• Affiliate: an entity that directly, or indirectly through one or more entities, controls, is controlled by, or is under common control with, the specified entity.
• Asset: a unique device, host, server, workstation, network appliance, or software application that appears in scan/vulnerability data uploaded in Nucleus.
• Business Hours: 9am – 5pm Eastern Time (ET)
• Confidential Information: all information or material which (i) gives a party some competitive business advantage, gives a party the opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of a party; and (ii) which is either (a) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (b) known by the parties to be considered confidential and proprietary or (c) from all the relevant circumstances should reasonably be assumed to be confidential and The Documentation and Products are deemed the Confidential Information of Nucleus.
• Documentation: Nucleus’s then current generally available documentation, specifications, user manuals, etc. for the Products and Services, located at https://help.nucleussec.com or such other URL as Nucleus may provide from time to time.
• Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software.
• Licensee Cause: any of the following causes:
  • any improper use, misuse or unauthorized alteration of the Software by the Licensee;
  • any use of the Software by the Licensee in a manner inconsistent with the then-current Documentation;
  • the use by the Licensee of any hardware or software not provided by the Company or approved by the Company for use by the Licensee in connection with the Software; or
  • the use of a non-current version or release of the Software.
• Out-of-scope Services: any services provided by the Company in connection with any apparent problem regarding the Software reasonably determined by the Company not to have been caused by a Fault, but rather by a Licensee Cause or a cause outside the Company’s control (including any investigational work resulting in such a determination); or
• Product Support: any maintenance and support of any Products provided by Nucleus.
• Products: any Software, Services, and/or Web Services that Nucleus offers to Customer, including any Documentation.
• Purchase Order: a purchase order, a quote issued by Nucleus or other similar document or communication from Customer to Nucleus delivered in connection with a sales quote or a statement of
• Seats: the number of Users granted access to the Products at any given time. Seats in the context of this Agreement will only apply to “Active Users”. If a User de-activates their account, it opens a Seat up for another User. Nucleus retains information within the Cloud-based Software for de-activated User accounts so to preserve the account if re-activated by the User.
• Services: any professional services, including implementation and installation services agreed upon by the parties and set forth in a Purchase Order or any Product Support purchased pursuant to an Order.
• Software: the object code version of any software that may be licensed by Nucleus to Customer under a Purchase Order for usage or installationonCustomer’s
• Support Services: maintenance of the then-current version or release of the Software, including Help Desk Support but excluding any Out-of-scope Services.
• Support Period: The Term of the contract
• Users: means any of Customer’s employees, customers or other third Parties the Customer gives access to the Products.
• Web Service: means an application and/or database product hosted by Nucleus or its agents and made available for remote access and use by Customer under a Purchase Order.
• Privacy Policy: Nucleus’s Privacy Policy can be found at https://www.nucleussec.com/privacy-policy/ or such other URL locations which can be found on Nucleus’s website as Nucleus may provide from time to time.

• 2.1 Trial Period. If Customer acquires any Products on a trial period, then Customer will have a period of thirty (30) days from the Effective Date to evaluate the Product (the “Trial Period”). During the Trial Period, all terms and conditions of this Agreement will apply, except that (i) no fees will be due from Customer; (ii) the Services will be provided without warranties or indemnities of any kind, entirely on an “as-is” basis (e.g., the provisions of Sections 7 (Product Support), 10.1 (Product Warranties), 10.2 (Service Warranties), and 11.1 (Nucleus Indemnity Obligations) will not apply), and (iii) additional trial terms and conditions may appear on the trial registration web page or on the applicable Purchase Order. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. At any time prior to the end of the Trial Period, Customer may terminate this Agreement on written notice to Nucleus.
• 2.2 Trial Disclaimer. CUSTOMER DATA ON NUCLEUS SYSTEMS OR IN NUCLEUS’S POSSESSION OR CONTROL, REPORTS, AND ANY CUSTOMIZATIONS MADE TO THE PRODUCTS BY OR FOR CUSTOMER’S BENEFIT, DURING THE TRIAL PERIOD MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD IF CUSTOMER CANCELS THE PRODUCTS DURING THE TRIAL PERIOD.

