Subscription Agreement

This Subscription Agreement (the “Agreement”) constitutes binding terms by and between by and between the Company identified in the Order Form (“Nilus”, or the “Company”) and the Customer identified in the Order Form (the “ Customer”). By signing the Order Form, Customer acknowledges these terms and represents that it has fully read and understood, and agrees to be bound by this Agreement (the date of such occurrence being the “Effective Date”). Customer may use the Services (as defined below) subject to the terms below. 

In the event of any conflict or inconsistency between provisions of this Order Form and the provisions of the Agreement, the Agreement shall prevail.

Nilus and Customer shall also be referred to herein individually as a “Party”, and together as the “Parties”. 

1. SUBSCRIPTION FOR USE OF THE PLATFORM. 
   1. Right to Use. Nilus hereby grants to Customer, and Customer hereby accepts, a limited, personal, non-exclusive, non-sublicensable, non-transferable and revocable (as set forth in Section 12.2) license to access and use the Platform in order to receive the Services, during the Term (as defined below), solely for Customer’s internal business purposes and all in accordance with and subject to the terms set forth in this Agreement and the Purchase Order. Access to the Platform will be granted by remote means on a Software-as-a-Service (SaaS) basis. Any upgrade and/or new releases (including without limitation, such that add new functionality or features), will not be licensed under this Agreement but shall be licensed separately as mutually agreed to by the parties in writing. Unless otherwise indicated, the term “Platform” also includes any redistributable components and any documentations (“Documentation”) provided or made available to Customer in connection with the operation of the Platform. Customer may only use the Platform in accordance with the Documentation, subject to the use limitations specified in this Agreement and applicable laws and regulations. Customer shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Platform, for ensuring their compatibility with the Platform. 
   2. Use by Affiliates. If the Order Form explicitly permits provides Customer the right to allow Customer’s Affiliate(s) to access and use the Platform, Customer shall: (i) provide each such Affiliate with a copy of this Agreement; (ii) ensure that each such Affiliate complies with the terms and conditions therein; and (iii) be responsible for any breach of these terms and conditions by any such Affiliate. “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with the Customer, where “Control” means ownership, directly or Indirectly, of 50% or more of the voting interest. 
   3. Account. An account will be created in connection with Customer’s use of the Platform (the “Account”), to be accessed and/or used solely by Customer's employees or service providers who are explicitly authorized by Customer to use the Platform as limited under the Purchase Order  (each, a “Permitted User(s)”). Customer hereby acknowledges and agrees: (i) to keep, and ensure that the Permitted Users will keep the Account login details and passwords secured at all times; (ii) to provide each Permitted User with a copy of the Documentation and to ensure that the Permitted Users comply with the Documentation and the terms and conditions herein; (iii) to remain solely responsible and liable for any activity that occurs in the Account and for any breach of this Agreement by a Permitted User; and (vi) to promptly notify Nilus in writing, if Customer becomes aware of any unauthorized access or use of the Account or the Platform.
   4. SLA. Subject to payment of all applicable fees Nilus shall provide the Customer (by itself or through its wholly owned subsidiary) with support and maintenance services in accordance with Company’s Services Level Agreement available here https://www.nilus.com/SLA hereto as may be amended from time to time by Company upon a 30 day written notice to Customer. 
2. CUSTOMER DATA. 
   1. Customer Data. The operation of the Platform and the provision of the Services requires the Customer to provide, upload and make available to Nilus certain data, including data regarding Customer's customers, financial documents, reports and any other materials that may be required for the provision of the Services (collectively, “Customer Data”). The Customer agrees that Nilus will collect, use and retain the Customer Data in order to provide the Services. Certain technical limitation on capacity may apply with respect to Customer Data. Nilus will use the customer Data in accordance with its Privacy Policy available here https://www.nilus.com/privacy-policy 
   2. Financial Accounts Linkage. Customer shall upload Customer Data to the Platform by way of integrating the Platform with Customer’s existing financial accounts on third-party platforms (collectively, “Third Party Accounts”). For this purpose Customer shall be required to provide Nilus with certain credentials and/or keys to third party services providers to all ow Nilus to access the Customer Data (collectively, the "Keys"). Customer hereby grants Nilus a limited, revocable, worldwide, non-exclusive, assignable (in accordance with the terms hereof), royalty-free license to access its Third Party Accounts and to retrieve the Customer Data. Customer hereby represents and warrants that it is the rightful owner of any Third Party Account(s) which it integrates with the Platform, or that it has (and will continue to have) all the necessary licenses, rights, consents, and permissions from the rightful owners of such Third Party Account(s) and the Customer Data, and that the Customer Data does not infringe any third party's intellectual property rights or other rights. The Third Party Accounts including without limitation and the application programing interfaces (APIs) which are used to derive the Customer Data are created and maintained by third parties who are not affiliated with and/or controlled by Nilus (e.g. Salt Edge, Plaid, Finicity, MX, other) and require that Customer provide its consent to their applicable third party service's terms of use and privacy policies as a condition to any use thereof. By providing Nilus the Keys, Customer agrees that Nilus may accept such third party service terms of use and privacy policies on behalf of Company. Nilus is not responsible and has no liability in connection with use of the Keys and/or uploading access to Third Party Accounts and/or obtaining the Customer Data through Third Party Accounts. 
