NSFOCUS Technologies (S) Pte. Ltd.
CLOUD SERVICES MASTER TERMS AND CONDITIONS
NOTE: IF LICENSEE HAS SIGNED A SEPARATE AGREEMENT WITH NSFOCUS INCORPORATED FOR THE CLOUD SERVICES COVERED BY THIS AGREEMENT, THE TERMS OF SUCH SIGNED AGREEMENT SHALL GOVERN.
YOU SHOULD CAREFULLY READ THE FOLLOWING MASTER TERMS AND CONDITIONS (“TERMS”) BEFORE USING THE CLOUD SERVICES, THE USE OF WHICH ARE LICENSED BY NSFOCUS INCORPORATED AND ITS AFFILIATES (“NSFOCUS”) FOR USE ONLY AS SET FORTH BELOW. ACCESSING OR OTHERWISE USING ANY PART OF THE CLOUD SERVICES INDICATES THAT YOU, ON BEHALF OF YOURSELF AND ANY ENTITY BY WHOM YOU ARE EMPLOYED OR FOR WHOM YOU ARE USING THESE CLOUD SERVICES (“LICENSEE”) ACCEPTS THE TERMS OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT AND THAT "YOU" AND "YOUR" WILL REFER TO THAT COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT OR DO NOT HAVE THE AUTHORITY SPECIFIED ABOVE, DO NOT ACCESS OR OTHERWISE USE THE CLOUD SERVICES.
1. DEFINITIONS. The following capitalized terms shall be defined as set forth below:
1.1 "Agreement" means these Terms, the Order, the applicable Service Description and any other document referenced therein.
1.2 “Affiliate” of a party means a company or other legal entity that controls, is controlled by, or is under common control with such party, but any such company or other legal entity shall be deemed to be an Affiliate only as long as such control exists. For the purposes of this definition, "control" means direct or indirect ownership of more than fifty percent (50%) of the voting power, capital or other securities of a controlled or commonly controlled entity.
1.3 “Cloud Service(s)” means those NSFOCUS’s Software as a Service (SaaS), Cloud computing services, and other similar services which are made available from time to time on a subscription basis as requested by the Licensee in an Order.
1.4 “Confidential Information” means any non-public information, whether in written, oral, graphic, electronic or any other form, made available by or on behalf of one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement, including without limitation: (i) the terms and conditions of this Agreement, including any Orders; (ii) all information, data, know-how, trade secrets or other material pertaining to the operations, technology, intellectual property, programs, strategies, business plans, finances, personnel, licensees, suppliers, markets, network, sales, prices, policies or business affairs of the Disclosing Party or its Affiliates; (iii) all Licensee Data (excluding the information detected by the Cloud Service that does otherwise provide information about Licensee or its business); (iv) all information which is marked as “proprietary”, “confidential” or with words of similar meaning; (v) information supplied orally with a contemporaneous confidential designation; or (vi) information which is known by the Receiving Party to be confidential or proprietary information of the Disclosing Party or which would be deemed by a reasonable person to be confidential or proprietary in nature.
1.5 “Documentation” means NSFOCUS’s online user guides, documentation, and help and training materials, as updated from time to time, accessible at NSFOCUS.com, or upon login to the applicable Cloud Service.
1.6 “Intellectual Property Rights” mean any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation: (i) trade dress, trademark and service mark rights; (ii) patents, patent applications, patent rights, design rights and utility models; (iii) rights associated with works or authorship including but not limited to copyrights, copyright applications, copyright registrations, mask works rights, mask work applications, mask work registrations and database rights; (iv) rights relating to trade secrets, know-how and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; and (vi) divisionals, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, as hereafter created, filed, used or acquired, and whether registered or unregistered.
1.7 “Licensee Data” means the Licensee information which is served or diverted through the Cloud Services.
1.8 “Order” means an order that includes a description of Cloud Services to be licensed by Licensee.
1.9 “Platform” ” means the (i) global NSFOCUS Cloud platform, including network, virtualization, domain name functionality and the NSFOCUS Cloud Portal (https://portal.nsfocus.cloud) through which the Cloud Services are provided, (ii) NTI Cloud Portal (https://nti.nsfocusglobal.com), and (iii) Cloud Web Vulnerability Scanning Service Portal (https://webscan.nsfocus.cloud).
