Last updated: September 13, 2024
These Nauta Offerings Terms together with each Order and all of the other terms and conditions incorporated into these Nauta Offerings Terms by reference (collectively, this "Agreement") constitutes a binding agreement between Nauta and Client. Unless expressly otherwise agreed by Nauta Technologies, Inc ("Nauta") in advance and in writing, all access and use of any Software-as-a-Service ("SaaS") offerings provided by Nauta are governed by these Nauta Offerings Terms and, if applicable, each Order. All defined terms used in these Nauta Offerings Terms, but not defined in these Nauta Offerings Terms, are defined in the Order. The Agreement supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to any Software-as-a-Service offerings provided by Nauta and all past dealings or industry customs.
In this Agreement, the following terms shall have the meanings set forth below. Additional terms are defined within the relevant sections of this Agreement and shall have the meanings ascribed to them therein.
"Applicable Data Protection Laws": All laws and regulations relating to the processing of Personal Data and privacy applicable to Nauta, its Clients, and its Clients Customers, including without limitation: The California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). The General Data Protection Regulation (GDPR) and local EU member state implementations. Local data privacy laws in Latin American territories and other jurisdictions where Nauta or its Clients process data. Other applicable international and local data protection laws in jurisdictions where Nauta, its Clients, or its Clients Customers operate or process data.
"Company Data": Any electronic data or information provided by a Client to Nauta, or processed by Nauta in connection with the Services. This includes, but is not limited to, data that is collected, stored, transferred, processed, disclosed, or otherwise handled by Nauta. Company Data is owned by the Client and is used by Nauta solely in connection with the Services and in accordance with the Client's documented instructions. Company Data must be managed in compliance with Applicable Data Protection Laws.
"Client": Any entity that directly contracts with Nauta to use Nauta's services for processing data. These are typically, but not limited to, logistics companies, freight forwarders, or other entities in the supply chain industry.
"Client Customer": Refers to the customers of a Client. These are typically the original controllers of the Personal Data processed through Nauta's services. They may include, but are not limited to, shippers, consignees, or other parties involved in logistics transactions.
"Processor": A natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller. In the context of Nauta's services, Clients are typically processors, and Nauta itself is a sub-processor.
"Personal Data": Any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
"Processing": Any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
"Sub-processor": An entity engaged by a Processor to assist in fulfilling data processing obligations on behalf of the Controller. In the context of Nauta's services, Nauta may act as a Sub-processor when it processes Personal Data on behalf of its Clients (acting as Processors) who in turn process data on behalf of their Client Customers (acting as Controllers).
"Services" has the meaning given in Section 1.1 (Offerings).
"User" has the meaning given in Section 1.1 (Offerings).
"Subscription Period" has the meaning given in Section 1.1 (Offerings).
"Subscription Fees" has the meaning given in Section 1.1 (Offerings).
"Passwords" has the meaning given in Section 3 (User Requirements).
Additional terms related to data privacy and protection shall have the meanings ascribed to them in the Nauta Privacy Policy, available at https://getnauta.com/privacy, which is incorporated into this Agreement by reference. In the event of any conflict between the definitions in this Agreement and those in the Privacy Policy, the definitions in this Agreement shall prevail.
1.1. Offerings. Subject to the terms of this Agreement, Nauta will make available certain SaaS as further described in each Order to Client and Clients authorized users (each, a "User"). Each Order sets forth (a) the nature of the Software-as-as-Service offerings provided by Nauta ("Services") elected by Client, (b) the period the Services will be provided on a non-trial basis (each, a "Subscription Period"), (c) the number of Users authorized to use the Services, and (d) the fees for the Services per Subscription Period ("Subscription Fees"). Notwithstanding any terms to the contrary in this Agreement, (i) to the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the Order will control, and (ii) Client is responsible for the acts and omissions of each User.
1.2. API Access. Nauta will use commercially reasonable efforts to promptly provide to Client with access to Nauta's application programming interface ("API"), which is part of the Services. Nauta will host the API and Client will access the API through the Services. Client acknowledges that the API and the API functionality is (a) only available through the Services, (b) not available separately, and (c) subject to the terms and conditions of this Agreement. Client will not access or use, or attempt to access or use, the API separately from the Services.[1]
1.3. Definitions Related to Data Privacy. All capitalized terms relating to data privacy that are used in this Agreement but not defined herein shall have the meanings ascribed to them in the Nauta Privacy Policy,[2] [3] which is incorporated into this Agreement by reference.