   3. Personal Data. The Parties hereby agree that the Customer Data shall not and will not include any Personal Data (as defined below) of any entity or person. Customer undertakes and warrants that all Customer Data has been collected, processed and transferred to the Nilus in accordance with applicable laws. "Personal Data" shall mean any information which is classified as “personal data,” “personal information,” “personally identifiable information” (or similar term) under applicable privacy and security laws. The Parties agree that to the extent that the Services will include the processing of Personal Data as part of the Customer Data, the Parties will be bound to the Data Protection Addendum available here https://www.nilus.com/DPA which shall be added to this Agreement, as necessary to comply with applicable data protection laws. 
   4. Ownership of Customer Data. As between the Parties, the right, title and interest of any nature in and to the Customer Data, are and shall remain the exclusive property of the Customer and/or its licensors. Customer hereby grants to Nilus a non-revocable, worldwide, non-exclusive, assignable, sub-licensable, royalty-free license to access, analyze, monitor, use and process the Customer Data (including the incorporation of the Customer Data with other data obtained from or otherwise processed by Nilus and modification and the creation of derivative works of the Customer Data) in order to provide the Services. Except as set forth herein, nothing in this Agreement shall be construed as transferring any right, title or interests in the Customer Data to Nilus or any third party. 
   5. Results. The Platform includes a dashboard that provides the Customer with access to reports which are comprised of the results of processing the Customer Data by the Service (“Output Data”). The Customer is solely and exclusively responsible: (i) for all actions it takes in response to the Output Data; (ii) to thoroughly review the Output Data, check for any alerts or warnings issued by the Platform, address the findings specified in the Output Data, and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as the Customer deems appropriate as a result of the Output Data. 
   6. Anonymous Non-identifiable Analytics. Nilus may collect, disclose, publish and use in any other manner anonymous information which is derived from the use of the Platform and/or the Customer Data (i.e., non-identifiable information, aggregated and analytics information that does not identify an individual person or entity) (collectively, "Analytics Information"), in order to provide and improve the Platform and Services, for R&D purposes and for any other Nilus' legitimate business purpose. Nilus is and shall remain the sole owner of the Analytics Information. 
   7. Customer Data Accuracy. Customer hereby acknowledges that Nilus is unable to verify the accurateness, completeness and/or legality of the Customer Data provided to it hereunder, and Customer hereby represents and warrants that the Customer Data provided to Nilus hereunder is accurate and complete. Customer shall have sole responsibility for the accuracy, quality and legality of the Customer Data. It is the Customer's duty to update Nilus if the Customer Data changes or is inaccurate. 
3. FEES; PAYMENT TERMS. 
   1. Fees. The Services are conditioned on Customer’s payment in full of the applicable subscription fees set forth in the Order Form and/or SOW (“Fees”). All payments shall be made directly to Company. Following the Initial Subscription Term, Company reserves the right to change its fees at any time, and Customer shall be informed of such changes via an email and/or notification on the Platform prior to such changes (“Notification”). Should Customer not agree to the price changes, Customer sole remedy is to contact Company directly and to request to terminate its use of the Services prior to the effective date of the price changes as shall be detailed in the Notification.
