Legal

THIS TERMS OF SERVICE AND END USER LICENSE AGREEMENT (“TERMS OF SERVICE/EULA”), TOGETHER WITH THE NASUNI PRIVACY POLICY, THE APPLICABLE PURCHASE ORDER (AS DEFINED BELOW), AND, IF APPLICABLE, THE NASUNI SERVICE LEVEL AGREEMENT, CONSTITUTE A BINDING AGREEMENT (“AGREEMENT”) BETWEEN NASUNI CORPORATION (“NASUNI”) AND YOU OR THE LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”). BY AGREEING TO A PURCHASE ORDER (AS DEFINED BELOW) YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON LIABILITY SET FORTH HEREIN.

WHEREAS, Nasuni is in the business of providing software and services to enable enterprises to protect, store and access data files including, but not limited, to documents, videos, engineering and programming files, in the cloud, which provides the capacity and resiliency they may need, as they may need it. Through Nasuni, multiple users may securely access their cloud files from different locations, and may work on them simultaneously and securely; and

WHEREAS, enterprises may purchase software and services from Nasuni (all, collectively “Software”) including:

1. the UniFS® technology which runs on the enterprise’s endpoint appliances in their locations providing encryption and gateway technology;
2. related Nasuni mobile applications; and
3. Nasuni software enabling management services in the cloud (the “Nasuni ManagementConsole”); and

WHEREAS, enterprises also may purchase cloud data storage services to use with Nasuni Software which store, back up and scale access to their data, from one of the following solution providers:

4. data storage cloud services provided through Nasuni (“Nasuni Data Storage Services”); or
5. object storage services with dedicated servers from a cloud provider other than Nasuni (“Private Cloud”); or
6. any public cloud object storage services from a cloud provider other than Nasuni (“BYOC”).

THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF YOUR USE OF ALL NASUNI DATA STORAGE SERVICES, INCLUDING THE ACCOMPANYING SOFTWARE AND THE RELATED USER MANUALS AND OTHER DOCUMENTATION (“DOCUMENTATION”). THE TERM “SERVICE” MEANS ALL NASUNI DATA STORAGE SERVICES TOGETHER WITH THE SOFTWARE AND DOCUMENTATION, AND EXCLUDES ALL DATA STORAGE SERVICES SUCH AS PRIVATE CLOUD OR BYOC WHICH A THIRD PARTY PROVIDES DIRECTLY TO YOU.

IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE AND YOU MUST IMMEDIATELY CEASE USING THE SERVICES AND UNINSTALL THE SOFTWARE.

THE TERMS OF THE PURCHASE ORDER APPLICABLE TO THE SERVICE EXECUTED BY YOU AND NASUNI OR BY YOU AND AN AUTHORIZED NASUNI RESELLER (“RESELLER”) AND APPROVED BY NASUNI (EACH, A “PURCHASE ORDER”) SHALL APPLY TO YOUR USE OF THE SERVICE. THE TERMS OF ANY AGREEMENT BETWEEN YOU AND A RESELLER OTHER THAN A PURCHASE ORDER BETWEEN YOU AND A RESELLER THAT HAS BEEN APPROVED BY NASUNI SHALL NOT BIND NASUNI OR MODIFY OR OTHERWISE AFFECT ANY RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT.

1. License.

(a) Grant. Subject to the terms and conditions of the Agreement, Nasuni grants to you a non- exclusive, non-transferable license during the Term (as defined in Section 9), without the right to sublicense, to (i) use the computer-executable object code of the Software installed on your appliance products (“Appliances”) solely for your own internal needs; and (ii) use the Documentation in connection therewith.

(b) Ownership. You acknowledge that (i) all right, title and interest in and to the Service, including the Software and Documentation therein, and all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and shall remain with Nasuni or its third party licensors; (ii) no right or interest in the Service is conveyed other than the limited licenses granted herein; (iii) the Service is protected by the copyright and other intellectual property laws; and (iv) Nasuni asserts that the Service embodies valuable confidential and secret information of Nasuni, the development of which required the expenditure of considerable time and money.