2. Support and Service Levels. Nauta will (a) provide the support for the Services described in Exhibit A ("Support Terms"), and (b) use commercially reasonable efforts to meet the service level standards described in Exhibit A ("Service Level"). The Support Terms and Service Level Standards are incorporated into this Agreement by reference.
3. User Requirements. Client is responsible for maintaining the confidentiality of its User passwords, IDs, and other credentials and login information (collectively, "Passwords"), and Client agrees that Nauta has no liability with respect to the use of any Passwords. Client acknowledges that Passwords are personal to each User, and Client is responsible for ensuring that each Password is used only by the applicable User. Client must notify Nauta immediately if Client has reason to believe that the security of Client's account has been compromised or if any of the Services have been accessed by any unauthorized individuals.
4.1. Subscription Fees. Client will pay to Nauta the Subscription Fees in accordance with the payment terms set forth in the applicable Order. The Subscription Fees do not include taxes. Unless otherwise set forth in the Order, Nauta will invoice Client on a monthly basis in advance for the Subscription Fees, Client will pay all invoiced amounts to Nauta within thirty (30) days of the date of such invoice, and all payments must be made (a) in U.S. Dollars and (b) by bank wire transfer in immediately available funds to an account designated by Nauta.[4]
4.2. Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Client will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services, excluding only taxes based solely on Nauta's net income. Notwithstanding any terms to the contrary in this Agreement, (a) Nauta will not be obligated to issue any refunds for Subscription Fees paid, and (b) Nauta, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period and only with the Client's written consent.
4.2. Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Client will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services, excluding only taxes based solely on Nauta's net income. Notwithstanding any terms to the contrary in this Agreement, (a) Nauta will not be obligated to issue any refunds for Subscription Fees paid, and (b) Nauta, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period and only with the Client's written consent.
5.1. Term. This Agreement will have an initial term as set forth in the Subscription Period in the Order commencing on the Effective Date (the "Initial Term"). Thereafter, unless terminated as set forth in Section 5.2 (Termination) or otherwise provided in the Order, this Agreement will automatically renew for successive periods equivalent to the length of the Subscription Period (each period referred to as a Subscription Period) unless either party provides written notice of non-renewal no less than sixty (60) days prior to the end of the then-current Subscription Period.
5.2. Termination. In addition to Client's faculty to terminate this Agreement in the events established in the sections above, either party may terminate this Agreement, for cause, if the other party materially breaches this Agreement and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach. Further, notwithstanding any terms to the contrary in this Agreement, Nauta may suspend use of the Services (or any portion thereof) without any liability if Nauta reasonably determines that (a) Client or any of its Users are in breach of Sections 11.3 (Company Data) or 12 (Restrictions), or (b) that Nauta is required by any applicable law to suspend the Services.
5.3. Effects of Termination. Upon any expiration or termination of this Agreement (a) all rights and licenses granted to Client under this Agreement will immediately terminate, and (b) Client must immediately pay to Nauta all amounts due for the period for which Client contracted. If the applicable Subscription Period is 12 months, the applicable Subscription Fees are split in 12 equal payments (each of which is due and payable at the close of each month). If Client elects to terminate this Agreement, and the effective date of termination of this Agreement occurs upon the close of the 9th month of the Subscription Period, Client must pay the remaining Subscription Fees for the entire Subscription Period, within the next thirty (30) days upon the termination date. Notwithstanding any terms to the contrary in this Agreement, (i) Sections 4. (Fees and Payment Terms), 5.3 (Effects of Termination), 7. (Disclaimer), 8. (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11.3 (Company Data), 11.4 (Nauta Analytic Data), 12. (Restrictions), 14. (General), and 15. (Third-Party Providers) will survive any termination or expiration of this Agreement, and (ii) no refunds will be issued.