1.10 “Service Description” means a description of the features, functionality and/or operation of the Cloud Service at the time of the Order. NSFOCUS may modify or amend the Service Description upon notice to Licensee (which may be via posting on NSFOCUS’s website or Platform), provided such modifications or amendments shall not have a material adverse effect on Licensee’s use of the Cloud Service.
1.11 “Service Term” means the period that the Cloud Services are authorized for use as identified in the Order
1.12 “User” means Licensee’s employees or contractors that have been given the necessary access rights to use the Cloud Services for Licensee’s internal business purposes as described herein.
2. ORDERING AND SERVICE START
2.1 Ordering. Licensee may order Cloud Services by executing the applicable Order and any supplemental terms applicable to such Cloud Services. An Order shall only be binding when executed by both parties. Licensee shall provide NSFOCUS with all information requested in the Order and any other information or access required by NSFOCUS to implement and provide the Cloud Service. Licensee is responsible for the accuracy of the information contained in its Order. In the event of a conflict between the provisions of the Service Description and these Terms, the provisions of such Service Description shall control with respect to such Cloud Service.
2.2 Service Term. The Service Term shall commence on the Service Start Date (as defined below). After the expiration of the initial Service Term, the Service Term shall automatically renew for an additional twelve (12) month period unless either party gives the other sixty (60) days prior written notice of its intention not to renew. Upon completion of provisioning of the Cloud Service by NSFOCUS, NSFOCUS will send a notification by electronic mail to the Licensee contact designated in the Order confirming that the Cloud Service is ready for use. The acceptance date for the Cloud Service shall be the earliest of: (i) two (2) business days after the date of the notice from NSFOCUS, (ii) the date on which Licensee notifies NSFOCUS of its acceptance of the Cloud Service, or (iii) the date on which Licensee begins using the Cloud Service other than for testing. Unless Licensee notifies NSFOCUS in writing within such two (2) business day period that the Cloud Service is not operating per the Service Description, Licensee shall be deemed to have accepted the Cloud Service. The Service Term for the Cloud Service and billing shall commence on the earlier of: (i) thirty (30) days following receipt of the Order (ii) the date the Cloud Service has been accepted or is deemed accepted (the “Service Start Date”). Licensee’s failure to: (i) provide the information reasonably necessary for NSFOCUS to provision the Cloud Service, or (ii) provide the connectivity and materials required for its use of the Cloud Service shall not delay the Service Start Date.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES.
3.1 Provision of Cloud Service. NSFOCUS shall use commercially reasonable efforts to make the Cloud Services available to Licensee on a 7x24x365 basis during the Service Term except for: (i) planned downtime (of which NSFOCUS shall give advance electronic notice as provided in the Service Description), and (ii) any unavailability caused by circumstances beyond NSFOCUS’ reasonable control, including, for example, force majeure events, Internet service provider failure or delay, a non-NSFOCUS application or denial of service attack.
3.2 Licenses. During the Service Term, NSFOCUS grants to Licensee and its Users a non-exclusive and non-transferable license to: (i) access and use the Cloud Service via the Platform for Licensee’s own internal use, consistent with the usage parameters and any territory or other restrictions as set forth in the applicable Order, and (ii) reproduce the Documentation as reasonably necessary to use the Cloud Service, provided that all such copies reproduce the proprietary markings of NSFOCUS in the same form and manner as on the original provided. Licensee grants NSFOCUS and its Affiliates a worldwide, non-exclusive, limited-term license to host, copy and transmit Licensee Data as reasonably necessary for NSFOCUS to provide the Cloud Services. Subject to the limited licenses granted herein, Licensee grants NSFOCUS a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify and/or distribute, including by incorporating into the Cloud Services, any suggestions, enhancement requests, recommendations or other generic feedback (excluding any Licensee Data or Confidential Information which may be provided in connection with service requests or use of the Cloud Services) provided by Licensee or any User relating to the operation of the Cloud Services. Licensee shall have written agreements in place with its Users sufficient to permit Licensee to comply with its obligations hereunder. The Cloud Services are not designed nor intended for use in: (i) the design, construction, operation or maintenance of any nuclear facility; (ii) navigational or operating aircraft; or (iii) operating life-support or life critical medical equipment, and NSFOCUS disclaims any license right as well as any express or implied warranty of fitness for such uses. NSFOCUS MAKES NO REPRESENTATION OR WARRANTY REGARDING COMPLIANCE WITH SPECIFIC LAWS OR GOVERNMENTAL REGULATIONS IN PROVIDING THE CLOUD SERVICES.