(c) Copying. You may, at your own expense, make a reasonable number of copies of the Software and Documentation solely for archival and back-up purposes only; provided that you include on each such copy all copyright or other proprietary notices contained on such Software and Documentation.

(d) No Modification. You agree that you shall not (i) modify or alter the Software; (ii) create derivative works of the Software; (iii) decompile, disassemble, decode or reverse engineer the Software, translate the Software or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Software or reduce the Software by any other means to a human-perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.

(e) Certain Other Obligations. You agree that you (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Service or any components thereof; (ii) shall not alter or remove any copyright or other proprietary notices contained in the Service or any components thereof; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Service.

(f) Components. You shall not use any component contained in or provided with the Service separately from your use of the Service.

(g) Additional Restrictions Applicable to Trial Periods. If you have a trial agreement, your right to use the Service shall terminate on the expiration date communicated to you by Nasuni or the applicable Reseller, which period will in no event exceed sixty (60) days. Your use of the Software under a trial agreement may also be subject to such capacity limitations as Nasuni may impose. No warranties or indemnities of Nasuni specified herein shall apply for a trial agreement and the Services and Software shall be provided “as is”.

2. Use of the Service.

(a) Your Responsibility. You acknowledge that (i) Nasuni provides data storage services and that (ii) Nasuni has no knowledge of and takes no responsibility for the Content (as such term is defined below) that you store in the Service. You agree that it is your responsibility to ensure that the Content you store in the Service is not in violation of any laws.

(b) Communications. You are responsible for obtaining and maintaining all of the Appliances, mobile devices, hardware, software and services that you may need to access and use the Service. Without limiting the foregoing, you must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications, data-plan or other charges incurred by you to access and use the Service.

(c) Passwords. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user ID’s or other credentials and login information (collectively, “Passwords”) that have been provided to you or that are generated in connection with your use of the Service. You will not disclose or make available any Passwords other than to your authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Service. You are fully responsible for all activities that occur in connection with your use of your Passwords. Without limiting the foregoing, you are responsible for all charges applicable to data and information transmitted to and stored under your account on the Service. Without limiting the generality of Section 5, and except as expressly provided in the Service Level Agreement, Nasuni will have no liability to you for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of your Content that results from any third party’s access to or use of Passwords in your possession.

(d) Nasuni-supplied Hardware. If you select a Service that requires a rented Nasuni hardware appliance (“Hardware”) to be installed on-site at your facility, at all times the Hardware shall remain the property (either owned or leased) of Nasuni. You may use the Hardware only in connection with your receipt and use of the Service. Nasuni may at its option provide new or reconditioned Hardware and the Hardware shall be refreshed by Nasuni no less frequently than once every five (5) years. You shall provide at no cost to Nasuni adequate security and insurance coverage to protect the Hardware from theft, loss damage or misuse. Nasuni will repair and maintain the Hardware owned by Nasuni at Nasuni’s expense, unless such repair or maintenance is made necessary due to misuse, abuse or intentional damage to the Hardware, in which case you will be financially responsible and liable for the repair or replacement of the damaged Hardware. You shall not permit anyone other than Nasuni employees or designated employees or representatives service the Hardware. You further agree not to tamper with or otherwise harm the Hardware. Nasuni reserves the right to replace the Hardware at any time for maintenance or other service-related purposes. Upon receiving new Hardware, you shall be responsible for packing, shipping and handling of the original Hardware for return to Nasuni at your expense within five (5) business days. You shall be responsible for returning Hardware to Nasuni in good working condition upon termination of the Service, subject only to reasonable wear and tear. Charges shall be applied by Nasuni for lost, stolen or damaged Hardware based upon the replacement cost of the Hardware. You agree to take commercially reasonable steps as Nasuni requests, including entry into landlord, bailee or access agreements, to provide Nasuni or its designees with access to the Hardware. Although the Hardware shall at all times remain the property (owned or leased) of Nasuni, as a precautionary measure you hereby grant Nasuni a continuing security interest in and lien on the Hardware, now present or hereafter acquired or rented by you, and hereby authorize Nasuni to file any uniform commercial code or other documents in order to evidence such security interest and lien. You furthermore hereby grant Nasuni a power of attorney to so file any uniform commercial code or other documents without your signature or further action

