IMPORTANT – READ CAREFULLY: THIS SUBSCRIPTION USE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND ANY COMPANY YOU REPRESENT (COLLECTIVELY, “YOU” AND “YOUR”) AND NODESOURCE INC. (“NODESOURCE”).
THIS AGREEMENT APPLIES TO (1) ALL LICENSES FOR SOFTWARE GRANTED BY NODESOURCE, (2) ALL SUBSCRIPTIONS FOR NODESOURCE HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO NODESOURCE CERTIFIED MODULES, NCM WEB, AND NSOLID FOR AWS LAMBDA) AND (3) ANY OTHER RELATED SERVICES THAT NODESOURCE MAY PROVIDE TO YOU IN CONNECTION WITH SUCH LICENSES AND SAAS SOLUTIONS.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE NODESOURCE SERVICE.
THIS DOCUMENT CONTAINS TWO PARTS: PART 1 – NODESOURCE CERTIFIED MODULES, NCM WEB, NODESOURCE ACCOUNTS AND NSOLID FOR AWS LAMBDA AND ANY OTHER NODESOURCE SaaS PRODUCT AND PART 2 – NSOLID ON PREMISE, NCM DESKTOP, AND NCM CI/CL LICENSE TERMS.
Part 1 - NODESOURCE SaaS
Applies to use of the NodeSource SaaS Products which NodeSource Certified Modules, NCM Web, NodeSource Accounts and NSolid for AWS Lambda
ARTICLE I. DEFINITIONS
For purposes of this Agreement, the definitions set forth below apply:
“Authorized User” means any of your employees, consultants, contractors, collaborators, or agents authorized by your administrator to access and use the NodeSource Service on behalf of your business depending on the tier, in each case subject to such person’s agreement to be bound by the terms of this Agreement.
“Developer Tier” means the NodeSource Service that is available for individual use. The additional Services available to you as a user of the Developer Tier are listed at http://www.nodesource.com/products/pricing.
“Enterprise Tier” means the NodeSource Service and NodeSource Accounts that is available for use by a larger number of individuals in the same organization. The terms of the Enterprise Tier are outside of the scope of this Agreement and will be subject to separately agreed upon written terms. The additional Services available to you as a purchaser of the Enterprise Tier are listed at http://www.nodesource.com/products/pricing.
“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“NSolid AWS Lambda” means NSolid software running on the AWS Lambda serverless computing platform provided as part of Amazon Web Services.
“NodeSource Account” means the online registration that you establish with NodeSource to manage your products, settings, billing and organization
“NodeSource Certified Modules” means a secure, private registry and certification for public Node.js modules that protects applications from risky code. 3rd party modules have been curated and certified by NodeSource to work on Node v4 LTS and Node v6 LTS.
“NodeSource Materials” means any documentation, user guides and/or other similar materials, and images, animations, videos and/or 3D models provided by NodeSource to you in connection with your use of the NodeSource Service.
“NodeSource Service” means any of the NodeSource set of SaaS solutions (currently NodeSource Certified Modules, NCM Web, NodeSource Accounts and NSolid for AWS Lambda) that are developed, operated, and maintained by NodeSource (and its third party service providers) and that are subscribed to through a NodeSource branded or controlled website (or hosted by an authorized third party). You may be required to sign up for and agree to the terms of the authorized third party host to access the NodeSource Service. Unless specifically defined by your product tier, the definition of NodeSource Service does not include any separate professional Services (as defined below) that may be purchased by you from NodeSource.
“Open Source Software” means third party software distributed by NodeSource under an open source licensing model.
“Order Form” means any online or written subscription order form for the NodeSource Service or for Services submitted by you either during an online subscription process or separately signed by you and submitted to NodeSource, and any future purchase order or order form that makes reference to this Agreement.
“Organization” means your legal entity or sole proprietorship for which you work, but can include other individuals from other entities that are collaborating with you on a specific project.
“Professional Tier” means the NodeSource Service and Accounts that are available for use by a limited number of individuals in the same Organization as defined by each Authorized User’s Organization’s agreement with NodeSource and that Organization user access settings. The additional Services available to you as a purchaser of the Professional Tier are listed at http://www.nodesource.com/products/pricing.
