NIGHTHAWK.CLOUD

SOFTWARE AS A SERVICE

TERMS & CONDITIONS

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This Agreement governs your license to and use of our services:

 

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, OR USING ANY SUBSCRIPTION SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES. IF YOU REGISTER FOR USE OF A FREE TRIAL OR FREE VERSION OF THE SUBSCRIPTION SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.

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The Customer and Nighthawk.cloud, Inc. (“Nighthawk”) agree that the terms and conditions set forth below shall apply to use of the commercially available version of the Nighthawk.cloud, Inc. Software as a Service (“SaaS”) application suite (the “Application”), and all services related thereto. The Application shall be delivered by means of Cloud based Customer user access to the Nighthawk SaaS infrastructure using appropriate logon credentials provided by Nighthawk.cloud, Inc. The terms and conditions described below shall be binding upon Customer and Nighthawk.cloud, Inc. hereinafter referred to as the “Agreement”.

Nighthawk.cloud, Inc. and Customer hereby agree that Nighthawk.cloud, Inc. and/or its direct and indirect subsidiaries may enter into orders with Customer and/or its direct and indirect majority owned subsidiaries subject to the terms and conditions of this Agreement. Any subsidiary of Nighthawk.cloud, Inc. and/or Customer signing and entering into agreement under this Agreement will be bound by the terms and conditions of this Agreement, wherein references to “Nighthawk” shall be references to the applicable Nighthawk.cloud, Inc. subsidiary and references to “Customer” shall be references to the applicable Customer subsidiary.

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1 Definitions

“Acceptable Use Policy” means a policy that sets forth restrictions of acceptable usage of the Application as

detailed in the Acceptable Use Policy labeled Exhibit B.

“Agreement” means all terms and conditions contained in this document and any related documents.

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“Application(s)” or “SaaS Application(s)” means the Nighthawk.cloud, Inc. software application program(s) which are made accessible for Customer use under the terms of this Agreement.

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“Billing Start Date” means the date the billing of the Service Fees commences; wherein the Agreement is signed within the 1st half of a calendar month, the Initial Term will begin on the 1st of the following month; wherein the Agreement is signed within the 2nd half of the calendar month, the Initial Term will begin on the 15th of the following month. Notwithstanding, the Implementation Services provided on a time and material basis are billed as delivered. The Billing Start Date of the Service Fees for any Services ordered by Customer after the date of this Agreement, which are incremental to Customer’s then-existing Services, shall be the date executed by Nighthawk.cloud, Inc. and Customer.

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“Criminal Justice Information (CJI)” means criminal justice information as defined by the FBI Criminal Justice Information Systems Security Policy, which can be found at https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center.

 

“CJIS Compliant” means a system that complies with the FBI Criminal Justice Information System Services (CJIS) Security Policy found at https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center.

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“Cloud Services” means those services related to the Nighthawk Cloud service.

 

“Confidential Information” means any non-public information of a party or its Suppliers relating to such personally identifiable information, business activities, financial affairs, technology, marketing or sales plans that are disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary or confidential to the disclosing party or its Suppliers.

 

“Customer Content” means all content Customer, or others acting on behalf of or through Customer, posts, uploads or otherwise inputs into the Services.

 

“Data Storage” means the storage provided to the Customer for uploading data for use with the Application.

 

“Documentation” means user manuals, training videos or materials, tutorials, custom search or operative functions, and help-pages published by Nighthawk.cloud, Inc. relating to the features and functionality of the Applications

 

“Implementation Services” means those professional and educational services provided by Nighthawk.cloud, Inc. to set up the cloud environment and configure the Applications. Nighthawk.cloud, Inc. will provide, as part of the Service Fee for the Applications, the fixed fee, fixed scope Implementation Services.

 

“Example Data” mean any example data intended for use or eventual use by the Service provided directly to Nighthawk.cloud, Inc. or through the Issue reporting portion of the Service and not as part of the normal use of the Service for the purposes of enhancing or maintaining the Service.