(e) Content. You are responsible for ensuring that you have sufficient rights in all programs, data, information and other content transmitted via the Software to the Service (the “Content”) and have the full authority to transmit and store the Content on the Service via the Software. You hereby authorize the storage on the Service of such Content as you elect to transmit via the Software. Nasuni has no ownership rights in Content transmitted to and stored on the Service. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your Content on your equipment. Any files stored or backed up on the Service which have been corrupted from viruses, software malfunctions or other causes prior to transmission will be restored in the same condition as they were upon transmission to the Service and therefore may not be usable due to such corruption. Without limiting the generality of Section 5, and except as expressly provided in the Service Level Agreement, Nasuni will have no liability to you for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of your Content.

(f) Encryption. The contents of your data files are encrypted before they are transmitted from your premises to the applicable cloud provider. If you elect to maintain your own encryption keys, Nasuni has no ability to decrypt your data files. If you elect to have Nasuni maintain a copy of your encryption keys, Nasuni can decrypt your data files upon your request or if Nasuni determines that it must do so to comply with a subpoena, warrant, or order of a court or governmental agency.

(g) Suspension, Limitation or Termination. Nasuni shall be entitled, without liability to you, to suspend, limit or terminate your access to the Service at any time in the event (i) that the Service is being used in violation of applicable federal, state or local law or ordinance (ii) that Nasuni is prohibited by an order of a court or other governmental agency from providing the Service; (iii) of a denial of service attack or any other event which Nasuni reasonably determines may create a risk to the Service or to any other customers if the Service were not suspended; or (iv) of a security incident or other disaster that impacts the Service or the security of your Content or any other data stored with such Service. In the event of any such suspension, limitation or termination of access, Nasuni shall immediately notify you of the reason for such suspension limitation, or termination of access. Nasuni shall promptly take all reasonable measures to correct any conditions within its control that cause or contribute to the need for such suspension or limitation, and any such suspension or limitation shall last only for so long as the condition justifying it continues to exist. In addition, Nasuni shall have the right to deny or suspend access to the Software or Service in the event Nasuni is not paid any amount due in connection with the Service or you breach the Agreement provided, however, that Nasuni has (i) notified you of the payment default or other breach, and (ii) you have not cured such payment default or other breach within ten (10) days after such notice. Without limiting the generality of Section 5, Nasuni shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of your right to use the Service that is implemented in accordance with the provisions of this Section. Nasuni shall notify you in the event of a breach of this Agreement and Nasuni shall not suspend access to the Service with less than ten (10) days written notice.

(h) Prohibited Activities. You may not use the Service (i) in violation of this Agreement, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Purchase Order, without prompt payment for the excess usage upon notice by Nasuni, which will be charged pro-rata at the then current rate, or for usage that results in cloud storage volume being greater than 125% of the storage volume limit described on the applicable Purchase Order; or (ii) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. You may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Service. Except as provided elsewhere in this Agreement, you may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Nasuni by its cloud providers. You may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on the Service by any other party. You may access the Service only through the interfaces and protocols provided or authorized by Nasuni. You may not access the Software or Service through unauthorized means, such as unlicensed software clients.