“Services” means any implementation, training or other professional services based on your tier or provided by NodeSource to you pursuant to the terms of an Order Form.
“Subscription Term” means the use term for the NodeSource Service set forth on your Order Form and any additional renewals of such term.
“Third Party Content” means the content, including software code, that a NodeSource partner or other third party may bundle with the NodeSource Service, for a specific market or niche offering.
“Your Data” means registration information, information concerning your Authorized Users and customers, collaborators, and contacts, information, images, animations, videos, 3D models and any similar data that you upload to the NodeSource Service.
ARTICLE II. USE RIGHTS AND RESTRICTIONS
2.2 Technical Support. During the Subscription Term, depending on your product tier as defined above you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any various levels standard technical support resources (collectively, “Technical Support”) for the NodeSource Service offered by NodeSource from time to time, the terms of conditions of which may be described and updated from time to time on https://www.nodesource.com/services/support. NodeSource reserves the right to modify the posted terms and conditions for Technical Support, at any time at its sole discretion. Should you require Services beyond those provided for by your support tier, a new support agreement shall be executed to cover your additional support needs. you agree to report any support related issues in a timely manner.
2.3 Intellectual Property Rights. NodeSource shall retain all rights, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the NodeSource Service and NodeSource Materials (including application development, business and technical methodologies, and implementation and business processes, used by NodeSource to develop or provide the NodeSource Service or NodeSource Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, you do not acquire any interest in the NodeSource Service or NodeSource Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by you or any of your Authorized Users relating to the NodeSource Service or the NodeSource Materials may be used by NodeSource without restriction or obligation to you.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of your authorized use of the NodeSource Service. Any replication or use of any aspect of the Front End Code or other NodeSource application or Services for any purpose designed or intended to compete with NodeSource’s solutions is strictly prohibited.
2.5 Ownership of Your Data. As between you and NodeSource, Your Data and any similar data provided to NodeSource outside of the uploading process (either in hard copy or electronic format) is and shall remain your property. To enable NodeSource to provide you with the NodeSource Service, and subject to the terms and conditions of this Agreement, you hereby grant to NodeSource a non-exclusive right to use, copy, distribute and display Your Data solely in connection with NodeSource’s operation of the NodeSource Service on your behalf. You, not NodeSource, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and NodeSource will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. NodeSource will protect any of Your Data provided to NodeSource as confidential in accordance with Article IV below.
2.6 Diagnostic Data. In order to assist in improving NodeSource’s products and services and as part of this Agreement to use the NodeSource Service, you agree to allow NodeSource and its subsidiaries and agents to use, store, process, and analyze (collectively, “Analyze”) diagnostic, technical, usage, and other related information from the NodeSource Service and from computers and systems that use the NodeSource Service. The information Analyzed includes, but is not limited to, general diagnostic and usage data, hardware and software details, operating system specifications, performance statistics, usage case statistics, and networking data.
2.7 Open Source Software. Customer may receive Open Source Software when Customer uses the Services. Any such Open Source Software is made available under the applicable open source licenses. You agree that your sole remedy for any issue with Open Source Software is with the licensor of the applicable Open Source Software.
ARTICLE III. FEES
3.1 Fees. The fees for the NodeSource Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. The fees for the Developer Tier are waived. If you have elected to purchase the Professional Tier, You agree to provide NodeSource with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or you otherwise provide NodeSource with credit card information, you authorize NodeSource to bill such credit card (a) at the time that you order the NodeSource Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If NodeSource, in its discretion, permits you to make payment using a method other than a credit card, NodeSource will invoice you at the time of the initial Order Form and thereafter on an annual or monthly basis (as defined by the Order Form) in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of your receipt of NodeSource’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. Any fees from an authorized third party for hosting the NodeSource Service will be invoiced separately by and payable directly to the authorized third party.
3.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on NodeSource’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent you are exempt from sales or other taxes, you agree to provide NodeSource, upon request, with the appropriate exemption certificate.