   2. General. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced, in advance, and shall be paid within 30 days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of 1.5% per month and the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties, which shall be borne and paid by Customer. If any such tax or duty has to be withheld or deducted from any payment under this Agreement, Customer shall gross up the payment under this Agreement by the amount to ensure that after such withholding or deduction, the Company shall receive a net amount equal to the full amount of the relevant price had the payment not been subject to tax withholding
   3. Suspension. Company reserves the right to temporarily suspend provision of Services: (a) if Customer is 7 days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section ‎4 (Prohibited Uses); or (c) as required by law or at the request of governmental entities
4. PROHIBITED USES. Customer and/or its Permitted Users may only access the Platform via the Account. Except as expressly permitted herein, without the prior written consent of Nilus, Customer must not, and shall not allow any Permitted User or any other third party to, directly or indirectly: (i) modify, incorporate into or with other software, or create a derivative work of any part of the Platform; (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with or to anyone else; (iii) copy, distribute or reproduce the Platform for the benefit of third parties; (iv) disclose the results of any testing or benchmarking of the Platform to any third party, or use such results for Customer's own competing software development activities or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services which are competitive to Nilus' business; (v) modify, disassemble, decompile, reverse engineer, revise or enhance the Platform or attempt to discover the Platform’s source code or the underlying ideas or algorithms of the Platform; (vi) use the Platform in a manner that violates or infringes any rights of any third party, including but not limited to, right of privacy, proprietary rights or intellectual property rights of any third parties including without limitation copyright, trademarks, designs, patents and trade secrets; (vii) remove or alter any trademarks or other proprietary right notices displayed on or in the Platform or Documentation ; (ix) use the Platform for any purpose other than for the purpose for which the Platform is designated for or other than in compliance with the terms of this Agreement; (x) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce limitations on the use of the Platform; (xi) use any automated means to access the Platform; (xii) use the Platform without receiving all applicable consents for the collection and processing of Personal Data as required under any applicable law; (xiv) violate or abuse log-in and/or password protections governing access to the Platform; (xv) allow any third party other than the Permitted Users to use the Platform; (xvi) access, store, distribute, or transmit during the course of its use of the Platform any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material . Licnesee is solely responsible for the backup of its Customer Data
5. Mutual Warranties. Each Party represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) that the execution and performance of this Agreement will not conflict with any obligations it has towards third-parties or violate any provision of any applicable law. 
6. OWNERSHIP. The Platform is not for sale and is and shall remain Nilus' sole property. All right, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected, and/or related to the Platform and/or the Services and any and all derivative works, feedback, improvements, enhancements, updates, upgrades and customizations thereof or thereto (in each case regardless of whether specifically included in the Services ordered by the Customer or not) are and shall remain owned solely by Nilus or its licensors. This Agreement does not convey to Customer any interest in or to the Platform but only, as aforesaid, a limited revocable right to use the Platform, in accordance with the terms of this Agreement, and nothing herein constitutes a waiver of the Nilus' Intellectual Property Rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
7. CONFIDENTIALITY. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and whether marked as confidential or proprietary or which under the circumstances ought to reasonably be treated as such, that is related, directly or indirectly to the business, activities, methods or facilities of a Party that: (i) is not generally known to the public, (ii) derives value, economic or otherwise, from not being generally known to the public or to other third-parties who can obtain value from its disclosure or use, and (iii) is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own Confidential Information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, a recipient Party may disclose the other Party's Confidential Information to its officers, employees, services providers or advisors solely on a "need to know" basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of its disclosing Party. 
8. CHANGES TO PLATFORM. Nilus may change the Platform's layout and design and the availability of the content and functions included therein or may change the form, features or nature of the Platform, from time to time, without giving the Customer any prior notice, provided that such change does not have a material effect on the Platform. 
9. LIMITED WARRANTIES. 
   1. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM (INCLUDING ANY OUTPUT DATA) AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, NILUS DOES NOT WARRANT THAT THE PLATFORM (INCLUDING THE OUTPUT DATA) AND/OR THE SERVICES WILL INCREASE THE CUSTOMER'S REVENUES OR MEET CUSTOMER'S REQUIREMENTS, THAT THE PLATFORM'S OPERATION AND THE SERVICES WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FALSE-POSITIVES FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER SOFTWARE LIMITATIONS. WITHOUT DEROGATING FROM THE FOREGOING, NILUS SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S DETERMINATION WHETHER TO ACT ON THE BASIS OF ANY OUTPUT DATA AND FOR ANY OUTCOMES OF SUCH DECISION. 