(i) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

(j) Changes to the Service. Nasuni has the right to change, modify, update, add to, discontinue or retire the Service and any aspect or feature thereof, including but not limited to, changing its cloud providers, hours of availability, equipment needed for access or use, and the type of files that can be stored. Nasuni will use commercially reasonable efforts to provide at least thirty (30) days’ advance notice to you of any material change to the Software or Service and you may elect to terminate this Agreement due to such material change. If you terminate due to such change, then notwithstanding any other provision of the Agreement, within thirty (30) days after such termination Nasuni shall refund to you the pro rata portion of any amount paid in advance for the then-current term, for the period from the date of termination to the originally scheduled end of term.

3. Personal Data. You acknowledge that the Service may be used to process information that may be regulated by privacy or data protection laws. As used herein, the term “Personal Data” means any data or information that is identifiable to specific individuals. Any individual’s request for access to or correction of their Personal Data received by Nasuni shall be forwarded directly to you, and you shall hold Nasuni harmless from any and all claims relating to such requests.

4. Limited Warranty.

(a) Software. Nasuni warrants solely to you that the Software, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation. Nasuni further warrants that it uses commercially reasonable efforts to ensure that the Software, at the time of delivery, does not have any viruses, Trojan horses, or timebombs. Nasuni’s sole obligation and your exclusive remedy hereunder with respect to any failure to so function shall be to use reasonable efforts to correct any such failure. Nasuni shall have no obligation for any failure resulting from (i) the use or combination of Software with any other software or hardware not supported by Nasuni; (ii) causes external to the Software, such as problems with the hardware, network or other infrastructure with which the Software is used; (iii) unauthorized or improper use of the Software; or (iv) any modification of the Software by anyone other than Nasuni.

(b) Service. Nasuni warrants to you that the Service will be available and will operate in accordance with the Service Level Agreement, which is incorporated by reference and can be found at https://www.nasuni.com/legal/#sla www.nasuni.com. Nasuni makes no other warranty whatsoever with respect to the Service.

(c) Disclaimer. NASUNI HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. Without limiting the generality of the foregoing, Nasuni does not warrant that the Software or Service will meet your requirements or operate without interruption or be error free.

5. Limitation of Liability.

(a) IN NO EVENT WILL NASUNI, ANY OF ITS LICENSORS OR RESELLERS, OR ANY CLOUD PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES (EVEN IF NASUNI HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME).

(b) YOU AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF NASUNI, ITS LICENSORS, RESELLERS AND CLOUD PROVIDERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL FEES PAID BY YOU FOR THE SERVICE FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.

(c) Except for a party’s indemnification obligations in Sections 7 and 8, neither party may bring any suit or action against the other for any reason whatsoever more than one year after the cause of action accrued.

6. Support. Nasuni or an authorized Nasuni reseller will provide customer support to you in accordance with Nasuni’s standard support policy, which is posted at www.nasuni.com (“Support Policy”). Nasuni reserves the right to change any of its policies, including its Support Policy, at any time. In providing support, Nasuni or a Nasuni reseller or agent may use a variety of tools to aid in the process of resolving your issues as a user and may request that you provide additional information in order to resolve these issues. You hereby grant Nasuni and such reseller the right to use those tools and any information you provide to Nasuni in order to provide you with support.

7. Intellectual Property Infringement.

(a) By Nasuni. Except as set forth below, Nasuni will defend at its expense any action brought against you to the extent that it is based on a claim that the Software, when properly used within the scope of this Agreement, infringes a United States patent, copyright or trade secret of any third party and Nasuni will pay any costs, damages and reasonable attorneys’ (collectively, “Damages”) fees finally awarded against you in such action which are attributable to such claim; provided that (i) Nasuni is notified in writing promptly of the claim; (ii) you permit Nasuni to assume sole control of the defense, compromise or settlement of said claim; and (iii) you provide to Nasuni reasonable cooperation, information and assistance in connection therewith at Nasuni’s expense. If a final injunction is obtained against your use of the Software by reason of infringement or if in Nasuni’s opinion the Software is likely to become the subject of a successful claim of such infringement, Nasuni may, at its option, either procure for you the right to continue using the Software or replace or modify the same so that it becomes non-infringing (so long as the functionality is essentially unchanged). In the event that neither of the foregoing is reasonably available, Nasuni may require you to cease the use of the Software, Documentation or Service and shall refund to you a pro rated portion of any fee you have paid in advance.