3.3 Non-Payment; Other Suspension Rights. NodeSource may terminate the NodeSource Service if the billing or contact information provided by you is false or fraudulent. NodeSource also reserves the right, in its discretion, to suspend your access and/or use of the NodeSource Service: (i) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on your NodeSource Account as to who at your business has authority to act or manage it and NodeSource is not promptly provided with written instructions from the interested parties associated with it that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of your NodeSource Account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, NodeSource may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, NodeSource may assume that the person or entity that has been making payments on your NodeSource Account has the authority to manage it. You agree that NodeSource shall not be liable to you nor to any third party for any suspension of the NodeSource Service resulting from your non-payment of Fees or from a dispute as to the management rights to your NodeSource Account.
ARTICLE IV. CONFIDENTIALITY; USE OF NAMES
4.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the NodeSource Service and the NodeSource Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). NodeSource will restrict its employees’ access to your Confidential Information to only those employees necessary to successfully provide the NodeSource Service. NodeSource may disclose Confidential Information on a need-to-know basis to its contractors and authorized hosts of the NodeSource Service who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for NodeSource in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. You may, from time to time, provide suggestions, enhancement or feature requests, or other feedback to NodeSource with respect to the Software or other NodeSource products, services, or related materials (whether or not such information is disclosed or delivered by NodeSource to you under this Agreement) (“Feedback”). You agree that all Feedback is and shall be given by you entirely voluntarily. NodeSource shall be free to use, disclose, reproduce, license, or otherwise distribute and exploit the Feedback at its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by you, shall not create any obligation of confidentiality for NodeSource, unless NodeSource expressly agrees so in writing.
4.2 Credit Card Information. NodeSource uses a third party to process credit card transactions. The use, retention, and storage of any provided credit card information is governed by the terms of service of the third party provider.
4.3 Use of Names in Marketing. NodeSource may use your business name in an appropriate and acceptable manner for standard marketing promotions, provided that NodeSource agrees to cease or alter such use at your request where such use is contrary to your branding policies, could cause any brand confusion in the market or is otherwise objectionable to you. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc. You may refuse use of your business name in NodeSource marketing promotions (either in advance or at any time during such use) by sending an email to email@example.com stating your refusal. You can use the following language in the email (or effectively the same sentiment): “We hereby refuse NodeSource the use of our business name and branding in NodeSource’s marketing promotions. Please remove our company name from any list you may have for such marketing use, and remove our company name and branding from any marketing promotion you may have already in use.”
ARTICLE V. TERM & TERMINATION
5.1 Standard Term. Unless a different Term is specified in a signed Order Form between you and NodeSource, the Initial Term of your subscription to a NodeSource Service will begin on the submission or execution of your Order Form and shall continue on a year to year or month-to-month basis depending on your subscription until the subscription is terminated as provided for in this Article 5. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.
5.2 Termination without Cause. Either party may terminate the Subscription Term to a NodeSource Service by providing thirty (30) days’ prior written notice to the other party. NodeSource’s termination rights are in addition to any suspension rights it may have under this Agreement.
5.3 Host Termination. NodeSource may terminate your NodeSource Account if you are terminated by the authorized third party that hosts your NodeSource Service or the authorized third party ceases to offer the NodeSource Service.
5.4 Questionable Practices (“Inappropriate Use”) Termination. NodeSource may terminate your account if you engage in any practice that is, in NodeSource’s sole discretion, objectionable, unlawful, obscene, pornographic, threatening, abusive, libelous or hateful, or that encourages conduct which would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law. This includes, but is not limited to:
content that in any way exploits minors under 18 years of age
viruses, worms, phishing, malware, or any other potentially harmful software
marketing to any lists of associations, memberships, voters or realtors, or any other lists whose recipients did not express explicit consent to receive such marketing material
products, services, or content that are often associated with abusive business practices or spam, such as:
pornography or illicitly pornographic sexual products
illegal drugs, software, media, or other goods
manufacture, importation, possession, use and/or distribution of marijuana or any other violation of the Controlled Substances Act
instructions on how to assemble or otherwise make bombs, or other weaponry
online and direct pharmaceutical sales
debt collections, credit repair and debt relief offerings
stock picks or promotions “get rich quick” and other similar offers
Change of Definition of “Inappropriate Use” NodeSource reserves the right to change the above definition of Inappropriate Use, as needed. Use of NodeSource’s software and/or services by you after said changes constitutes your acceptance of the new definition of Inappropriate Use.