3.3 Ownership Rights. As between the Licensee and NSFOCUS, all Intellectual Property Rights and all other rights in or related to the Cloud Services and the Platform, shall belong to NSFOCUS or its licensors and nothing contained in this Agreement will give the Licensee any right, title or interest in any of them, except for the limited licenses expressly set out in this Agreement. Licensee will retain all right, title and interest in and to the Licensee Data and NSFOCUS has no right, title or interest in any Licensee Data. Licensee acknowledges that NSFOCUS will retain all right, title and interest in and to transactional and performance data (but not to Licensee Data) related to use of the Cloud Services and Platform which NSFOCUS may aggregate and collect in such a way as to not allow identification of Licensee or any User for its business purposes (including software use optimization), provided that such use does not reveal the identity of Licensee or any User or specific use characteristics that may be identified to Licensee.
3.4 Forwarded Data. The Cloud Services may operate by forwarding certain portions of the Licensee Data (“Forwarded Data”) to NSFOCUS owned or controlled servers in the United States and other countries. Licensee represents and warrants that Licensee: (i) is legally permitted and authorized to access, and to provide NSFOCUS with access to, the Forwarded Data and agrees to provide NSFOCUS with evidence of such authorization upon request; (ii) is responsible for deciding if and how Licensee uses the Cloud Services; and (iii) will use the Cloud Services only in a legal manner. In the event of any breach of this representation and warranty, NSFOCUS may, without prejudice to its other rights, disallow any Forwarded Data or use of the Cloud Services until Licensee can show to NSFOCUS’s reasonable satisfaction, that any such breach has been cured. In addition, specific Cloud Services may require Licensee to execute an “Opt-In” form permitting additional Licensee Data to be forwarded to NSFOCUS for processing. Any such executed “Opt-In” form shall be added as a schedule to the Order.
3.5 Acknowledgement. The Cloud Services are designed to identify, block and/or remove applications, data, messages and files that may compromise productivity or the performance and security of Licensee’s networks. While NSFOCUS uses reasonable efforts to properly identify applications and files for detection, given the nature and volume of malicious and unwanted electronic content, NSFOCUS cannot guarantee that the Cloud Services will properly detect or clean all applications, data and files that are malicious or that Licensee does not use or want. Licensee acknowledges and accepts the risk that the Cloud Services may cause welcome as well as unwelcome files, email or URLs or other web content to be screened and blocked and that rejected files or data may not be recoverable. To improve its products, NSFOCUS may also upload information periodically about Cloud Service usage, detected malware or potentially unwanted files and use service traffic to improve its databases and heuristics. NSFOCUS owns all right, title and interest in and to any Intellectual Property Rights or work product resulting from its use and analysis of such information.
3.6 Licensee Obligations. Licensee agrees to not and shall not permit or authorize any third parties to: (i) resell, sublicense, lease, time-share or otherwise make the Cloud Services or Platform available to any third party other than Users as specified herein; (ii) use the Cloud Services or Platform to upload, send or store infringing, defamatory, offensive, abusive or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) modify, copy or create derivative works based on the Cloud Services or Platform; (iv) decompile, disassemble or reverse engineer any software used by NSFOCUS in providing the Cloud Services or Platform; or (v) access the Cloud Services or Platform for the purpose of building a competitive product or service or copying its features or user interface. Licensee will provide NSFOCUS with access to its facilities and information as reasonably necessary for NSFOCUS to provision, test and maintain the Cloud Services. In addition, Licensee shall notify NSFOCUS of any changes to Licensee’s systems, networks, applications, equipment, bandwidth, infrastructure or the like which are likely to have an effect on Licensee’s traffic using the Cloud Services. Licensee remains responsible for (i) any data and the content Licensee makes available to NSFOCUS in connection with this Agreement, (ii) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data, and (iii) backup and recovery of any database and any stored data. Licensee will not send or provide NSFOCUS with access to any personally-identifiable information, whether in data or any other form, and will indemnify and hold NSFOCUS harmless from any claims regarding personally-identifiable data.