• 3. 1 Software License. This Section applies only in the event Customer licenses Software from Nucleus pursuant to a Purchase Subject to Customer’s payment of all relevant fees, Nucleus hereby grants to Customer (including its Affiliates) and Customer’s authorized Users, solely for internal purposes, and not for resale or publication, a limited, non-exclusive, non-sublicensable, non-transferable (except pursuant to Section 14.6 (Assignment)), fully-paid, royalty-free license to use, execute, display, and access the Software. The initial term of the foregoing license will be as set forth in the applicable Purchase Order. Apart from the foregoing limited licenses, Customer is not being granted any right, title, or interest in or to the software Products. All such rights are expressly reserved by Nucleus.
• 3.2 Web Services Access. This Section applies only in the event Customer orders Web Services from Nucleus pursuant to a Purchase Subject to Customer’s payment of all relevant fees, Nucleus hereby grants to Customer a non-exclusive, non-transferable (except pursuant to Section 14.6 (Assignment)), right to access and use for its internal business purposes the Web Services. The initial term of the foregoing access right will be as set forth in the applicable Purchase Order. Customer shall be solely responsible for connection of Customer’s systems to a telecommunications service that provides Internet access for purposes of Customer’s access and use of the Web Services.
• 3.3 Beta Product. Nucleus may offer Beta Services at no Use of the Beta Services are at the election of Customer and are for evaluation purposes only. Beta Services are not considered “Services” and do not come with Product Support. Beta Services may be subject to additional terms. Nucleus reserves the right to discontinue the Beta Services at any time. Beta Services will automatically terminate at such time as Nucleus makes such Beta Services generally available. Beta Services may be unpredictable and lead to erroneous results. Customer acknowledges and agrees that: (i) Beta Services are experimental and have not been fully tested; (ii) Beta Services may not meet Customer’s requirements; (iii) the use or operation of any Beta Service may not be uninterrupted or error free; (iv) Customer’s use of any Beta Service is for purposes of evaluating and testing the Beta Service and providing feedback to Nucleus; (v) Customer shall inform its employees, staff members, and other users regarding the nature of Beta Service; and (vi) Customer will hold all information relating to Beta Services and Customer’s use of Beta Services, including any performance measurements and other data relating to Beta Services, in strict confidence and shall not disclose such information to any unauthorized third parties. Customer shall promptly report any errors, defects, or other deficiencies in any Beta Service to Nucleus. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SERVICES ARE PROVIDED “AS-IS” AND “AS- AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. Customer hereby waives any and all claims, now known or later discovered, that Customer may have against Nucleus and its suppliers and licensors arising out of Customer’s use of the Beta Services.

• 4.1 Acceptance. All sales are final, non-refundable, and non-returnable except with respect to Products that do not meet applicable specifications in the relevant Documentation or that are not identified in the Purchase Order. Inspection and acceptance of the Products shall be Customer’s responsibility. Customer is deemed to have accepted the Products once a Purchase Order is signed and sent over to Nucleus for Customer irrevocably waives any right to revoke acceptance.
• 4.2 Customer Assets. The Products are provided on a per asset basis. The concurrent amount of assets cannot exceed the purchased number of assets by more than 20%. If Customer’s assets exceed the purchased number of assets by more than 20%, the Customer is obligated to pay for any assets that surpass the purchased amount. If an asset is archived or removed, that asset or application’s license is no longer considered in use and may be allocated to another asset or application of the same type upon approval by Nucleus. In the event that the Customer adds on more assets during a term, the new assets will be priced at the same volume level/discount that the initial assets purchased during the that term were purchased for and will be valid only until the end of the specified term for the applicable Quote. Upon renewal of the applicable Quote term, new rates may apply.
• 4.3 Web Services Term. Unless otherwise provided in the applicable Purchase Order, (i) Web Services are acquired on a subscription basis, (ii) additional subscriptions may be added at any time during a co-pending subscription term, with the term for such additional subscriptions to be prorated for the portion of then-current subscription term remaining at the time the mid-term subscriptions are added, and (iii) any such additional subscriptions will be co-pending and each shall terminate on the same date as the original subscription
• 4.4 Product Term. The applicable term for each Product is set forth in the applicable Purchase
• 4.5 Intellectual Property. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code). Nucleus and its licensors and licensors own all right, title, and interest, including intellectual property rights, in the Products and all enhancements, modifications, and updates Except for express licenses granted in this Agreement, Nucleus is not granting or assigning to Customer any right, title, or interest, express or implied, in or to Nucleus’s intellectual property. Nucleus reserves all rights in such property.
• 4.6 Feedback. Customer may provide Nucleus with suggestions, comments or other feedback (collectively, “Feedback”) with respect to the Products. Feedback is voluntary. Nucleus is not obligated to hold it in confidence. Nucleus may use Feedback for any purpose without obligation of any To the extent a license is required under any Customer intellectual property rights to make use of the Feedback, Customer grants Nucleus an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Nucleus’s business, including the enhancement of the Products.