5.4 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to NodeSource must be paid in full. Contingent upon its receipt of all such Fees, NodeSource will continue to make Your Data available for use through the termination date. In addition, for a period of thirty (30) days following termination, you may arrange for the downloading of Your Data by contacting NodeSource. Following this (30) day grace period, NodeSource may remove Your Data from the production environment for the NodeSource Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
ARTICLE VI. WARRANTIES/LIMITATION OF LIABILITY/INDEMNITY
6.1 Limited Warranties. NodeSource warrants for a period of thirty (30) days following their delivery that the NodeSource Service provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by you, your exclusive remedy shall be the re-performance of the deficient NodeSource Services, and if NodeSource is unable to re-perform the deficient NodeSource Services as warranted, you shall be entitled to recover the portion of the Fees paid to NodeSource for such deficient services, and such refund shall be NodeSource’s entire liability. Any warranty for any other service will be specified on the Order Form used to procure that service. You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the NodeSource Acceptable Use Policy, in connection with your use of the NodeSource Service, and you agree to indemnify and hold NodeSource and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives (“NodeSource Parties”) harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to your violation of law or breach of this warranty in your use of the NodeSource Service.
NodeSource will not be liable for any interruptions in service or other monetary loss related to enforcement of the NodeSource Terms of Service (TOS). NodeSource will not be liable for any loss of Your Data.
Any and all third party hardware included or sold with the NodeSource Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. NODESOURCE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NODESOURCE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
6.2 NodeSource Not Responsible for Third Party Content. The NodeSource Service may be bundled by third parties (including but not limited to NodeSource marketing or content partners) with Third Party Content designed to facilitate use of the NodeSource Service in certain market niches or to customize the NodeSource Service for use by certain categories of target customers. To the extent that you either purchase the NodeSource Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core NodeSource Service directly from NodeSource), NodeSource does not warrant in any manner and will not be responsible for such Third Party Content and you agree to look solely to the relevant third party provider (and not NodeSource) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with a NodeSource Service.
You acknowledge that if your NodeSource Service is hosted by an authorized third party, third party server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs will be used for delivery of the NodeSource Services. NodeSource may change its authorized third party hosts at any time. Your use of this NodeSource Service is subject to any restrictions, limitations, fees scheduled maintenance, and technical support imposed or offered by the authorized third party, as applicable. Notwithstanding any other provision of this Agreement, NodeSource shall not be liable for any problems, failures, defects or errors with the NodeSource Service to the extent caused by the authorized third party. Customer acknowledges that the fees payable for NodeSource Service reflect the fact that NodeSource is not responsible for the acts and omissions of the authorized third party, and that NodeSource could not afford to provide the service at the prices offered if it were responsible for the acts or omissions of the authorized third party.
6.2 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT NODESOURCE SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE NODESOURCE SERVICE.
6.3 Limitation of Liability. IN NO EVENT WILL NODESOURCE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL NODESOURCE’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO NODESOURCE DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
ARTICLE VII. GENERAL PROVISIONS
7.1 Notice. Notices regarding this Agreement to NodeSource shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to NodeSource, Attn. Contracts Administrator, 577 2nd St #204, San Francisco, CA 94107. NodeSource may give notice applicable to NodeSource’s general customer base by means of a general notice on the NodeSource website, and notices specific to you by electronic mail to your designated contact’s email address on record with NodeSource, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in NodeSource’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the NodeSource Service portal.
7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of NodeSource, which shall not be unreasonably denied provided your account is in good standing. NodeSource may assign this agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Any purported assignment in violation of this Section shall be void.
7.3 Integration; Modification. This Agreement and the information incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the NodeSource Service, the NodeSource Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The terms and conditions of this Agreement may only be amended by written agreement of the parties. Notwithstanding the forgoing, NodeSource may update the terms of this Agreement, including terms located at any URL referenced in this Agreement, from time to time and will notify you of any updates to this Agreement via posting the updated terms to its website along with a “Last Updated” date, as well as using commercially reasonable efforts to notify you via mail, email, or other electronic communication. If you do not agree to the updated terms, you must contact NodeSource within thirty (30) days of the posting of such updated terms. NodeSource terminate this agreement and refund a prorated amount of fees due under this Agreement based upon the Term, if applicable. If you do not notify NodeSource within thirty (30) days of such an update and continues to access or use the NodeSource Services, you are indicating agreement to be bound by the updated terms.