3.7 Passwords. Licensee acknowledges and agrees that the Cloud Services may not be accessed except by entry of a User specific password. Licensee shall be solely responsible for the security of passwords issued to each User. Licensee is entirely responsible for all activity occurring under its Users’ IDs and passwords and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with the use of the Cloud Services, including those related to data privacy, international communications and the transmission of technical data. Licensee agrees to promptly notify NSFOCUS of any unauthorized use of Licensee’s accounts, unauthorized access to a password or any other breach of security known to Licensee or its Users. NSFOCUS may, in its sole discretion, immediately terminate Licensee’s or its’ Users’ access to the Cloud Services if Licensee’s or its Users’ conduct fails to conform to this Section. Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Licensee Data. Licensee agrees to defend, indemnify and hold NSFOCUS harmless from and against any and all claims and liabilities, including reasonable attorneys' fees to the extent related to or arising from: (i) all conduct and activities occurring under Licensee’s User IDs and passwords; (ii) any defamatory, libelous or illegal material contained within the Licensee Data; and (iii) any claim or contention that Licensee Data infringes any Intellectual Property Rights of a third party or violates any third party's rights of privacy or publicity.
3.8 Right to Subcontract. NSFOCUS’s use of subcontractors for the provision of its hosting environment, network, hosting infrastructure and certain software development related to the Platform and Cloud Services is not subject to Licensee’s approval.
4. DELIVERY AND FEES.
All fees will be specified in the Order. Billing for Cloud Services will start on the Service Start Date.
5. CONFIDENTIALITY.
5.1. Licensee Data. All Licensee Data shall be deemed Licensee Confidential Information regardless of marking. NSFOCUS will take reasonable measures to secure and defend its locations and equipment against “hackers” and others who may seek without authorization, to modify or access NSFOCUS’s systems or the information found therein without the consent of Licensee or NSFOCUS. NSFOCUS will periodically test its systems as part of the Cloud Services for potential areas where security could be breached. NSFOCUS will promptly report to Licensee any breaches of security or unauthorized access to Licensee’s Data on NSFOCUS’s systems that NSFOCUS detects or becomes aware of. NSFOCUS will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner.
5.2 General Obligations. By virtue of this Agreement, either party may have access to the other party’s Confidential Information. Receiving Party will protect Disclosing Party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information of like kind, but in no event with less than a reasonable degree of care. Receiving Party will not use or disclose Disclosing Party’s Confidential Information except as permitted in this Section or for the purpose of performing its obligations under this Agreement. Confidential Information may be disclosed only to employees or contractors of Receiving Party with a "need to know" and who are instructed and agree not to disclose the Confidential Information and not to use the Confidential Information for any purpose, except as set forth herein. Receiving Party shall have appropriate written agreements with any such employees or contractors sufficient to ensure compliance with the provisions of this Agreement. Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party provides prompt written notice thereof to the Disclosing Party (to the extent legally permitted) and assistance to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The confidentiality obligations of each party will survive expiration or termination of this Agreement for a period of three (3) years.
5.3 Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of the Receiving Party; (ii) the Disclosing Party discloses to third parties without restriction on disclosure; (iii) is disclosed to the Receiving Party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) is independently developed by the Receiving Party without use of or access to the Confidential Information of the Disclosing Party; or (v) is previously known to the Receiving Party without a nondisclosure obligation as evidenced by written records. Furthermore, nothing in this Agreement shall prevent the Receiving Party from disclosing relevant aspects of the Disclosing Party’s Confidential Information to the Receiving Party’s and its Affiliates’ directors, officers, bankers, attorneys, and accountants, to the extent that such disclosure is necessary for the performance of the Receiving Party’s obligations under this Agreement or on a need-to-know basis; provided that all such persons receiving Confidential Information are subject to an enforceable confidentiality agreement with the Receiving Party that is consistent with the confidentiality terms of this Agreement.
5.4. Use of Licensee Name. NSFOCUS may refer to Licensee by name in NSFOCUS’s marketing materials and website and, subject to Licensee’s review and approval, may promote Licensee’s business and use of the Cloud Services through a press release, advertising and other marketing literature.