• 5.1 Customer Data. Customer grants Nucleus and its Affiliates a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Products (“Customer Data”): (i) to perform Nucleus’s obligations under this Agreement; (ii) in compliance with the Privacy Policy and (iii) as may be required by Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Nucleus for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting Nucleus any right, title, or interest in the Customer Data. Customer Data shall be deemed Customer Confidential Information.
• 5.2 Aggregated Nucleus may also use Customer Data in an aggregate, de-identified and generic manner for marketing, survey and benchmarking purposes, in the review and development of current and future Products, Product usage and other similar purposes (“Aggregated Data”). Aggregated Data: (i) is used only for internal administrative purposes and general usage statistics; (ii) does not identify Customer or any individual; and (iii) to the extent such Aggregated Data is disclosed, it is only disclosed in a generic or aggregated manner for the purposes of sharing Product usage, statistical or benchmarking purposes. Aggregated Data will not be considered Customer Confidential Information.
• 5.3 Data Security. Customer Data is maintained using industry standard administrative, physical, and technical safeguards that are designed to provide for the protection of the security, confidentiality and integrity of Customer Data. Nucleus’s security safeguards include, means for preventing access, use, modification or disclosure of Customer Data by unauthorized Notwithstanding, Customer Data access may be provided (i) to Nucleus and other personnel to the extent necessary provide Product and Product Support; (ii) as compelled by law in accordance with Section 9.1(v); (iii) as set forth in the Privacy Policy; or (iv) as expressly permitted by Customer.
• 5.4 Privacy. The collection, use, and disclosure of Customer Data in connection with Customer’s use of the Products is subject to the Privacy Policy. Customer hereby acknowledges and agrees that all Users will review and consent to the Privacy Policy before accessing or using the By using the Products, Customer, and each User acknowledges that the Customer Data will be processed in accordance with the Privacy Policy and this Agreement and may be processed in a country where it was collected, as well as in countries where privacy laws may be different or less stringent. By using the Products or submitting Customer Data via the Products, Customer and each User expressly consents to such processes. To the extent Customer or a User provides personal information about a named person or entity that is not a User, Customer or the applicable User represents that it has that person’s or entity’s consent to do so.

• 6.1 Connectivity. Customer is solely responsible for all telecommunication or Internet connections and associated fees required to access and use the Products, as well as all hardware and software on the Customer site. Nucleus is not responsible for (i) Customer’s access to the Internet, (ii) interception or interruptions of communications through the Internet, or (iii) changes or losses of data through the
• 6.2 User Credentials. Customer shall keep the User credentials (e.g. usernames and passwords) confidential and not disclose any such credentials to any third party. In addition, Customer shall notify Nucleus immediately upon discovery of the disclosure of any such credentials, and upon any termination of the engagement of any employees or agents of Customer with knowledge of any such credentials, so that such credentials can be
• 6.3 Restrictions. Customer may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know how underlying the Products, except to the extent expressly permitted under applicable law;(ii) use Nucleus’s intellectual property and Confidential Information to develop a product that is similar to the Products; (iii) use any Nucleus Confidential Information to contest the validity of any Nucleus intellectual property; (iv) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Products; or (v) use the Products in any manner or for any purpose inconsistent with the terms of this Agreement or the Documentation. Software shall only be used for the licensed number of nodes, networks, or hosts for which Customer has paid the applicable fees.