6. Representations and Warranties. Client represents, warrants, and covenants that (i) it possesses the necessary rights and consents to grant Nauta the rights set forth in this Agreement with respect to the Company Data, (ii) neither the Company Data nor the use of any Company Data (as set forth in this Agreement) infringes, misappropriates, or violates any rights of any User or any third party, and (iii) all of the Company Data is (and was) collected, stored, transferred, processed, disclosed, and otherwise handled by Client and any individual or entity acting on Client's behalf in accordance with all Applicable Data Protection Laws. Client shall ensure that it has a valid legal basis for processing the Personal Data, including obtaining any necessary consent from Data Subjects, and shall provide Data Subjects with all necessary information regarding the processing of their Personal Data, in accordance with the GDPR and other Applicable Data Protection Laws. Client shall indemnify and hold harmless Nauta from any claims, damages, or fines arising from Client's breach of its obligations under the GDPR or other Applicable Data Protection Laws.
7. Disclaimer. EXCEPT AS SET FORTH IN SECTION 6 (REPRESENTATIONS AND WARRANTIES), THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT.
8. Indemnification. Nauta, at its sole expense, will defend Client from and against any and all claims, suits, actions, or proceedings (each a "Claim") brought by a third party and indemnify Client from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys' fees, costs, penalties, interest, and disbursements) ("Losses") that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Nauta resulting from or arising in connection with the Services (solely in the form delivered to Client) infringing any Intellectual Property Rights (as defined in Section 9.4 (Intellectual Property Rights)) of any third party or due to (a) any alleged or actual breach of this Agreement (including, but not limited to, any of Client's representations, warranties, or covenants), b) any violation of any Applicable Data Protection Laws by Client or any individual or entity acting on Client's behalf. Client, at its sole expense, will defend Nauta, its affiliates, and its and their respective directors, officers, employees, consultants, and agents ("Nauta Parties") from and against any Claim and indemnify the Nauta Parties from any related Losses resulting from or arising in connection with (a) any alleged or actual breach of this Agreement (including, but not limited to, any of Client's representations, warranties, or covenants), (b) any Company Data, (c) any act or omission of a User with respect to the Services, or (d) any violation of any Applicable Data Protection Laws by Client or any individual or entity acting on Client's behalf. The indemnifying party's indemnification obligations under this Section 8 (Indemnification) are conditioned upon the indemnified party (i) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of it, (ii) granting the indemnifying party the option to solely control the defense (including the right to use its own counsel) and settle the Claim (except that the indemnified party must approve any settlement that requires an affirmative obligation of the indemnified party), and (iii) providing reasonable cooperation to the indemnifying party and assistance in the Claim's defense or settlement.
9.1. Consequential Damages Waiver. EXCEPT FOR (A) BREACHES OF SECTIONS 10 (CONFIDENTIALITY) OR 12 (RESTRICTIONS), (B) INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (C) A PARTY'S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 (INDEMNIFICATION) (WHICH CONSTITUTES AS A "MATERIAL BREACH" OF THIS AGREEMENT), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. EXCEPT FOR (A) BREACHES OF SECTIONS 10 (CONFIDENTIALITY) OR 12(RESTRICTIONS), (B) INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (C) A PARTY'S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 (INDEMNIFICATION), EACH PARTY'S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY Client TO NAUTA DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED. FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT.
9.3. Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 9 (LIMITATION OF LIABILITY) WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.4. Intellectual Property Rights. Nauta retains all Intellectual Property Rights in and to the SaaS and any Services provided under this Agreement. In the event of any claim brought by a third party that all or a portion of the Services infringes, misappropriates, or otherwise violates any Intellectual Property Right of a third party or if Nauta believes such a claim may be brought, Nauta may, in its sole discretion (a) replace the applicable Services, (b) modify the applicable Services, (c) procure for Client the right to continue using the Services, or (d) terminate this Agreement upon 30 days written notice to Client. This Section 9.4 (Intellectual Property Rights) sets forth Client's sole remedy and Nauta's sole obligation for the claims described in this Section 9.4 (Intellectual Property Rights). For the purpose of this Agreement, "Intellectual Property Rights" means all patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations, for any of the foregoing.
10.1. Definition. "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked "Confidential" or "Proprietary" or with similar designation by the Disclosing Party, at the time of initial disclosure to the Receiving Party or, if the Disclosing Party makes an oral disclosure, the Disclosing Party, within 10 days of such oral disclosure, notifies the Receiving Party in writing that the information disclosed by the Disclosing Party should be treated as confidential/proprietary to the Disclosing Party.
