispute”) will be brought andmaintained only in a Federal or State court of competent jurisdiction located in Illinois; each Partyconsents to the mandatory jurisdiction and venue of such courts and waives any right to object tojurisdiction and venue. The prevailing Party in any Dispute will be entitled to recovery of its reasonableattorneys' fees and costs. The Parties agree that the United Nations Convention on Contracts for theInternational Sale of Goods will not apply to this Terms.11.06 Relationship of Parties The Parties are independent contractors and agree that this doesnot establish a partnership, association, joint venture or agency relationship or other co-operative entitybetween the Parties.11.07Waiver, Amendments No failure or delay by either Party to exercise or enforce any right hereinwill operate as a waiver of any such right. The Terms may be amended only by a writing signed by anauthorized representative of Nvizion and an authorized representative of Client.Nitrogen Terms & Conditions | Effective 24/1/2023 | Version 1.0Nvizion CDN: MSA 10 © NvizionCONFIDENTIAL11.08 Severability If any provision of this Terms is held by a court of competent jurisdiction to beunenforceable or contrary to law, such holding will not render the Terms unenforceable or contrary tolaw as a whole, and, in such event, such provision will be changed and interpreted so as to bestaccomplish the objectives of such provisions within the limits of applicable law.11.09 Export Controls Each Party acknowledges that the Services, Confidential Information,hardware, Software, technology, devices or other materials or information obtained from or provided tothe other Party under the Terms may be protected under, and subject to, the United States (US)Government import and export control laws, as well as those of a foreign equivalent; accordingly, theiruse, import, export and re-export, may be restricted, prohibited or necessitate securing licenses whicheither Client or Nvizion, as applicable, will obtain or provide information for the securing of suchlicenses, depending on who is designated as the importer and exporter in the transaction. Each Partyagrees not to directly or indirectly export, re-export or cause to be exported or re-exported, any suchConfidential Information, Services, hardware, Software, technology, device or other such materials orinformation to any destination or entity prohibited or restricted under US law, unless it will have firstobtained express prior consent of the disclosing party, US Customs and Border Protection and the USDepartment of Commerce (or other applicable agency of the US Government, either in writing asrequired hereunder or as provided by applicable regulation, as the same may be amended from time totime)..11.10 Survival The Parties’ rights and obligations set forth in Sections 3.4(c) (Invoice Disputes), 4(Intellectual Property), 6 (Confidentiality), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification)and 14 (Miscellaneous) will survive termination or expiration of the Terms for a period of 3 years.11.11 Entire Terms This Terms, the SLA, the AUP and all Service Orders between the Parties areincorporated herein by reference, constitute the entire agreement between the Parties with respect toits subject matter and supersede all other prior or contemporaneous representations, understandings orTerms; and there are no other representations, understandings or Terms between the Parties relative tosuch subject matter. Except as otherwise expressly stated herein, no amendment to this Terms is validunless in writing and signed by both Parties.11.12 Conflict of Terms If there is an irreconcilable conflict between the terms and conditions of theTerms and any other documents referenced herein, the conflict will be resolved in the following order ofprecedence: (a) Service Order, (b) Terms, (c) SLA and (d) AUP.11.13 Remedies To the extent permitted by applicable law, the Parties’ rights and remedies providedherein are cumulative and in addition to any other rights and remedies at law or equity.11.14 Construction Descriptive headings in the Terms are for convenience only and will not affect theconstruction of the Terms. The terms “include,” “including” or “e.g.” mean “include, withoutlimitation”. Terms with well-known technical or industry meanings are so construed. Each Party and itscounsel have fully reviewed and contributed to this Terms. Any rule of construction that ambiguities areresolved against the drafting Party will not apply in interpreting this Terms.11.15 Affiliates An Affiliate may transact business with Nvizion hereunder pursuant to a mutuallyAccepted Service Order that incorporates the Terms. In such event, references herein to “Client” aredeemed to refer to such Affiliate and in connection with any applicable Service Order the Affiliate mayenforce the Terms, and have the Terms enforced against it, in its own name.Nitrogen Terms & Conditions | Effective 24/1/2023 | Version 1.0Nvizion CDN: MSA 11 © NvizionCONFIDENTIAL
Annexure A
NVIZION CDN: ACCEPTABLE USE POLICY
The Nvizion acceptable use policy (“AUP”) specifies the guidelines for the use of our network, software and all other services provided by Nvizion for customers, partners, and all other users of our network and services. Nvizion reserves the right to make changes or updates to this AUP. If we do, we will update this page to reflect those changes.
1. Customer Content Responsibility
Nvizion is in no way responsible for any customer content delivered or stored on our network, nor do we monitor customer content for legality or other purposes. Nvizion customers are solely responsible for the content that is delivered, stored, or otherwise made available on the Internet using our network and services. Customers are solely responsible for ensuring that all their content abides by applicable laws. Customer is also responsible for maintaining a copy of their content, even if customer content is also stored on Nvizion owned and maintained equipment.