5.5 Injunctive Relief. It is understood and agreed that notwithstanding any other provision of this Agreement, a breach by either party of Section 5 may cause the other party irreparable damage for which recovery of money damages might be inadequate, and that the other party shall therefore be entitled to seek timely injunctive relief, without posting bond, to protect such party’s rights under this Agreement in addition to any and all remedies available at law.
5.6 Return of Confidential Information. On Disclosing Party’s written request or upon expiration or termination of this Agreement for any reason, the Receiving Party will promptly return or destroy, at Disclosing Party’s option, all Confidential Information of Disclosing Party, in any form or media, and provide a written statement to Disclosing Party certifying the return or destruction of such Confidential Information.
6. LIMITED WARRANTIES, DISCLAIMERS AND REMEDIES.
6.1 Harmful Code. For purposes of this warranty, “Harmful Code” shall include without limitation, any code containing viruses, Trojan horses, time bombs, worms or like destructive code or code that self-replicates or computer instructions, circuitry or other technological means designed to disrupt, damage or interfere with Licensee’s authorized use of the Cloud Services or Licensee’s computers and communications facilities or equipment. NSFOCUS represents and warrants that it: (i) incorporates commercially reasonable measures to screen for Harmful Code, (ii) it has used commercially reasonable efforts, including the installation of industry standard anti-virus software, to ensure that the Platform contains no Harmful Code, and (iii) it uses commercially reasonable efforts to prevent the introduction of such Harmful Code into the Platform. The following shall not be deemed Harmful Code: (a) a feature through the user interface that permits a User to access the Platform and Cloud Services through a browser over the Internet , (b) keys that de-activate evaluations of the Cloud Services after a period of time, making the Cloud Services unusable or (c) keys which limit the bandwidth for the use of the Cloud Services or otherwise prevent the Cloud Services from being used other than as specified in the Order.
6.2 Cloud Services. NSFOCUS represents and warrants that the Cloud Services will conform to the description set forth for such Cloud Services in the applicable Service Description and any applicable Service Level Objectives (“SLAs”) for such Cloud Services in all material respects. Licensee’s sole and exclusive remedy for a breach of the foregoing warranty shall be the receipt of service level credits as specified in the applicable Service Description. This warranty shall not apply, and NSFOCUS shall not be responsible for its inability to provide the Cloud Services to the extent such failure is due to: (i) third party software, hardware or network infrastructure outside of NSFOCUS’s or its hosting service provider’s data center and not under the direct control of NSFOCUS or its hosting service provider; (ii) failure of the external internet beyond NSFOCUS’s or its third party provider’s network; (iii) electrical or internet access disruptions; (iv) any actions or inactions of Licensee in violation of this Agreement; or (v) attacks (i.e. hacks, malicious introduction of viruses and disabling devices) caused by third parties.
6.3 Data Protection. Licensee acknowledges that NSFOCUS will not be a data controller nor process data for the purposes of the General Data Protection Regulation or any other applicable data protection and privacy laws, regulations and guidelines in relation to the traffic it monitors or scrubs as part of the Cloud Services and that the content of the traffic will not be visible to NSFOCUS. Licensee is responsible for all consents required for NSFOCUS to provide the Cloud Services. However, NSFOCUS will be provided “Business Contact Information” (“BCI”). Licensee acknowledges that NSFOCUS, will, by virtue of the performance of this Agreement, come into possession of BCI as a Data Controller (as defined under European laws and regulations). NSFOCUS will use and process BCI only in accordance with all applicable laws and regulations. Licensee acknowledges and agrees that NSFOCUS may use, process and/or transfer BCI (including intra-group transfers to the United States or to any other country located outside of the country of collection of the BCI, whether within or outside the European Economic Area): (i) solely in connection with the performance of its obligations hereunder; and (ii) to incorporate BCI into databases controlled by NSFOCUS for the purpose of account administration, billing and reconciliation; operational maintenance and support activities; security, fraud detection and prevention. Licensee may withdraw consent for such use, processing, or transfer of BCI as set out in (iii) above upon written notice to NSFOCUS. Licensee acknowledges that it has the right to access BCI upon written notice and have any agreed errors in such BCI rectified, or deleted, or to request additional information on the use, processing and/or transfer of its BCI.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION 6, NSFOCUS PROVIDES THE CLOUD SERVICES AND PLATFORM “AS IS” AND EXPRESSLY DISCLAIMS ANY WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE CLOUD SERVICES AND PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. NSFOCUS DOES NOT WARRANT THAT OPERATION OF THE CLOUD SERVICES AND PLATFORM WILL ERROR-FREE OR THAT THEIR OPERATION WILL BE UNINTERRUPTED AND HEREBY DISCLAIMS ALL LIABILITY ON ACCOUNT THEREOF.