7.4 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of California without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in San Francisco County, California (or such county in California as NodeSource shall select), pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party.
7.5 Force Majeure. Except for your obligation to pay Fees for the NodeSource Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern your use of the NodeSource Service, including NodeSource technology. You represent that you are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the NodeSource Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations. You agree to not conceal your IP address or otherwise mask your country of origin.
7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
7.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between NodeSource and you as a result of this Agreement or use of the NodeSource Service.
7.9 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
7.10 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
PART 2 – NSOLID ON PREMISE LICENSE AGREEMENT
Applies to use of N|Solid On Premise and NCM Desktop and NCM-CI/CLI Downloads
By clicking the “I accept” button or otherwise accepting this agreement as set forth in any online or printed Order Form referencing this Agreement, you and any company You represent agree to follow and be bound by the terms and conditions of this Agreement.
The following terms have the following meanings:
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means direct or indirect ownership of more than 50% of the voting interests of the Organization.
“Customer,” “you” and “your” means the Organization that signs an Order Form or downloads the Software.
“NodeSource,” “we” and “us” means the NodeSource, Inc., the company that signs an Order Form, or if you download our Software for a free trial.
“NodeSource Account” means the online registration that you establish with NodeSource to manage your products, settings, billing and organization
“N|Solid Licensed Software” means the software, tools, utilities, sample or example code, documentation, interfaces, content, data, and any other materials provided by NodeSource or an authorized NodeSource distributor and accompanying this Agreement in any form, including disk, print, or electronic. N|Solid Licensed Software does not include software provided to you by any source other than NodeSource.
“Order Form” means any online or written order form for an NSolid license submitted by you either during an online acceptance process or separately signed by you and submitted to NodeSource, and any future purchase order or order form that makes reference to this Agreement.
“Organization” means your legal entity or sole proprietorship for which you work, but can include other individuals from other entities that are collaborating with you on a specific project.
“Software” means the NSolid licensed software, and any other software included with your purchase, including any generally available updates to such software, but excluding open source software components, each of which has its copyright notice and license included in the license file and documentation.
“Support” During the term of the license, depending on the NodeSource product licenses you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and various levels of additional technical support resources (collectively, “Support”) for the NodeSource Service offered by NodeSource from time to time, the terms of conditions of which may be described and updated from time to time on https://www.nodesource.com/services/support. NodeSource reserves the right to modify the posted terms and conditions for Support, at any time at its sole discretion. Should you require Services beyond those provided for by your support tier, a new support agreement shall be executed to cover your additional support needs. You agree to report any support related issues in a timely manner.
2. NodeSource Products.
(a) Generally. We will provide you with the licenses, Software set forth on an Order Form. your Affiliates may purchase directly from us by signing an Order Form.
(b) N|Solid License.
(i) N|Solid Developer Tier License. If you purchase an N|Solid Developer Tier License, NodeSource grants you a nontransferable and nonexclusive license during the license term to individually use and reproduce the Software in your internal environment for individual purposes to run and monitor application processes as described on your Order Form. your ability to use the Software’s full capability for testing, quality assurance or production purposes without purchasing an Enterprise License is limited.
(ii) N|Solid Professional Tier License. If you purchase an N|Solid Professional Tier License, NodeSource grants you a nontransferable (except to your Affiliates) and nonexclusive license during the licensing term for the number of individuals within your organization listed on the Order Form to use and reproduce the Software in your internal environment for purposes to run and monitor application processes as described on your Order Form. your ability to use the Software’s full capability for testing, quality assurance or production purposes without purchasing an Enterprise License is limited.
(ii) N|Solid Enterprise Tier License. The terms of the Enterprise Tier License are outside of the scope of this Agreement and will be subject to separately agreed upon written terms.