(b) Exclusions. Nasuni shall have no liability to you for claims of infringement based on (i) your use or combination of Software with any other software or hardware not supported by Nasuni, if such infringement would not have occurred but for such use or combination; (ii) any modification of the Software by anyone other than Nasuni; or (iii) the use of other than the current version of Software, if such version was made available by Nasuni with notice that such version was being provided in order to avoid an alleged or potential infringement.

(c) This Section 7 states the entire liability of Nasuni with respect to infringement or alleged infringement of any patent, copyright, trade secret or other proprietary right.

8. Indemnification. You agree to defend at your expense any action brought against Nasuni to the extent that it is based on the Content and you will pay any Damages finally awarded against Nasuni in such action which are attributable to such claim; provided that (i) you are notified in writing promptly of the claim; (ii) Nasuni permits you to assume sole control of the defense, compromise or settlement of said claim; and (iii) Nasuni provides to you reasonable cooperation, information and assistance in connection therewith at your expense.

9. Term and Termination.

(a) Term. Subject to Nasuni’s receipt of all applicable fees, and unless otherwise terminated in accordance with this Section 9, this Agreement shall commence upon your acceptance of the Agreement and shall continue in effect for the period specified on the applicable Purchase Order (the “Term”). The Term shall automatically renew for successive one year terms unless either party provides the other with written notice of its intent to terminate the Agreement, at least ninety (90) days before the end of such Term.

(b) Termination By You. You shall have the right to terminate this Agreement at any time upon notice to Nasuni in the event Nasuni breaches any of its obligations under this Agreement and such breach is not cured within thirty (30) days notice thereof. Except for termination by you pursuant to this Section 9(b) or pursuant to Section 2(j), you shall not be entitled to any refund of any fees previously paid to Nasuni or the applicable Reseller.

(c) Termination by Nasuni. Nasuni shall have the right to terminate this Agreement at any time upon notice to you in the event that you breach any of your obligations under this Agreement and such breach is not cured within thirty (30) days after notice thereof. Without limiting the foregoing, Nasuni may also terminate this Agreement if your use of the Service for ingesting data exceeds the storage volume limits specified on the applicable Purchase Order and you do not purchase additional storage volume within thirty (30) days after you receive notice regarding such excess usage.

(d) Consequences of Termination. Upon termination of this Agreement for any reason, Customer shall cease to use the Services, Software and Documentation, shall return to Nasuni or destroy all copies of the Software and Documentation, shall erase all copies which are stored in computer memory or hard disk or other similar forms or media, and shall, within thirty (30) days of such termination, furnish written notice to Nasuni that all such copies have been returned or destroyed.

(e) Content Preservation, Retrieval or Transfer. In the event of a temporary suspension of your access to Services, (i) Nasuni will not take any action to intentionally erase or delete your Content stored on the Service; and (ii) applicable fees will continue to accrue only if the suspension is due to Customer’s wrongful act or omission. In the event of the termination of this Agreement (unless the Agreement is terminated by Nasuni pursuant to Section 9(c)) you may, upon reasonable notice to Nasuni, elect to retrieve your Content directly. If this Agreement is terminated for any reason other than your breach, Nasuni will not take any action to intentionally erase or delete your Content stored on the Service for a period of thirty (30) days. If this Agreement is terminated on account of your breach of this Agreement, Nasuni will not take any action to intentionally erase or delete your Content stored on the Service for a period of fifteen (15) days. In each case, your post-termination retrieval or transfer of Content will be conditioned on Nasuni’s receipt of all applicable fees for the period following termination, payment in full of any other amounts owed, and your compliance with such reasonable terms and conditions as Nasuni may establish with respect to such retrieval or transfer. In addition, if you utilize the professional services of Nasuni to assist you in connection with such retrieval or transfer, you will be responsible for Nasuni’s then current charges for such professional services. In the event that Nasuni does not receive all such fees and amounts within the thirty (30) day or fifteen (15) day periods described above, or in the event that you fail to notify Nasuni of your election with respect to your Content within such period, Nasuni shall have no obligation to continue to store your Content or permit you to retrieve or transfer the same.