7. INDEMNITY.
7.1 Licensee Indemnity. Licensee agrees to indemnify and hold NSFOCUS and its Affiliates and their officers, directors and employees harmless (including payment of reasonable attorney’s fees), at Licensee’s expense, from any and all claims to the extent arising from NSFOCUS’ processing of Licensee Data and BCI via the Cloud Service consistent with the terms of this Agreement.
7.2 Intellectual Property Indemnity. NSFOCUS shall defend, indemnify and hold Licensee and its officers, directors and employees (“Licensee Indemnified Party”) harmless (including payment of reasonable attorney’s fees), at NSFOCUS’s expense, to the extent based on a claim by a third party that Licensee’s use of the Cloud Services as specified herein infringes any (a) copyright, trademark or trade secret of or (b) patent enforceable within the United States, Canada, United Kingdom, Germany, Japan or Singapore. In the event that the Cloud Service becomes the subject of such a claim or action or in the event that NSFOCUS wishes to minimize its potential liability hereunder, NSFOCUS may, at is option and expense either: (i) secure for Licensee the right to continue to use the Cloud Service as provided herein, (ii) replace the Cloud Service with a substantially equivalent, non-infringing service or (iii) modify the Cloud Service so that it is non-infringing and substantially equivalent in functionality. The foregoing obligations will not apply to the extent the infringement arises as a result of: (a) any use of the Cloud Service in a manner other than as specified herein; (b) any use of the Cloud Service in combination with products, equipment, devices, software, systems or data not supplied by or NSFOCUS to use to the extent such claim is directed against such combination; or (c) arising out of the Licensee Data. This Section 7.2 states Licensee's exclusive remedy and NSFOCUS¬'s exclusive liability for any claim of infringement or misappropriation arising pursuant to this Agreement.
7.3 Process for Indemnification. Each party’s obligation to provide the indemnification set forth herein (“Indemnifying Party”) shall be conditioned upon (i) Indemnified Party providing Indemnifying Party with prompt written notice of any such claim or action, (ii) Indemnifying Party having sole control of the defense of any such action or claim and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires contribution from the Indemnified Parties or any use or mention of the Indemnified Parties’ name must be approved by the Indemnified Parties (such approval not to be unreasonably withheld); and that (iii) the Indemnified Parties shall cooperate with Indemnifying Party in a reasonable way and at Indemnifying Party’s expense to facilitate the settlement or defense of such claim or action. The Indemnified Parties may, at their expense and option, use counsel of their choosing to observe the defense of any such claim.
8. LIMITATION OF LIABILITY.
NSFOCUS AND ITS SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF REVENUE OR ANTICIPATED PROFITS, BUSINESS DISRUPTION, LOST BUSINESS, OR DAMAGE TO SYSTEMS, DATA, OR PROGRAMS ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING PURSUANT TO SECTION 7, THE LIABILITY OF NSFOCUS AND ITS SUPPLIERS HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE FOR THE CLOUD SERVICES DURING THE PRIOR TWELVE (12) MONTH PERIOD. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY TO LICENSEE. The parties expressly acknowledge and agree that NSFOCUS has set its prices and has entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between NSFOCUS and Licensee and form an essential basis of the bargain between the parties.
9. TERM AND TERMINATION.
9.1 Term. This Agreement will remain in effect until terminated.
9.2 Termination for Cause. Either party may suspend performance and/or terminate this Agreement immediately if the other party: (i) breaches any material term of this Agreement and fails to cure such breach after a reasonable period not to exceed thirty (30) days following receipt of notice of such breach; or (ii) becomes insolvent or bankruptcy or receivership proceedings are initiated by or against such party which remain undismissed after sixty (60) days; or (iii) initiates dissolution or winding up of its business. In the event this Agre