2. Illegal Use
Nvizion's network and services can only be used for legal purposes. The transmission, storage, or distribution of content that is in violation of any applicable domestic or foreign law or regulation is strictly prohibited. Furthermore, the Nvizion services may not be used to distribute, store, or transmit any virus, Trojan horse, worm, or any other content that may be harmful to the Nvizion network, equipment, or toother users. Customers may not use the Nvizion network or services to store or distribute content that is in any way fraudulent or misleading, for the purposes of deceptive advertising, or for the purposing of promoting deceptive products or services.
3. Intellectual Property
Nvizion prohibits the use of our network or services to store, distribute, reference domain names, or make any other use of any material protected by trademark, copyright, patent, or other intellectual property right without proper authorization.
4. Email, Spam, and Usenet
We explicitly prohibit customers or other parties from using the Nvizion network to send bulk unsolicitedcommercial email (“spam”) or to make multiple Usenet (newsgroup) postings. We also prohibitcustomers or other parties from using a third-party network not under our control for the purposes ofsending spam or multiple Usenet postings that advertise or refer recipients of the spam or Usenet postingto any content that is stored, delivered, or otherwise made available on our network. Furthermore, weprohibit the sending of email messages with forged header information or messages that otherwiseindicate that Nvizion wasinvolved in thetransmission of such material.
5. Network and System Security Violations
Network and system security violations are prohibited by Nvizion, and we reserve the right to pursue criminal and/or civil charges and/or work in conjunction with legal authorities in relation to any such violation. Examples of such violations are, but not limited to, the following:
- Unauthorized access of networks, data, servers, databases, etc. that customer does not have permission to access.
- Any attempt to test, probe, or scan any Nvizion system or network (or use our network orsystemsfor the purposes of such tests) in order to ascertain vulnerability, or any attempt to breach security or authentication measures without authorization.
Annexure B
DMCA POLICY
In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content posted on the CDN infrastructure infringes upon your copyrights, you may submit anotification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of suchworks at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) A statement that you have a good faith belief that use of the material in the manner complainedof is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury,that you are authorized to act on behalf of the owner of an exclusive right that is allegedlyinfringed.
All notifications of claimed copyright infringement should be submitted to DMCA@n7.io.
In connection with User Submissions, you further agree that you will not:
(i) submit material that is subject to protection under the copyright laws of the United States or any foreign country, protected by trade secret, or otherwise subject to third-party proprietaryrights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Nvizion Solutions and our authorized affiliates all of the license rights granted herein;
(ii) publish falsehoods or misrepresentations that could damage Nvizion Solutions, our authorized affiliates or any third party;
(iii) submit material that is unlawful, defamatory, libelous, threatening, harassing, hateful, sexually explicit, or racially or ethnically offensive, or that encourages conduct that would beconsidered a criminal offense, give rise to civil liability, violate any law, or otherwise be inappropriate;
(iv) post advertisements or solicitations of business; or
(v) impersonate another person. Nvizion Solutions does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Nvizion Solutions expressly disclaims any and all liability in connection with User Submissions.
Nvizion Solutions does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights pursuant to Section 5(D)below. Nvizion Solutions or our authorized affiliates reserves the right to remove Content and User Submissions without prior notice. Nvizion Solutions will also terminate a User's access to its Network infrastructure, if they are determined 2 to be a repeat infringer. Nvizion Solutions will not be obligated to refund any unused portion of a listing, membership or subscription fee if an account is terminated for repeat copyright infringement. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. Nvizion Solutions also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, including, but not limited to, whether a User Submission is defamatory, excessively long, or otherwise violates these Terms of Service. Nvizion Solutions or our authorized affiliates may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
- Unauthorized monitoring of traffic or data on any network or system without authorization from the owner of such network or system
- Any attempt to interfere or disrupt any service or network by using the following, but not limited to, methods: flooding, mail-bombing, denial of service attacks, or any other deliberate attempts to overload a system
- The forging of any TCP-IP packet headers or any part of the header information in news group posting or emails
- Any usage or attempted usage of services for which customer is not authorized to use
6. Reporting AUP Violations and Nvizion Remedies
It is the customer's responsibility to immediately take action to prevent any known or suspected AUP violations and immediately report the violation to Nvizion. Should we become aware of any violation assolely determinedby Nvizion, we reserve the right to block access to any content, suspend or terminate any affected service, or take any other action we deem appropriate. While we will attempt to providenotice to customers of such actions, we reserve the right to suspend or terminate a service immediately without notice if Nvizion, at its solediscretion, determines that the violation is harming Nvizion's service, network, customers, or users. We will not be liable for any damages of any nature that may result from aviolation of this AUP, and our customers indemnify Nvizion against any and all damages that may arise from a violation of this AUP by custom er or customer's users. Complaints or reports of a violation of this AUP must be sent to legal@N7.io
7. Digital Millennium Copyright Act (DMCA)
In accordance with all applicable laws, Nvizion Solutions respects the intellectual property rights of its customers, suppliers, partners, end users and third parties. Without limiting our rights and remedies here under, Nvizion Solutions complies with all aspects of the Digital Millennium Copyright Act (42 USC512) (“DMCA”) and maintains and enforces a policy whereby it will terminate services to any end user guilty of repeat infringement.
A more detailed description of our policies regarding the Digital Millennium Copyright Act (DMCA) is available separately. Please direct all questions concerning our DMCA policy to: dmca@n7.io
Annexure D
Service Levels (“SL”)
This SL applies only to Clients and Delivery Services directly provided by Nvizion. All capitalized terms usedherein but not specifically defined in this Annexure will have the meanings ascribed to Terms.Nvizion provides a 100% uptime guarantee on Client Content stored and delivered on the CDN, or stored onClient equipment and delivered on the CDN. Subject to the terms and conditions herein, Nvizion willprovide Credit for failures to meet the stated uptime guarantee
.1. DEFINITIONS
1.01 “Base Fee” consists solely of the committed base monthly Fee paid by Client for the DeliveryServices and excludes all other Fees that might be paid by Client, including, but not limited to, setupfees, charges for additional services, incremental bandwidth usage, professional services and any othertype of optional additional services.
1.02 “Client Content”, for purposes of this SLA, means objects delivered from a Delivery Server
1.03 “Delivery Server” means servers for delivering Client Content located on the CDN
1.04 “Delivery Service Outage” means an instance in which a Delivery Service covered by the 100%uptime guarantee is completely unavailable for more than 15 consecutive minutes
1.05 “Origin Server” means either Nvizion’s or Client’s server, where Client Content is stored for retrievalby Delivery Servers.
2. Guarantee of 100% Uptime
Nvizion provides an uptime guarantee of 100% to Clients, covering
- uptime of the CDN network, i.e., the ability of Client’s IP traffic to transfer to and from the Internet across CDN network infrastructure and
- Client Content uptime and availability.
Subject to the terms and conditions of this SLA, Nvizion will issue to Client a credit for a Delivery Service Outage in an amount equal to one Day’s worth of the Base Fee paid by Client (“Credit”), multiplied by each24-hour period in which Client experiences a Delivery Service Outage during a particular month.
3. Measurement
Periodically (i.e., every 15 minutes or more often), Nvizion will measure Client Content availability by requesting representative Client Content from Delivery Servers at selected POPs, using software and hardware components capable of measuring traffic and responses at the selected POPs. Nvizion reserves the right to periodically change the measurement points and methodologies it uses, without Notice to Client.
4. Exceptions
Client will not receive Credit under this SLA in connection with a Delivery Service Outage caused by orassociated with:
4.01 Circumstances beyond Nvizion’s reasonable control including, but not limited to, acts of anygovernmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance,interruption of or delay in transportation, unavailability of or interruption or delay intelecommunications or third-party services, failure of third-party software or inability to obtain rawmaterials, supplies, or power used in or equipment needed for provision of this SLA.
4.02 DNS issues beyond Nvizion’s direct control.
4.03 Scheduled maintenance and emergency maintenance and upgrades;4.04Failure or unavailability of hardware that Client provides or controls, including, but not limited to,any Client Origin Server;
4.05 Failure or unavailability of software applications or code that Client provides to Nvizion, or the interactions of these items;
4.06 Acts or omissions by Client or others engaged or authorized by Client, including, but not limited to, any negligence, willful misconduct or use of Delivery Services in breach of the Terms or applicable Service Order or Statement of Work (“SOW”), or in breach of Nvizion’s then-current Acceptable Use Policy posted below in the Appendix;
4.07 False SLA breaches reported due to outages or errors of any Nvizion measurement system;
4.08Stream buffering that occurs due to, or associated with, conditions beyond CDN network; or
4.09 Failure of a service that is not covered or guaranteed by this SLA, including, but not limited to, the Nvizion control center and Nvizion reporting system.
5. Credit Request and Payment
To receive Credit under this SLA, Client must submit a request in writing via email to cdn-sla@n7.io. The request must include Client’s
- company name
- contact name
- email address
- phone number
- the date and time of suspected Delivery Service Outage
- a reasonably detailed description of the reason for the Credit request
Nvizion must receive the Credit request within 30 Days after the suspected Delivery Service Outage has occurred. The suspected Delivery Service Outage must be capable of confirmation by Nvizion’s measurement tools. Any issued Credit will be applied to Client’s invoice within two billing cycles after Nvizion initially received the Credit request. Credits are exclusive of any Taxes charged to Client or collected by Nvizion.
6. Miscellaneous
Notwithstanding anything in this SLA to the contrary, total Credits issued to Client in connection with any calendar month will not exceed the Base Fee paid by Client for such month. All Credit is calculated on the basis of a 30-Day month. To be eligible for Credit, Client must follow Nvizion’s published instructions for use of the Delivery Services; improper use will result in ineligibility. Credit will not be issued if Client is in breach of the Terms or applicable Service Order or SOW, including, but not limited to, breach for nonpayment. Credit will only be issued if Client has paid in full for Delivery Services covering the time period within which the Credit is requested. Notwithstanding anything in this SL, the Terms, the applicable Service Order or SOW or the AUP, this SLA sets forth Client’s sole and exclusive remedy for a Delivery Service Outage and other issues related to Delivery Services provided to Client.