(f) Survival. The following shall survive the termination of this Agreement: (i) all liabilities accrued under this Agreement prior to the effective date of termination; and (ii) all provisions of Sections 1(b), 4(c), 5, 7, 8, 9, 10 and 11 of this Agreement. Subject to the provisions of Section 5 hereof, the rights provided in this Section 9 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of this Agreement by the other party.

10. Mobile Application Terms.

Subject to the terms of this Agreement, Nasuni grants you a non-transferable, non-exclusive license to download, install and use copies, as needed, of the Nasuni mobile application made available by Nasuni as part of the Software (“Mobile Software”) in object code form only on a mobile device that you own or control.

The following terms and conditions apply to you only with respect to Mobile Software from the Apple App Store. If you use another operating system, such as Android, you may be subject to additional terms and conditions governing the use of mobile applications running on such a system. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to Mobile Software from the Apple App Store. You acknowledge and agree that this Agreement is solely between you and Nasuni, not Apple Inc. or its affiliates (“Apple”), and that Apple has no responsibility for the Mobile Software or content thereof. Your use of the Mobile Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Software. In the event of any failure of the Mobile Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Mobile Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement. You and Nasuni acknowledge that Apple is not `responsible for addressing any claims of you or any third party relating to the Mobile Software or your possession and/or use of the Mobile Software, including: (i) product liability claims; (ii) any claim that the Mobile Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Nasuni acknowledge that, in the event of any third party claim that the Mobile Software or your possession and use of that Mobile Software infringes that third party’s intellectual property rights, Nasuni, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You must comply with applicable third party terms of agreement when using the Mobile Software. You and Nasuni acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as they relate to your license of the Mobile Software, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Mobile Software as a third party beneficiary thereof.

11. Miscellaneous.

(a) Entire Agreement. This Agreement sets forth the complete understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and communications relating thereto. No term or condition of any other document provided to Nasuni which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Nasuni. In the event of a conflict between the Terms of Service/Eula, the Nasuni Privacy Policy, or the Nasuni Service Level Agreement and a Purchase Order, the terms of such documents shall prevail to the extent of such conflict unless such Purchase Order expressly states that a term thereon is intended to prevail over the terms of such documents.

(b) Modification; Waiver. Nasuni shall have the right to amend the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement at www.nasuni.com. Nasuni shall use reasonable efforts to provide you with notice of changes to this Agreement, but you are responsible for regularly checking the Nasuni website to inform yourself of such changes. Continued use of the Software or Service after any such changes are posted shall constitute your consent to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.

(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of law rules. The parties expressly reject any application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this Agreement or the Software or Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, and you hereby consent to the jurisdiction of such courts.

(d) Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform.

(e) Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. Either party may assign or otherwise transfer this Agreement or its rights and duties hereunder to a successor of all or substantially all of its assets or business that relate to the Agreement.

(f) Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remainder hereof shall remain in full force and effect.

(g) Notices. Except as otherwise provided, notices under this Agreement shall be delivered by email addressed to the other party at such address as is set forth in the applicable order or such other email address as you may provide from time to Nasuni by modifying your user profile at www.nasuni.com.

(h) Compliance With Laws. You agree to comply at all times with all laws, rules and regulations applicable to your use of the Service.

(i) Headings. The headings of the sections of this Agreement are for convenience of reference only and shall not be considered in construing this Agreement.