   2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NILUS EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY.
    1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY'S, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR MATERIALS), SUFFERED BY ANY PERSON, ARISING FROM, RELATED TO, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE PLATFORM AND/OR THE OUTPUT DATA AND/OR THE SERVICES, EVEN IF NILUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
    2. EXCEPT IN THE EVENT OF  WILLFUL MISCONDUCT,  IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, NILUS', ITS LICENSORS', SUPPLIERS', AFFILIATES' DISTRIBUTORS' AND/OR RESELLERS' TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE CUSTOMER'S USE OR INABILITY TO USE THE PLATFORM AND/OR THE OUTPUT DATA AND/OR THE SERVICES AND/OR CUSTOMER DATA SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO NILUS UNDER THE APPLICABLE PURCHASE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
11. INDEMNIFICATION. 
    1. The Customer agrees to defend, indemnify and hold harmless Nilus, its officers, directors, employees, agents and resellers, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) the Customer's unauthorized use of  the Platform; and (ii) a third-party claim, suit or proceeding alleging that the use of the Customer Data within the scope of this Agreement infringes, or may infringe, any intellectual property, publicity or privacy right of a third party.
    2. Nilus agrees to defend, indemnify and hold harmless Customer from and against any damages finally awarded in judgement against Customer arising directly from a third party actions or suits brought against Customer, alleging that the Platform used by Customer in accordance with this Agreement infringes intellectual property rights of such third party, provided that as a condition to such defense and indemnification Customer (i) notifies Nilus promptly in writing of such claim; and (ii) grants Nilus sole control and authority to handle the defense or settlement of any such claim and will provide Nilus with all reasonable information and assistance, at Nilus' expense. Nilus will not be bound by any settlement that Customer enters into without Nilus' prior written consent. This Section 11.2 shall not apply during a Trial Term, if any, as set forth in the Purchase Order. 
12. TERM AND TERMINATION. 
    1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until for the duration of the initial subscription term specified in the Order Form (the “Term”). 
    2. Termination. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof; except that the curing period for non-payment shall be ten (10) days following said notice. In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, and such event is not cancelled within 30 days, the other Party shall have the right to immediately terminate this Agreement. 
    3. Effects of termination. Upon termination or expiration of this Agreement: (i) Nilus will cease from providing the Customer with access to the Platform and the Services hereunder, the licenses granted to Customer under this Agreement shall expire, and Customer shall discontinue all further use of the Platform; (ii) Customer shall immediately permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control; (iii) each Party shall immediately return and/or permanently delete (as instructed by the other Party) the other Party's Confidential Information, other than data that the recipient is required to retain by law, regulation or governmental order; (iv) Nilus will retain any Analytics Information which derives from the use of the Platform and from the provision of the Services, as detailed in Section 2.6. Upon termination or expiration of this Agreement, the Customer will lose all access to any Customer Data and/or Output Data that is available in the Platform. The Customer shall be solely responsible to download the Customer Data and/or Output Data prior to termination of this Agreement. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it under applicable law.
    4.  MISCELLANEOUS. This Agreement, including all its exhibits, represents the complete agreement concerning the subject matter hereof and supersedes and cancels all prior agreements (oral or written), contemporaneous proposals, negotiations, conversations, and/or discussions between the Parties. This Agreement may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The Customer may not assign its rights or obligations under this Agreement without Nilus' prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement without the consent of the other in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. In the event of a disagreement or dispute between the Customer and Company relating to or arising from this Agreement the parties shall aim at amicably resolving any such dispute within 7 days as of a party’s notice of a disagreement. In the event such disagreement or dispute cannot be settled or adjudicated informally, Customer and the Customer agree that arbitration in accordance with the Federal Arbitration Act shall be the exclusive means of resolving such dispute, except for where injunctive relief is necessary to prevent irreparable harm. Such disputes shall be submitted to the American Arbitration Association (“AAA”) for binding arbitration in accordance with the AAA’s commercial rules by a single arbitrator. Such arbitration shall be held in Wilmington, Delaware. Judgment upon any award rendered may be entered in any court of competent jurisdiction; provided, however, that the arbitrator shall have no authority to add to, modify, change or disregard any lawful terms of this Agreement.This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Nilus will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Nilus (i.e., force majeure events). The headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. 

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