 

“Initial Term” means the initial billing term of the Services. The Initial Term commences on the Billing Start Date as defined. Unless otherwise stated, the Initial Term shall be for one (1) year. Customer may have access to the Services prior to the commencement of the

Initial Term at the sole discretion of Nighthawk.cloud, Inc.

 

“Minimum Contract Value” means the total of all Service Fees to be invoiced during the Initial Term or a Renewal Term, as applicable.

 

“Personally Identifiable Information” or “PII” are used interchangeably and means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation.

 

“Renewal Term” means the renewal billing term of the Services. If no Renewal Term is stated, it shall be equal to the length of the Initial Term.

 

“Sales Agreement” or “Quote” means the written Nighthawk.cloud, Inc. form used to describe the cost of Services, Implementation Services, Training, Technical Support, Data Storage, and any/all other services offered to the Customer.

 

“Service Fee(s)” include fees for usage of the Applications and the Services, Cloud Services as applicable, and Equipment rental, if any. Billing of the Service Fee(s) commences on the Billing Start Date.

 

“Service(s)” means (i) the Cloud Services, (ii) accessibility to the commercially available version of the Applications by means of access to the password protected Nighthawk website, and all such services, items and offerings provided to Customer.

 

“Supplier” means any contractor, subcontractor or licensor of Nighthawk.cloud, Inc. providing software, equipment and/or services to Nighthawk.cloud, Inc. which are incorporated into or otherwise related to the Services. Nighthawk.cloud, Inc. may at its sole discretion replace a Supplier, provided that a change to Supplier will not have a materially adverse effect on the Services delivered by Nighthawk.cloud, Inc. under this Agreement.

 

“Technical Support” means assistance provided by Nighthawk.cloud, Inc. personnel to Customer user(s) in support of using Services, product workflows, data analysis, data import issues, and any other requested support provided by Nighthawk.cloud, Inc. personnel. Refer to the section titled “Technical Support Services”

for a detailed description of support hours included yearly and option to purchase additional support hours. Technical Support provided to Customer user(s) that results in Nighthawk.cloud, Inc. determining the support was needed only because of a defect in the Services will not be charged/debit the Customer Technical Support hours balance.

 

“Term” means the Initial Term of service and any Renewal Terms thereafter.

 

“Training” means scheduled classroom-like sessions provided by a qualified Nighthawk.cloud, Inc. trainer to instruct in the proper usage and features of the Services. Trainings can include, but are not limited to, in-person, remote, and/or prerecorded.

 

"You" or "Your" or "Subscriber" or "Customer" means the subscriber named on the Service Order or, for online orders, the company or other legal entity on whose behalf the individual indicating acceptance of this Agreement is acting. Any of Subscriber’s Affiliates may enter into a Service Order that references this Agreement directly with Nighthawk and, for purposes of such Service Order, the Affiliate signing the Service Order will be considered “you”, “your”, “Subscriber”, and "Customer."

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2 TERM

Billing for the Services commences on the Billing Start Date and continues for the Initial Term or until terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for an additional Renewal Term until terminated in accordance with the provisions hereof.

Customer may terminate the Services and this Agreement for convenience upon sixty (60) days prior written notice subject to Customer’s payment of all fees and charges accrued through the termination date. Nighthawk.cloud, Inc. may terminate the Services and this Agreement for any reason, to be effective at the expiration of the then current Term upon no less than sixty (60) days prior written notice.

Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice.

In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.

In the event that Nighthawk.cloud, Inc. terminates for convenience, Nighthawk.cloud, Inc. shall refund paid fees for unused pre-paid additional Technical Support, Training, Data Storage, and a pro-rated portion of the paid Service Fees for the remaining period through the Term. Nighthawk.cloud, Inc. shall provide a report of services utilized and a calculation showing the proration of Service Fees to be returned.