• 6.4 Export/Import Control Compliance. The sale, resale or other disposition of Products and any related technology or documentation may be subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer is solely responsible for complying with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export or import any Products to any country to which such export or transmission is restricted or Customer understands and acknowledges its responsibility to obtain any license to export, re-export or import as may be required.

• 7. 1 In General. Products are made available with standard Product Support for no additional Nucleus shall perform the Support Services during the Support Hours.  The customer may request support services by way of a support request submission on the Nucleus Support webpage https://help.nucleussec.com or by email to the Nucleus support e-mail address [email protected].  Nucleus shall prioritize all Support Requests based on its reasonable assessment of the severity level of the problem reported.  Nucleus shall respond to all Support Requests in accordance with the responses and the response times specified in the tables set out below:
  • 7.1.1 Severity Definitions

• 7.1.2 Response and Resolution Times

• 7.1.3 Ongoing Updates

The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times.

• 7.2 Service Credits. If Nucleus fails to provide a Solution within the relevant Service Level response time, the Licensee shall become entitled to the Service Credit specified in the table set out below corresponding to the relevant severity level of Fault on submitting a written claim for such Service Credit, provided that the relevant Fault or other problem relating to the Software: did not result from a Licensee Cause or a cause outside the Company’s control; and was promptly notified to the Company.

• 7.2.1 The parties acknowledge that each Service Credit is a genuine pre-estimate of the loss likely to be suffered by the Licensee and not a penalty.
• 7.2.2 The provision of a Service Credit shall be an exclusive remedy for a particular Service Level failure.
• 7.2.3 Service Credits shall be shown as a deduction from the amount due from the Licensee to the Company in the next invoice then due to be issued under the agreement. The Company shall not in any circumstances be obliged to pay any money or make any refund to the Licensee.

• 7.3 Exclusions. Notwithstanding the foregoing, Nucleus will have no obligation to support: (i) services, hardware, or software provided by anyone other than Nucleus, or (ii) Product issues caused by Customer’s negligence, abuse or misapplication, (iii) Customer’s use of Products other than as specified in the  Documentation, (iv) or by other factors beyond the control of Nucleus.

• 8.1 Prices. Prices will be specified by Nucleus and will be applicable for the period specified in the Nucleus Purchase Order (as applicable). If no period is specified, prices will be applicable for thirty (30) Notwithstanding the foregoing, prices will be subject to increase in the event of an increase in Nucleus’s costs or other circumstances beyond Nucleus’s reasonable control. Prices are exclusive of taxes, including sales, use, excise, value added and similar taxes or charges imposed by any government authority; domestic and international shipping charges. Nucleus is responsible for payment of the foregoing (with the exception of any Nucleus income or employee taxes) and such charges will be paid by Customer to Nucleus in addition to the price of the Products. Except as otherwise specified herein or in a Purchase Order, (i) fees are based on the Product acquired and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) Term and quantities purchased cannot be decreased during the applicable Product term. You will be responsible for any payments owed but not paid by any of your Affiliates ordering Services hereunder.
• 8.2 Due Date; Late Payments. Amounts due for Products may be invoiced by Nucleus in full at the start of the subscription term or as otherwise expressly provided in the Purchase Customer agrees to pay the net amount of each invoice without offset or deduction within thirty (30) days after the date of Nucleus’s invoice (unless otherwise noted on the invoice). If any amount is not paid upon the due date, Nucleus shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all of Nucleus’s reasonable costs of collection, including but not limited to reasonable attorney’s fees.
• 8.3 Disputed Payments. Nucleus will not exercise its right of suspension in the event Customer provides Nucleus Customer disputes such charges, in good faith, and provides Nucleus with written notice of such dispute prior to the due date, pays all undisputed charges on time, and cooperates diligently to resolve the
• 8.4 Credit Approval; Application of All Purchase Orders are subject to credit approval by Nucleus. Customer agrees to submit such financial information from time to time as may be reasonably requested by Nucleus for the establishment and/or continuation of credit terms. Any payment received from Customer may be applied by Nucleus against any obligation owing from Customer to Nucleus.
• 8.5 Reseller Purchases. In the event Customer acquires Products via a reseller, then all payment-related terms will be set forth in the applicable reseller agreement between such reseller and

• 9.1 Confidential Information. During the course of this Agreement, each party may disclose to the other certain Confidential Information to the other Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (ii) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (iii) was acquired from a third party without any breach of any obligation of confidentiality; (iv) was independently developed by a party hereto without reference to Confidential Information of the other party; or (v) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
• 9.2 Protection of Confidential Information. Except as expressly provided in this Agreement, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Receiving Party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
• 9.3 Return and Destruction of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either Party to the other Party, and all summaries, copies, descriptions, excerpts or extracts thereof that are in the possession of the other Party, shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party, and the Receiving Party shall use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts or extracts thereof in their possession upon the Disclosing Party’s written The Receiving Party shall have no obligation to delete or destroy copies that: (a) are contained in an archived computer system backup that was made in accordance with such Party’s security, e-mail retention, and/or disaster recovery procedures; or (b) are kept by its legal department for record-keeping, archival, or governance purposes in compliance with such party’s document retention policies. Any such retained Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement. At the Disclosing Party’s option, the Receiving Party will provide written certification of its compliance with this Section.

• 10.1 Product Warranties. Unless expressly provided otherwise in a Product warranty in terms and conditions accompanying a Product, all Products shall materially conform to their then current Documentation. Customer must notify Nucleus of any breach of this warranty within the foregoing thirty (30) day period. Customer’s sole and exclusive remedy, and Nucleus’s sole and exclusive liability, for a breach of the foregoing warranty will be for Nucleus to provide Product Support to repair or replace the relevant Product or terminate the relevant Purchase Order and issue a refund for any pre-paid, unearned fees for the affected portion of the Product. Nucleus shall not be responsible for any breach of the foregoing warranty resulting from Customer’s abuse or misuse of the Product or failure to use the Product as described in this Agreement, including failure to use the Product in accordance with its operational
• 10.2 Service Warranties. Nucleus warrants that Nucleus shall provide the Services in a professional, workmanlike manner consistent with this Customer must notify Nucleus of any breach of this warranty within thirty (30) days of delivery. Customer’s sole and exclusive remedy, and Nucleus’s sole and exclusive liability, for a breach of the foregoing warranty will be for Nucleus, in its sole discretion, to use reasonable efforts to re- perform the Services or terminate the relevant Purchase Order and issue a refund for the portion of price paid for the non-conforming Services.
• 10.3 Compliance Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Products, as applicable (including applicable security breach notification law).
• 10.4 Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 10 OR ANY EXPRESS WARRANTIES PROVIDED IN TERMS AND CONDITIONS ACCOMPANYING A PRODUCT: (i) THE PRODUCTS ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND; AND (ii) NUCLEUS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR NUCLEUS DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY NUCLEUS OR NUCLEUS’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN.
• 10.5 THE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT NUCLEUS AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (ii) UNAUTHORIZED USERS (G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEB-SITES, COMPUTERS, OR NETWORKS. NUCLEUS WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. FURTHER, EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