(d) Third-Party Material. Portions of the N|Solid Software may include software, code, and copyrighted material from third parties, including open source projects. Acknowledgments, licensing terms, and disclaimers for such material are contained in the N|Solid Software and your use of the N|Solid Software is governed by such respective terms, in addition to the terms of this Agreement. A non-exhaustive list of such third-party material and their respective licenses is listed at https://www.nodesource.com/products/thirdpartymaterial, and such list may change from time to time based upon ongoing product development. Please contact NodeSource for the most updated list of included third-party material.
(e) Diagnostic Data. In order to assist in improving NodeSource’s products and services and as part of your license to use the N|Solid Software, you agree to allow NodeSource and its subsidiaries and agents to use, store, process, and analyze (collectively, “Analyze”) diagnostic, technical, usage, and other related information from the N|Solid Software and from computers and systems that use the N|Solid Software. The information Analyzed includes, but is not limited to, general diagnostic and usage data, hardware and software details, operating system specifications, performance statistics, usage case statistics, and networking data.
We will provide you with Support for the product tier you purchase in accordance with our generally applicable support policy available on our website.
4. Your Responsibilities.
You will not, and will not allow any third party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software; (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Software, provided you may use the Software in connection with an application available to your end customers as long as they cannot access the Software directly; (c) directly or indirectly circumvent or violate the technical restrictions of the Software; (d) remove any identification, proprietary, copyright or other notices in the Software or documentation; (e) modify or create a derivative work of any portion of the Software. You will comply with all applicable laws in connection with your use of Software, including any applicable U.S. Export Administration Regulations, anti-corruption laws and U.S. embargoes.
(a) Generally. The fees for the NSolid License (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. The fees for the Developer Tier are waived. If you have elected to purchase the Professional Tier, you agree to provide NodeSource with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or you otherwise provide NodeSource with credit card information, you authorize NodeSource to bill such credit card (a) at the time that you sign up for a paid NodeSource Account, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed license Term. If NodeSource, in its discretion, permits you to make payment using a method other than a credit card, NodeSource will invoice you at the time of the initial Order Form and thereafter on an annual or monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of your receipt of NodeSource’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
(b) Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on NodeSource’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent you are exempt from sales or other taxes, you agree to provide NodeSource, upon request, with the appropriate exemption certificate.
(c) Non-Payment; Other Suspension Rights. NodeSource may terminate the NodeSource license if the billing or contact information provided by you is false or fraudulent. NodeSource also reserves the right, in its discretion, to suspend your access and/or use of the NodeSource license: (i) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on your account as to who at your business has authority to act or manage your account and NodeSource is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, NodeSource may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, NodeSource may assume that the person or entity that has been making payments on your account has the authority to manage the account. You agree that NodeSource shall not be liable to you nor to any third party for any suspension of the NodeSource Service resulting from your non-payment of Fees or from a dispute as to the management rights to your account.
6. Intellectual Property.
(a) Retained Rights. NodeSource retains all right, title and interest in and to all Intellectual Property rights, including any patent, copyright, trademark, and trade secret rights, in the Software and any derivative works created therefrom. Nothing in this Agreement should be construed to grant you any of the foregoing Intellectual Property rights. Subject to Section 6, nothing in this Agreement shall be construed to inhibit, hamper, encumber, or otherwise impede NodeSource’s freedom to create modifications of, improve, or extend the Software or any other NodeSource product.
(b) Derivative Works. You are prohibited from enhancing, modifying, or preparing a derivative of the Software.
(c) Branding. This Agreement does not grant you permission to use the trade names, trademarks, service marks, or product names of NodeSource, except as required for reasonable and customary use in describing the origin of the N|Solid Software and reproducing the content of this Agreement. You may not mark or brand the Software with any trade name, trademark, service mark, or product name other than the original mark or brand (if any) provided by NodeSource.
(a) Definition. “Confidential Information” means any information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects and either designated by Discloser as confidential or that Recipient knows or has reason to know is confidential or proprietary based upon its treatment by Discloser. Confidential Information shall not include any information that: (a) was in Recipient’s lawful possession prior to the disclosure, as clearly and convincingly corroborated by written records, and had not been obtained by Recipient either directly or indirectly from Discloser; (b) is lawfully disclosed to Recipient by a third party without actual, implied or intended restriction on disclosure through the chain of possession, (c) is independently developed by Recipient without use of or access to the Confidential Information, as clearly and convincingly corroborated by written records, or (d) is or becomes generally available to the public (other than as a result of a disclosure by Recipient or its Affiliates in violation of this Agreement).
(b) Requirements. Recipient agrees that it shall not disclose to third parties or use in any way Discloser’s Confidential Information, other than in accordance with the terms of this Agreement. Recipient will disclose Confidential Information only to Recipient’s Employees having a need-to-know in order to use the N|Solid Software as provided for in this Agreement, provided Recipient shall have entered into confidentiality agreements with any such Employees having obligations of confidentiality as strict as those herein prior to the disclosure to such Employees and shall cause all such Employees to adhere to said confidentiality obligations. Recipient shall not, and shall not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Confidential Information. Recipient will promptly upon discovery of any loss or unauthorized use or disclosure of Confidential Information notify Discloser in writing and take all necessary steps to mitigate the loss or unauthorized use or disclosure of Confidential Information. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by Recipient as a matter of law or by order of a court, provided that Recipient provides Discloser with prior written notice of such obligation to disclose and reasonably assists in obtaining a protective order. Upon termination of this Agreement or earlier as requested by Discloser and at Discloser’s option and as applicable, Recipient shall deliver to Discloser, or destroy and certify in writing said destruction of, any and all materials, documents or other media (whether maintained electronically or otherwise) containing Confidential Information, together with all copies thereof in whatever form. You may, from time to time, provide suggestions, enhancement or feature requests, or other feedback to NodeSource with respect to the Software or other NodeSource products, services, or related materials (whether or not such information is disclosed or delivered by NodeSource to you under this Agreement) (“Feedback”). You agree that all Feedback is and shall be given by you entirely voluntarily. NodeSource shall be free to use, disclose, reproduce, license, or otherwise distribute and exploit the Feedback at its discretion, without restriction or obligation of any kind or nature. Feedback, even if designated as confidential by you, shall not create any obligation of confidentiality for NodeSource, unless NodeSource expressly agrees so in writing.
(a) Software. Subject to Section 9, NodeSource represents and warrants that (a) it is the lawful owner or licensor of the Software, that the Software has been lawfully developed or acquired by NodeSource, and NodeSource has the right to grant you the rights to the Software under this Agreement; (b) the Software does not infringe any patent, copyright, trademark, mask work, or trade secrets of third parties, or violate the privacy of any third party from whom NodeSource may obtain any information in connection therewith; (c) NodeSource will use commercially reasonable efforts to scan the Software for, and will remove from the then-current version of the Software, any computer virus, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction, or design that would cause damage to or otherwise adversely affect any of your systems; and (d) the Software will operate and conform to any and all documentation and specifications provided with the Software.
(c) Exclusions. The indemnity and warranties provided for in this Agreement by NodeSource do not extend to claims arising from or related to: (1) use of or modification of the Software in a manner not authorized in writing by NodeSource, (2) use of the Software under a Development License, (3) use of the Software in combination with data, software, or hardware not provided by NodeSource or authorized in writing by NodeSource to the extent that the alleged infringement would not have occurred without the combination, or (4) allegedly infringing activities that took place related to the Software after NodeSource provided you with a version of the Software that would have avoided the alleged infringement.
(d) DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AND LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NODESOURCE EXPRESSLY DISCLAIMS AND MAKES NO OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NODESOURCE DOES NOT WARRANT OR GUARANTEE THAT THE USE OF THE N|SOLID SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. ANY GUARANTEE OR WARRANTY SET FORTH IN THIS AGREEMENT, BUT NOT THE EXCLUSIONS, WAIVERS, OR LIMITATIONS OF REMEDIES CONTAINED HEREIN, SHALL BECOME NULL AND VOID IF LICENSEE MODIFIES THE SOFTWARE.
9. Limitation of Liability.
IN NO EVENT WILL NODESOURCE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, LICENSEE’S USE OR INABILITY TO USE THE N|SOLID SOFTWARE, OR YOUR DEVELOPMENT, ANALYSIS, AND TESTING EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, INFRINGEMENT, OR OTHERWISE, EVEN IF NODESOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL NODESOURCE’S TOTAL LIABILITY TO LICENSEE UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE LESSOR OF THE THREE TIMES AMOUNT PAID BY LICENSEE TO NODESOURCE UNDER THIS AGREEMENT OR $100,000. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(a) Customer Indemnification. Customer will defend and indemnify NodeSource from and against all third-party claims to the extent resulting from the infringement of a third party’s intellectual property or other right by software, hardware, content, or data used by Customer in connection with the Software. Customer will have no obligation to defend or indemnify NodeSource if the claim is based on NodeSource’s unauthorized changes to Customer’s content, data or other information.
(b) NodeSource Indemnification. NodeSource will defend and indemnify Customer from and against all third-party claims to the extent resulting from the Software’s infringement of a third party’s intellectual property right. NodeSource will not be obligated to defend or indemnify Customer if the claim is based on: (i) combination of the Software with other software, content, data or business process not contemplated by documentation; (ii) use of any older release of the Software when use of a newer revision would have avoided the infringement; (iii) any modification of the Software made by anyone other than NodeSource; or (iv) NodeSource's compliance with any materials, designs, specifications or instructions provided by Customer.
(c) Infringement Remedies. If the Software becomes, or in NodeSource’s opinion is likely to become, the subject of an infringement claim, NodeSource will at its option and expense and as Customer’s sole and exclusive remedy: (i) procure for Customer the right to make continued use of the Software; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate Customer’s license to the Software and refund a prorated portion of the prepaid but unused fees paid for the applicable license.
(d) Indemnification Procedures. Each party will provide the other with prompt notice of any claim. A party’s failure to provide prompt notice to the other party relieves the party of its obligation to defend and indemnify the other party only to the extent that the failure to provide notice materially harms the party’s ability to defend the claim. The indemnifying party will control the defense of the claim, including any settlement. The indemnified party will provide the indemnifying party with reasonable cooperation in connection with the defense of the claim, and may participate in the defense at its own expense. This Section 10 sets forth each party’s exclusive remedy for any third party infringement claim.
11. Term and Termination.
This Agreement starts on the date that the parties sign an Order Form, or you download our Software for a free trial, and continues until either party terminates this Agreement in accordance with this Section 11. If all Order Forms and SOWs under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing 30 days’ prior written notice. You may not terminate an Order Form for convenience. Either party may terminate this Agreement and any applicable Order Form if the other party materially breaches this Agreement and does not cure such breach within 30 days after receipt of written notice of the breach. Provisions intended by their nature to survive termination of this Agreement survive termination. During the term and one year following termination, we may inspect your records relating to your use of the Software for the purposes of verifying compliance with this Agreement.
NodeSource may update the terms of this Agreement, including terms located at any URL referenced in this Agreement, from time to time and will notify Customer of any updates to this Agreement via posting the updated terms to its website along with a “Last Updated” date, as well as using commercially reasonable efforts to notify Customer via mail, email, or other electronic communication. If Customer does not agree to the updated terms, Customer must contact NodeSource within thirty (30) days of the posting of such updated terms. NodeSource will terminate this Agreement and refund any prorated amount of fees due based upon the time remaining on the license, if applicable. If Customer does not notify NodeSource within thirty (30) days of such an update and continues to access or use the N|Solid Software, Customer is indicating that it agrees to be bound by the updated terms.
Notices under this Agreement will be in writing and effective on the delivery date. The parties will deliver notices by personal delivery or overnight courier to the address of the other party set forth on the Order Form. California law governs this Agreement, excluding any applicable conflict of laws rules or principles, and the parties agree to the exclusive jurisdiction of the courts in San Francisco County, California. This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by you without our prior written consent will be null and void, except an assignment to an Affiliate or in connection with a merger or sale of all or substantially all of your assets or stock, provided that you may not transfer this Agreement to an Affiliate that is a competitor of ours without our prior written consent. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to effect the parties’ intention and the remaining provisions will not be affected. The parties may amend this Agreement only in a written amendment signed by both parties. In the event of any inconsistency between this Agreement and the Order Form, the terms of the Agreement shall take precedence. The parties may sign this Agreement electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document. This Agreement and any Order Form comprise the parties’ entire agreement relating to the subject matter of this Agreement, and any reference to or use of a purchase order is for convenience, and any terms that govern the purchase order are of no effect. Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control.