If the Agreement is terminated for any reason:

Customer shall pay Nighthawk.cloud, Inc. within thirty (30) days of such termination, all fees accrued and unpaid under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by Nighthawk.cloud, Inc. shall refund Customer any pre-paid fees for Services not delivered by Nighthawk.cloud, Inc. right to access and use the Applications shall be revoked and be of no further force or effect; Customer agrees to timely return all materials related to the Services to Nighthawk.cloud, Inc. at the time of termination or, alternatively, destroy such materials and provide Nighthawk.cloud, Inc. with certification of the destruction thereof; and All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.

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Customer Content shall be available to Customer to retrieve at any time and at no additional charge throughout the Term and for no more than fifteen (15) days after expiration or termination of the Agreement for any reason. After such time period, Nighthawk.cloud, Inc. shall have no further obligation to store or make available the Customer Content and will securely delete all Customer Content without liability of any kind.

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3 FEES AND PAYMENT

Customer shall pay Nighthawk.cloud, Inc. the Service Fees, to include the fees for Implementation Services and any additional one time or recurring fees for Equipment, Training, Data Storage, Technical Support, and other Nighthawk.cloud, Inc. offerings as set forth in the Sales Agreement. The Service Fees will be invoiced on the frequency set forth in the Sales Agreement. All other Nighthawk.cloud, Inc. offerings will be invoiced upon execution of the Sales Agreement by Nighthawk.cloud, Inc. and Customer. Unless otherwise specified on the Sales Agreement, payment for all items shall be due thirty (30) days following date of invoice. All payments shall be sent to the attention of Nighthawk.cloud, Inc. as specified on the invoice. Nighthawk.cloud, Inc. may charge interest for any amounts overdue at the lesser of 1.5% per month or the highest rate allowable by applicable law. Customer shall be responsible for all costs (including reasonable attorneys’ fees and court costs) associated with enforcement and collections of these amounts. Except as expressly set forth in this Agreement, all amounts paid to Nighthawk.cloud, Inc. are non-refundable. Customer is responsible for all applicable federal, state, country, provincial or local taxes relating to the goods and services provided by Nighthawk.cloud, Inc. hereunder (including without limitation GST and/or VAT if applicable), excluding taxes based on Nighthawk.cloud, Inc. income or business privilege. If any amount owing under this or any other agreement between the parties is overdue, Nighthawk.cloud, Inc. may, without limiting Nighthawk.cloud, Inc. rights or remedies, suspend Services until such amounts are paid in full. Nighthawk.cloud, Inc. will provide at least seven (7) days’ prior written notice that Customer’s account is overdue before suspending Services. Customer agrees that except if Customer terminates for material breach of the Agreement by Nighthawk.cloud, Inc. if Customer has not paid the Minimum Contract Value to Nighthawk.cloud, Inc. prior to the expiration or termination of the Initial Term or a Renewal Term, as applicable, Customer shall pay within thirty (30) days of the date of such expiration or termination, any discounted amounts granted by Nighthawk.cloud, Inc. in recognition of the extended term Agreement.

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4 RIGHTS TO USE

Subject to the terms and conditions of the Agreement, Nighthawk.cloud, Inc. hereby grants Customer a limited, revocable, non-exclusive, non-transferable (except to its parents, subsidiaries, or entities under common control), non-assignable right to use during the Term and for internal business purposes only: (a) the Applications and related services, including the Documentation; and (b) any embedded third party software, libraries, or other components, which form a part of the Services. The Services contain proprietary trade secret technology of Nighthawk.cloud, Inc. and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer shall not use any of the third-party software programs (or the data models therein) included in the Services except solely as part of and in connection with the Services. Customer acknowledges that execution of separate third-party agreements may be required in order for Customer to use certain add-on features or functionality.

Customer acknowledges and agrees that the right to use the Applications is limited based upon the amount of the Service Fees paid by Customer. Customer agrees to use only the modules and/or features for the number of employees and users as described on the Sales Agreement. Customer agrees not to use any other modules or features nor increase the number of employees and users unless Customer pays for such additional modules, features, employees or users, as the case may be. Customer may not license, relicense or sublicense the Services, or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Nighthawk.cloud, Inc. No license, right, or interest in any Nighthawk.cloud, Inc. trademark, trade name, or service mark, or those of Nighthawk.cloud, Inc.’s licensors or Suppliers, is granted hereunder.

Customer may authorize its third-party contractors and consultants to access the Services through Customer’s administrative access privileges on an as needed basis, provided Customer: (a) abides by its obligations to protect Confidential Information as set forth in this Agreement; (b) remains responsible for all such third-party usage and compliance with the Agreement; and (c) does not provide such access to a competitor of Nighthawk.cloud, Inc. who provides or produces data analysis software or services.

Customer acknowledges and agrees that, as between Customer and Nighthawk.cloud, Inc., Nighthawk.cloud, Inc. retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or Applications or any associated intellectual property rights in any of the foregoing. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.

When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations. Customer is solely responsible for (i) the content and accuracy of all reports and documents prepared in whole or in part by using these Applications, (ii) using these Applications does not release Customer of any professional obligation concerning the preparation and review of any reports and documents, (iii) Customer does not rely upon Nighthawk.cloud, Inc. or these Applications for any advice or guidance regarding compliance with federal and state laws, and (iv) Customer will review any products made by using these Applications and satisfy itself that those products are correct and accurate. The Software, all intellectual property and/or proprietary rights relating to or embodied therein and all copies of the Software, are owned by Nighthawk.cloud, Inc. or its suppliers and are protected by applicable patent and copyright laws and international treaty provisions. Nighthawk.cloud, Inc. reserves all rights not expressly granted to Customer in Section 4 above and no license or rights are granted by implication, estoppel or otherwise. Customer may not remove, add to, or alter, any of the trademarks, trade names, logos, patent or copyright notices or proprietary markings in the Software. Customer may not adopt, use or register any trademark, trade name or other marketing name of Nighthawk.cloud, Inc. or any of its affiliates, nor use any confusingly similar trademark, trade name or other marketing name. With respect to any suggestions or recommendations by Customer to Nighthawk.cloud, Inc. regarding proposed additional features, functionality, performance options or other modifications to Nighthawk.cloud, Inc.’s proprietary products or services, Customer hereby grants Nighthawk.cloud, Inc. a worldwide, non-exclusive, royalty-free, perpetual right and license to develop, use and exploit such suggestions or recommendations, including without limitation the integration of such features and functionality, in whole or in part, into Nighthawk.cloud, Inc.’s proprietary products and services without the need to account for the same to Customer. Customer acknowledges that any and all products and services incorporating such new features, functionality, or performance shall be the sole and exclusive property of Nighthawk.cloud, Inc. and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon Nighthawk.cloud, Inc. pursuant to this Agreement or other agreement between the parties. Customer acknowledges that any Example Data provided directly to Nighthawk.cloud, Inc. or through the Issue reporting feature built into the Nighthawk.cloud, Inc. platform, via email, direct upload, or provided on physical media in order to facilitate the addition of new features, suggestions, to illustrate defects, or to incorporate new data sources to the software/service is provided without limitation and that Nighthawk.cloud, Inc. may retain, use, and display such data without restriction in perpetuity unless restrictions on use of Example Data are noted at the time of delivery of the Example Data.

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5 ACCEPTABLE USE

Customer shall ensure that no unauthorized persons have access to the Services and ensure that no authorized persons having access shall take any action that would be in violation of this Agreement or any laws or regulations. Customer is responsible for all activities undertaken under the auspices of its passwords and other login credentials in use of the Services. Customer represents and warrants to Nighthawk.cloud, Inc. that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to Nighthawk.cloud, Inc. that the Customer Content will comply with the Acceptable Use Policy in Exhibit B. Customer will not (a) use, or allow the use of, the Services in contravention of the Acceptable Use Policy in Exhibit B. Nighthawk.cloud, Inc. may suspend the Services immediately upon written notice in the event of any security risk, negative impact on infrastructure or Acceptable Use Policy violation.

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6 CONNECTIVITY AND ACCESS

Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, networking, internet access, third party services and related equipment and components); and (b) provide Nighthawk.cloud, Inc. and representatives with such physical or remote access to and network environment as Nighthawk.cloud, Inc. deems reasonably necessary in order for Nighthawk.cloud, Inc. to perform its obligations under the Agreement. Customer will make all necessary arrangements as may be required to provide access to computer and network environment as needed for Nighthawk.cloud, Inc. to perform its obligations under the Agreement. Customer acknowledges that the Service functions under the Google Chrome or Microsoft Edge web browsers only and that installation of the Google Chrome or Microsoft Edge browser is a pre-requisite for use of the Service.

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7 IMPLEMENTATION AND SUPPORT

 

7.1 Implementation Services

Nighthawk.cloud, Inc. will provide the Implementation Services to Customer. Nighthawk.cloud, Inc. will configure the Applications based on information and workflows provided by Customer during the implementation activity. Customer shall provide Nighthawk.cloud, Inc. with accurate and complete configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met. If Customer requests additional Implementation Services beyond those described in the Sales Agreement, Nighthawk.cloud, Inc. will create a change order for Customer review and approval of additional Implementation Services, which will then be provided by Nighthawk.cloud, Inc. and billed at the then-current Nighthawk.cloud, Inc. professional services rates at completion of work.

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7.2 Additional Services

Customer may engage Nighthawk.cloud, Inc. to provide other services which may be identified on the Sales Agreement or through an additional engagement letter defining the requested services and associated fees.

7.3 Support

Nighthawk.cloud, Inc. will provide technical support for the cloud infrastructure and the availability to the cloud environment. Nighthawk.cloud, Inc. will provide telephone support for the logging of functional problems and user problems during normal business hours. Customer may log questions or report problems online via the Issue reporting functions of the Nighthawk platform or by email. As part of such support, Nighthawk.cloud, Inc. will make updates to the Services available to Customer at no charge. Updates are released generally so that Nighthawk.cloud, Inc. may install critical security patches and infrastructure updates automatically as part of the Services. Details of support services and response times are provided in the Service Level Agreement in Appendix A.

7.4 Technical Support Services

Nighthawk.cloud, Inc. provides technical support services to assist the Customer with various product workflows, data analysis, data importation issues, etc. Support for system problems and defects are not billed as technical support hours. The annual Service Fees may include technical support hours for each year in the term of service, which will expire if not used within the year they are allocated, as detailed in the Sales Agreement. Additional/optional pre-purchase support hours may be included in the Sales Agreement and these specific hours if unused will roll over from year to year through the Term of service. Additional/optional pre-purchased support hours will expire at the end of the term of service if not used and will not be refunded. See the Sales Agreement for details on included and pre-paid support hour quantity limitations. Support hours are billed to the 1⁄4 (one quarter) hour per support engagement.

7.5 Training Courses

When training sessions are set forth in the Sales Agreement, the Agreement applies. Participation in such training courses is limited to the number of seats indicated for the courses corresponding to the modules forming a part of the Services purchased by Customer.
If travel is required for Customer to attend training at a Nighthawk.cloud, Inc. supplied venue Customer is responsible for all expenses related to travel and accommodations to attend the training session.

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7.6 Customer Authorization for Nighthawk to Communicate Directly with Users

Customer acknowledges that communication directly with system users is required for operation of the Service and to keep users informed of changes, enhancements, system status, system events, user support, and for the overall security of the system.  Customer specifically authorizes Nighthawk and its staff to communicate with all users of the system in these regards with electronic, voice, or video systems as required.  Such authorized methods include but are not limited to: email, text messages, push notifications, voice calls, and video teleconference software.  

 

Nighthawk will ensure that all automated communications will be solely for the purposes listed above.  Users may opt out of mailing lists that include feature enhancements or marketing materials using the “unsubscribe” link contained within such emails.  Users may not opt out of system generated automatic communications as they are essential for the operation of the system.