• 11.1 Nucleus Indemnity Obligations. Nucleus will defend and indemnify Customer from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) finally awarded against Customer, as approved via a court-approved settlement, or via binding mediation or arbitration arising from a claim by a third party that Customer’s authorized use of a Product infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Nucleus is contingent upon Customer promptly notifying Nucleus in writing of such claim (provided the failure or delay in doing so shall not relieve Nucleus from any obligations to indemnify Customer except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Nucleus sole authority to control the defense or settlement of such claim and providing Nucleus reasonable assistance (at Nucleus’s sole expense) in connection therewith. If a claim of infringement under this Section occurs, or if Nucleus determines a claim is likely to occur, Nucleus will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Products free of the infringement claim, or (ii) modify the Products to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Nucleus, Nucleus may, in its sole discretion, immediately terminate this Agreement and related Purchase Order and, upon return of the infringing Products from Customer, refund the fees paid for such Products, prorated over twenty-four (24) months from initial delivery of the Products to Customer. Notwithstanding the foregoing, Nucleus will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Products with any hardware, software, products, data, or other materials not provided by Nucleus, (ii) modification or alteration of the Products by anyone other than Nucleus, (iii) use of the Products in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer (collectively, the “Excluded Claims”). The provisions of this Section state the sole and exclusive obligations and liability of Nucleus and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Products or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
• 11.2 Customer Indemnity Obligations. Customer will defend and indemnify Nucleus and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Nucleus as a result of any claim by a third party arising from (i) Customer’s use of the Products in breach of this Agreement, (ii) Nucleus’s authorized use of the Customer Data, or (iii) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Nucleus promptly notifying Customer in writing of such claim (provided the failure or delay in doing so shall not relieve Customer from any obligations to indemnify Nucleus except to the extent that such delay or failure materially prejudices the defense of such claim), permitting Customer sole authority to control the defense or settlement of such claim, provided that Customer may not settle any such claim unless it unconditionally releases Nucleus of all liability, and providing Customer reasonable assistance (at Customer’s sole expense) in connection

• 12.1 NEITHER NUCLEUS NOR ITS VENDORS AND LICENSORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED THE TOTAL LIABILITY OF NUCLEUS AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE PRODUCT OR SERVICE AS TO WHICH THE LIABILITY RELATES, IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and Nucleus’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
• 12.2 No action arising out of this Agreement may be brought by either party more than two (2) years after such cause of action accrues, except that an action for nonpayment may be brought within two (2) years of the date of the last

• 13.1 Term. This Agreement shall be effective as of the Effective Date, and shall remain in full force and effect until all Purchase Order terms have expired or otherwise have been terminated (“Term”).
• 13.2 Suspension. In the event Nucleus, in good faith believes or otherwise becomes aware of a User’s violation of this Agreement, then Nucleus may specifically request that Customer suspend such User’s access to and use of the In the event Customer fails to suspend such non-compliant User, Customer hereby authorizes Nucleus to suspend such User. The duration of such suspension is at the sole determination of Nucleus and shall continue until such time as Nucleus determines that the applicable User has cured the breach resulting in such suspension. Nucleus may also suspend access and use of the Products with respect to any individual User or the Customer account to: (i) to prevent damages to, or degradation of, the Products or Nucleus’s systems; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect Nucleus from potential legal liability. Any such suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the cause of the suspension.

13.3  Termination.

• 13.3.1 If Nucleus believes in good faith that Customer’s ability to make payments may be impaired, or if Customer fails to pay any invoice when due and does not make such payment within ten (10) days after receipt of notice from Nucleus of such failure, Nucleus may, in its sole discretion, either: (i) suspend delivery or performance of any Purchase Order, or any remaining balance thereof, until such payment is made; or (ii) terminate any Purchase Order, or any remaining balance In either event, Customer shall remain liable to pay for any Products already received, and any Services already performed.
• 13.3.2 Either party may terminate the Agreement or a Purchase Order upon a material breach of the Agreement or Purchase Order by the other, if the breaching party does not cure the breach within thirty (30) days after receipt of written notice from the other party specifying the

13.4    Effects of Termination.

• 13.4.1 All Purchase Orders existing at the time of termination of this Agreement shall remain in effect and shall be performed in accordance with and subject to the terms and conditions of this Agreement (all of which shall survive with respect to such Purchase Orders), except for any Purchase Orders terminated under Section 3.2 above.
• 13.4.2 In the event of any termination of the Agreement or Purchase Order, Customer shall pay for all work in process and all Products ordered as of the effective date of termination of the particular Purchase Order, as applicable. In addition, if a Purchase Order specifies a term for which Nucleus shall provide Services to Customer (e.g., 36 months), and that Purchase Order is terminated by Nucleus for cause (including nonpayment) or by Customer without cause, then all future, recurring Service fees associated with the remaining Term of such Purchase Order shall become immediately due and payable, and shall be paid by Customer to Nucleus upon the effective date of such
• 13.4.3 Upon any termination, Customer’s right to use and access the Products shall immediately
• 13.4.4 After the effective date of termination of this Agreement, Nucleus shall have no obligation to maintain or provide Customer Data to Nucleus may, in its sole discretion, delete or destroy any Customer Data in its possession, unless Nucleus has a legal retention obligation. Prior to the expiration or termination, Customer may request, in writing, that Nucleus provide Customer with a copy of the Customer Data in its possession and in the form and format as such Customer Data exists of the effective date of such termination.
• 13.4.5 The exercise of the right to terminate this Agreement and any Purchase Order shall be in addition to any other right and remedy provided in this Agreement or existing at law or equity that is not otherwise excluded or limited under this

• 14.1 U.S. Governmental Rights. The software Products are commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
• 14.2 FOIA and Public Disclosure Requests. The purpose of the relationship between Nucleus and Customer is for Customer to purchase a subscription to Nucleus’s Vulnerability and Risk Management Platform, which contains software, content, and information for IT risk management, regulatory compliance, and vulnerability assessments. The software, web services, content, and information disclosed is proprietary to Nucleus and is an important business asset of Nucleus (the “Proprietary Information”). The Proprietary Information consists of protected financial data, trade secrets and commercially valuable information that, if disclosed, would harm the competitive position of Nucleus. In the event of a request for disclosure of Nucleus’s information, Customer will affirmatively respond denying the request pursuant to the terms of this paragraph and will promptly, but no later than (five) 5 business days after receiving such request, forward the request on to Nucleus. Customer shall not release any such information except pursuant to written instructions by Nucleus, or a final un-appealable court order, provided that any such disclosure shall be limited to the minimum necessary to be in compliance with the request, based upon the opinion of If Customer cannot agree to the foregoing, then Customer is not permitted access to the Information.
• 14.3 Independent Contractor. Nucleus, its personnel, agents, subcontractors and independent contractors are not employees or agents of Customer and are acting as independent contractors with respect to Customer. Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner
• 14.4 Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in
• 14.5 Entire Agreement; Construction; Modifications. This Agreement, including any and all Purchase Orders, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The parties further agree that there are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as expressly set in this Agreement. In the event of any conflict between the body of this Agreement and any Purchase Order, the body of this Agreement shall control, unless signed in writing by the In the event that the Customer, or its Users, are presented with Nucleus click-wrap, the contents of this Agreement shall supersede any conflicting terms. As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. This Agreement may not be modified, amended or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification shall be void and of no effect.
• 14.6 Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Any attempted assignment or delegation without such consent will be void and Nucleus may immediately terminate this Agreement for cause. Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their successors and assigns.
• 14.7 No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right
• 14.8 Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to choice of law principles. The parties consent and submit to the jurisdiction and venue of the state and federal courts located in Delaware for any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies). Notwithstanding the foregoing, Nucleus shall have the right to seek injunctive or pre- judgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of Nucleus’s Confidential Information or intellectual property rights. No Federal Acquisition Regulations shall be construed to apply to Nucleus without Nucleus’s written agreement The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS LICENSE AGREEMENT.
• 14.9 Purchase Orders. NUCLEUS SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A CUSTOMER PROVIDED PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE AND REPLACE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
• 14.10 Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, and payment, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this
• 14.11 Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future specify in writing to the
• 14.12 Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.