10.2. Obligations. The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the 2-year period commencing upon the effective date of termination of this Agreement and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party's obligations or exercising the Receiving Party's rights under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees, vendors, and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, provided such directors, officers, employees, vendors, and/or contractors are under a written obligation to maintain the confidentiality of the Confidential Information. Each party agrees that the and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement in confidence (a) to such party's legal counsel, accountants, banks, financing sources, and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed equity investment, merger, acquisition, or similar transaction.
10.3. Exceptions. Confidential Information will not include information that: (a) is or becomes publicly available without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a non-disclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a "Court Order"), but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 10 (Confidentiality), the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
10.4. Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations set forth in this Agreement, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
11.1. Security & Retention/Disposal. Nauta, in its role as a Sub-processor, will implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects. Nauta will make its best efforts to comply with all data retention and erasure (or destruction) requirements under the Applicable Data Protection Laws, including but not limited to the GDPR, CCPA, CPRA, and other relevant laws in territories where Nauta, its Clients, and Client Customers operate. Nauta will assist Clients in fulfilling Data Subjects requests for erasure of their Personal Data.
11.2. Notification and Audit. If Nauta learns or has reason to believe that there has been a personal data breach, as defined in Applicable Data Protection Laws, Nauta will inform the relevant Client(s) without undue delay after becoming aware of it and will comply with any notification requirements under the Applicable Data Protection Laws.
11.3. Company Data. As between the parties and subject to the limited grant set forth in this Section 11.3, Clients own all Company Data. During the terms of this Agreement, Clients grant to Nauta a non-exclusive, royalty-free, worldwide, sub-licensable right and license to process all Company Data solely in connection with the Services and in accordance with the Client's documented instructions. Prior to granting Nauta access to Company Data, Clients warrant that they have obtained:
(a) All necessary rights and consents from their Client Customers and Data Subjects to grant Nauta the rights set forth in this Agreement with respect to such Company Data, and (b) Assurance that all Company Data has been collected, stored, transferred, processed, disclosed, and otherwise handled in accordance with all Applicable Data Protection Laws, particularly in consideration of Nauta's position in the Data Supply Chain as a Sub-processor.
11.4. Nauta Analytic Data. Clients acknowledge and agree that Nauta may monitor, collect, use, and store anonymous and aggregate statistics regarding use of the Services and/or any individuals/entities that interact with the Services (collectively, "Nauta Analytic Data"), provided that such Nauta Analytic Data does not include any Personal Data or allow for the re-identification of any Data Subject. The use of Nauta Analytic Data shall comply with all Applicable Data Protection Laws.
12. Restrictions. Except as expressly authorized by this Agreement, Client may not (a) modify, disclose, alter, translate, or create derivative works of the Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Services (or any components thereof); (c) use the Services to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions; (d) copy, frame, or mirror any part or content of the Services; (e) build a competitive product or service, or copy any features or functions of the Services; (f) interfere with or disrupt the integrity or performance of the Services; (g) attempt to gain unauthorized access to the Services or their related systems or networks; (h) disclose to any third party any performance information or analysis relating to the Services; (i) remove, alter, or obscure any proprietary notices in or on the Services, including copyright notices; (j) disclose or make available Passwords that Nauta has provided to Client or the Users; (k) create or retain any copies of any Content, except to print or download in substantial amounts of the Content as available through the Services' intended use; (l) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or attempt to create the source code of the Services or their structural framework (in whole or in part), or perform any process intended to determine the source code for the Services; (m) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services or the functionality of the Services; (n) take any action that imposes an unreasonable or disproportionately large load on the Services; (o) use the Services for any purpose that is illegal in any way or that advocates illegal activity; or (p) cause or permit any User or third party to do any of the foregoing.
13. Force Majeure. Neither party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including, but not limited to, acts of God, flood, fire, earthquake, or explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, sabotage or piracy, riot or other civil unrest, government order, law, or action, embargoes, or blockades in effect on or after the date of this Agreement, strikes, labor stoppages, or slowdowns or other industrial disturbances, interruption, or termination of any services provided by any service providers used by Nauta, and plague, epidemic, pandemic, outbreaks of infectious disease, or any other public health crisis (including, quarantine or other employee restrictions) (each a "Force Majeure Event").