 

8 CUSTOMER CONTENT/DATA

Customer shall own all Customer Content/Data. Nighthawk.cloud, Inc. acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Customer will ensure that all Customer Content conforms with the terms of this Agreement and applicable law. Nighthawk.cloud, Inc. and its Suppliers may, but shall have no obligation to, access and monitor Customer Content from time to time to provide the Services and to ensure compliance with this Agreement and applicable law. Customer is solely responsible for any claims related to Customer Content and for properly handling and processing notices that are sent to Customer regarding Customer Content. Customer agrees that Nighthawk.cloud, Inc. staff, while in the performance of their official duties, and Nighthawk.cloud, Inc. are acting as official agents of the Customer in relation to storing, processing, analyzing, or possessing customer content/material that would be deemed illegal or sexually exploitative and to hold Nighthawk.cloud, Inc. and its staff harmless against all statutes and applicable laws against possession of such materials while providing official support or service to Customer’s organization provided the content/materials are used, handled, or processed for official purposes of the Customer or in the ongoing operation and maintenance of the service.

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9 SERVICE LEVEL AGREEMENT

Nighthawk.cloud, Inc. shall provide the service levels and associated credits, when applicable, in accordance with the Service Level Agreement attached hereto as Exhibit A and which is hereby incorporated herein by reference. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE OR INTERRUPTION OF THE SERVICES OR FAILURE BY NIGHTHAWK.CLOUD, INC. TO MEET THE TERMS OF THE APPLICABLE SERVICE LEVEL AGREEMENT, SHALL BE THE REMEDIES PROVIDED IN EXHIBIT A.
10 LIMITED WARRANTY; DISCLAIMERS OF WARRANTY

 

Nighthawk.cloud, Inc. represents and warrants to Customer that the Applications, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term.
Nighthawk.cloud, Inc. sole obligation and Customer sole and exclusive remedy for any breach of the foregoing warranty is limited to reasonable commercial efforts to correct the non-conforming Services at no additional charge to Customer. In the event Nighthawk.cloud, Inc. is unable to correct material deficiencies in the Services arising during the Warranty Period after using commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer sole and exclusive remedy and receive a prorated refund for Services paid but not performed from the time of the violation of section 10 paragraph 1. Nighthawk.cloud, Inc. obligations hereunder for breach of warranty are conditioned upon Customer notifying Nighthawk.cloud, Inc. of the material breach in writing and providing Nighthawk.cloud, Inc. with sufficient evidence of such non-conformity to enable Nighthawk.cloud, Inc. to reproduce or verify the same.

 

EXCEPT AS PROVIDED FOR IN THIS SECTION 10, NIGHTHAWK.CLOUD, INC. HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT MAY OTHERWISE ARISE PURSUANT TO ANY STATUTE, CODE, COMMON LAW OR JUDICIAL DECISION. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NIGHTHAWK.CLOUD, INC. MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE SAAS APPLICATIONS OR THE EQUIPMENT NOR ANY RESULTS TO BE ACHIEVED THEREFROM.

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11 DATA AND SERVICE SECURITY

As part of the Services, Nighthawk.cloud, Inc. shall provide those administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer CJI data to CJIS Compliant standards for the offered Service. Customer acknowledges that no set of safeguards are fully effective in an environment. Both parties acknowledge that there is a persistent threat from unanticipated or unknown vulnerabilities. Customer must consider that the supplied security-related safeguards are just one tool in the Customer’s overall security strategy. Both parties agree to comply with all applicable privacy and/or data protection statutes, rules, and regulations that govern the activities of the parties under the Agreement.
Nighthawk.cloud, Inc. acknowledges that all uploaded, entered, posted, PII, and CJI data will remain the property of Customer. Customer represents that to the best of its knowledge the data entered into the Nighthawk.cloud, Inc. Application(s) is accurate and was lawfully obtained. Customer hereby consents to the use, processing and/or disclosure of supplied data only for the purposes described herein and only to the extent that such use or processing is necessary for Nighthawk.cloud, Inc. to carry out duties and responsibilities under the Agreement or as required by law.
Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer agrees to provide notice to Nighthawk.cloud, Inc. of any extraordinary privacy or data protection statutes, rules, or as a result of provision of the Services. Customer will ensure that: (a) the transfer to Nighthawk.cloud, Inc. and storage of data is permitted under applicable laws and regulations; and (b) Customer will obtain consent from affected parties for such transfer and storage of data to the extent required by applicable laws and regulations.
All cloud infrastructure used to host the Nighthawk Application(s) instance/enclave will be located within the United States and shall be available only to legal entities of the United States. Foreign entities or users would be directed to a separate instance/enclave if such a need arises in the future.

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12 INDEMNIFICATION

Nighthawk.cloud, Inc. shall defend Customer and its respective directors, officers, and employees (collectively, the “Customer Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States copyright or patent, and Nighthawk.cloud, Inc. will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of Nighthawk.cloud, Inc. settlement of such a Claim. In the event that a final judgement is obtained against Customer’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in Nighthawk.cloud, Inc.’s opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, Nighthawk.cloud, Inc., at Nighthawk.cloud, Inc.’s option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement, (b) replace or modify the Services so that the Services become non-infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Service Fees paid by Customer for the infringing elements of the Services covering the period of their unavailability.

Nighthawk.cloud, Inc. shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than Nighthawk.cloud, Inc.; (b) use of the Applications other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by Nighthawk.cloud, Inc., where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Customer other than in accordance with the terms of the Agreement. Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to Nighthawk.cloud, Inc. or Suppliers, Nighthawk.cloud, Inc.’s maximum liability will be to assign to Customer Nighthawk.cloud, Inc.’s or Supplier’s recovery rights with respect to such infringement claims, provided that Nighthawk.cloud, Inc. or Nighthawk.cloud, Inc.’s Supplier shall use commercially reasonable efforts at Customer’s cost to assist Customer in seeking such recovery from such licensor.

Customer shall defend Nighthawk.cloud, Inc., its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “Nighthawk.cloud, Inc. Indemnified Parties”) from and against any and all Claims, and will indemnify and hold harmless the Nighthawk.cloud, Inc. Indemnified Parties against liabilities, obligations, costs or expenses (including without limitation reasonable attorney’s fees), arising out of: (a) employment-related claims arising out of Customer’s configuration of the Services; (b) Customer’s modification or combination of the Services with other services, software or equipment not furnished by Nighthawk.cloud, Inc., provided that such Customer modification or combination is the cause of such infringement and was not authorized by Nighthawk.cloud, Inc.; or, (c) a claim that the Customer Content (i) infringes in any manner any intellectual property right of any third party, (ii) contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or (iii) has otherwise caused or resulted in any tort, injury, damage or harm to any other person, including without limitation, subjecting such third party to criminal or civil investigation, prosecution, or conviction.

The indemnified party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay’s impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable indemnified parties without the prior written consent of the other party. The indemnified parties shall cooperate fully, at the indemnifying party’s request and expense, with the indemnifying party in the defense, settlement, or compromise of any such action. The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party’s rights above.

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13 LIMITATION OF LIABILITY

EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NIGHTHAWK.CLOUD, INC. AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES.

ABOVE, THE TOTAL AGGREGATE LIABILITY OF NIGHTHAWK.CLOUD, INC., ITS SUPPLIERS AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH LIABILITY NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED FROM CUSTOMER BY NIGHTHAWK.CLOUD, INC. FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.

NEITHER PARTY THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER NIGHTHAWK.CLOUD, INC. OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE

EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF NEGLIGENCE OR WILLFUL MISCONDUCT, NIGHTHAWK.CLOUD, INC. DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CUSTOMER’S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.

 

14 CONFIDENTIAL INFORMATION

Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties the other party’s Confidential Information or use it for any purpose not explicitly authorized herein, without the prior written consent of the other party. The obligation of confidentiality shall survive for five (5) years after the return of such Confidential Information to the disclosing party or five (5) years after the expiration or termination of the Agreement, whichever is later, as applicable. Notwithstanding anything herein to the contrary, each party acknowledges and agrees that all trade secrets shall be safeguarded by a receiving party as required by this Agreement for so long as such information remains a trade secret pursuant to applicable law.

Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement with obligations at least as stringent as this Section 14, or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 14, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.

This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the receiving party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Information.
 

15 FREE TRIALS
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Free Trials Defined. From time to time, we may offer trials of the Subscription Services for a specified period of time without payment or at a reduced rate (each, a "Free Trial"). 

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Terms Specific to Free Trials. If you work with us to arrange a Free Trial, we will make the Subscription Services available to you under the Free Trial until the earlier of: (a) the end of the Free Trial period for which we have agreed to use the Subscription Services; (b) the start date of a paid subscription for such Subscription Services under a Service or Purchase Order; or (c) termination by us in our sole discretion. Additional Free Trial terms and conditions may appear on the Free Trial registration web page and are incorporated into this Agreement by this reference and are legally binding. We reserve the right, in our sole discretion, to determine your eligibility for a Free Trial, and to withdraw or to modify a Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under applicable laws. You may use the Subscription Services provided under a Free Trial solely for the purpose of evaluating the Subscription Services to determine whether to purchase a paid subscription for such Subscription Services. You may not use the Subscription Services provided under the Free Trial for any other purpose, including for competitive analysis.

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ANY DATA YOU ENTER INTO THE SUBSCRIPTION SERVICES, AND ANY CONFIGURATION CHANGES MADE TO THE SUBSCRIPTION SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES PROVIDED UNDER THE FREE TRIAL, OR YOU EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL PERIOD. NOTWITHSTANDING SECTION 10 (WARRANTIES AND DISCLAIMER) OF THIS AGREEMENT, FREE TRIALS AND FREE VERSIONS OF THE SUBSCRIPTION SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY. NIGHTHAWK WILL HAVE NO DEFENSE OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 (NIGHTHAWK INDEMNIFICATION) WITH RESPECT TO FREE TRIALS OR FREE VERSIONS.

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16 GENERAL

This Agreement shall be governed by and construed in accordance with the laws of the state of Colorado, without regard to any conflict of law provisions. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement and waive and “opt out” of the Uniform Computer Information Transactions Act, or such other similar law.

The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.

The rights and obligations of Nighthawk.cloud, Inc. under this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Nighthawk.cloud, Inc., provided that such successor or assign shall acquire all or substantially all of the securities or assets and business of the (via merger or otherwise). The Customer’s obligations hereunder may not be assigned or alienated and any attempt to do so by the Customer will be void.

 

Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseen control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefore, or lack of or delay in transportation (each a “Force Majeure Event”).

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to implement the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. To the extent the Parties cannot agree on the modification to this Agreement, the court will modify this Agreement so as to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

All notices given under the Agreement shall be in writing and sent postage pre-paid, if to Nighthawk.cloud, Inc., to the Nighthawk.cloud, Inc. address on the Sales Agreement, or if to Customer, to the billing address on file.

 

The section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.

 

The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.

This Agreement and any information expressly incorporated by reference herein constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this The rights and obligations of Nighthawk.cloud, Inc. under this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Nighthawk.cloud, Inc., provided that such successor or assign shall acquire all or substantially all of the securities or assets and business of the (via merger or otherwise). The Customer’s obligations hereunder may not be assigned or alienated and any attempt to do so by the Customer will be void.

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Agreement. This Agreement may not be amended or modified by either party except by mutual written agreement and signed by both parties. Customer understands and acknowledges that while Nighthawk.cloud, Inc. may disclose to customers certain confidential information regarding general Service or product development direction, potential future Services, products or product enhancements under consideration, Customer is not entitled to any Services, products, or product enhancements other than those contained on the Sales Agreement, Purchase Order, or Sales Quote. Customer has not relied on the availability of any future version of the Services (including SaaS Applications or equipment), nor any other future product in executing the Agreement.

CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL SERVICES. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER.

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