14. Use of Trademarks. Each party shall strictly comply with all standards with respect to the other party's Trademarks contained herein or which may be furnished by such party from time to time. All uses of the other party's Trademarks shall insure to the benefit of the party owning such Trademark and shall be used for commercial purposes only with the prior authorization of the other party. Either party may update or change the list of Trademarks usable by the other party hereunder at any time by written notice to the other party.
15. General Provisions. This Agreement (together with the attached exhibit(s)) sets forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes all prior agreements or understanding with respect to such subject matter and all past dealing or industry custom. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without resorting to its conflict of law provisions. Nauta may, by itself or through an independent third party, audit Client's use of the Services to verify Client's compliance with this Agreement. Client agrees to provide reasonable access to Client's facilities and records for purposes of conducting these audits. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments, or other feedback provided by Client to Nauta with respect to Nauta or the Services (collectively, "Feedback") will constitute Confidential Information of Nauta. Further, Nauta will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Client hereby assigns to Nauta all right, title, and interest Client may have in and to the Feedback (including all Intellectual Property Rights embodied in the Feedback). Notwithstanding any terms to the contrary in this Agreement, as between the parties and subject to the grants expressly set forth in this Agreement, Nauta owns all right, title, and interest in and to the Services and Nauta Analytic Data, together with any and all Intellectual Property Rights embodied in or related to the foregoing. Client consents to Nauta's use of Client's name and logo on the Nauta website, identifying Client as a customer of Nauta and describing Client's use of the Services notwithstanding any terms to the contrary in this Agreement. Client agrees that Nauta may issue a press release identifying Client as customer of Nauta. Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by Client, by operation of law or otherwise, without the prior written consent of Nauta, and any attempted transfer, assignment, or delegation without such consent will be void and without effect. Nauta may freely transfer, assign, or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors, and permitted assigns. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement are not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument and (b) by the parties by exchange of signature pages by mail, facsimile, or email (if email, signatures in Adobe PDF or similar format).
16. Risk Management of Money Laundering and Financing of Terrorism. Either party may unilaterally and immediately terminate this Agreement, in the event that the other party, its administrators, members of the Board of Directors, legal representatives or shareholders, are included in any list for the control of money laundering and financing of terrorism administered by any national or foreign authority, such as the Office of Foreign Assets Control - OFAC, of the United States of America, as well as any other public list related to the subject of money laundering and financing of terrorism.
Each party irrevocably authorizes the other party to consult its information in the abovementioned lists or similar lists. Either party may also unilaterally and immediately terminate this Agreement in the event that the other party, its administrators, members of the Board of Directors, legal representatives or shareholders are investigated, in any jurisdiction, for the commission of conduct consisting of or related to money laundering, financing of terrorism, corruption, fraud, bribery, understood within the framework of current criminal law under such jurisdiction, or in the event that they are in violation with the provisions of the Foreign Corrupt Practices Act of the United States of America.
These Service Level Standards apply to the Services as set forth in the Orders and the Nauta Offerings Terms.
Service Levels. Nauta will use commercially reasonable efforts to make the Services available 99.9% or more of the time during any calendar month. Subject to the exclusions set forth below, an outage will be defined as any time when the Services are not available due to a cause within the control of Nauta. The availability standard does not apply to any feature of the Services that Nauta identifies as a "beta" feature or service.
Service Credits. If You failed to achieve the availability percentage above, Company will be eligible to receive a credit ("Service Credit") calculated as a percentage of the Subscription Fees. The Service Credits increase is based on the amount of aggregate outage as set forth below.
| Service Availability | Service Credit |
|---|---|
| Less than 99.99% | 1% |
| Less than 99.9% | 4% |
| Less than 99% | 8% |
Service Credits are non-transferable and will be issued in U.S. dollars. To receive a Service Credit, Company must contact Nauta in writing within sixty (60) days following the outage and demonstrate to Nauta's reasonable satisfaction that Company's use of the Services was adversely affected as a result of the outage. Any validated Service Credits will be applied against the next open invoice due to Nauta by Company.
Exclusions. Nauta does not include in its calculation of downtime any time the Services are not provided due to: