nova8 Cloud Platform Terms of Service

“Authorized Reseller” means a reseller appointed by NOVA8 through which Customer may have purchased a Subscription.

“Cloud Platform” means NOVA8’s hosted fleet-operations and management service made available to Customer, including its web interfaces, APIs, and Documentation.

“Customer Data” means data and content that Customer or its Devices submit to or generate within the Cloud Platform, including device telemetry, configuration, fleet-operations data, and account information.

“Device” means a host running nova8OS for which a Subscription entitlement has been issued.

“Order” means the order, quote, or subscription record identifying the Edition, Device count, and term, whether placed directly with NOVA8 or through an Authorized Reseller.

“SLA” means the nova8 Cloud Platform Service Level Agreement referenced in Section 6.

“Subscription” means Customer’s time-limited right to access and use the Cloud Platform for the registered Devices for the term stated in the Order.

2.1 Right to Access. Subject to these Terms and payment of applicable fees, NOVA8 grants Customer a limited, non-exclusive, non-transferable right to access and use the Cloud Platform during the Subscription term for its own internal business or operational use in connection with its registered Devices.

2.2 Accounts and Administration. Customer is responsible for configuring its tenant, managing user accounts and credentials, and all activity occurring under its accounts. Customer shall maintain the confidentiality of credentials and promptly notify NOVA8 of any suspected unauthorized use.

2.3 Reservation of Rights. NOVA8 retains all right, title, and interest in and to the Cloud Platform and all intellectual property rights therein. No rights are granted except as expressly set forth in these Terms.

3.1 Customer shall use the Cloud Platform in accordance with the nova8 Acceptable Use Policy (the “AUP”), which is incorporated by reference. Without limiting the AUP, Customer shall not (a) exceed its licensed Device count or circumvent any entitlement mechanism; (b) probe, scan, or test the vulnerability of, or breach the security of, the Cloud Platform except with NOVA8’s prior written authorization; (c) interfere with or disrupt the integrity or performance of the Cloud Platform; (d) reverse engineer or attempt to derive source code from the Cloud Platform; or (e) use the Cloud Platform in violation of applicable law, including export and sanctions laws.

4.1 Ownership. As between the Parties, Customer owns its Customer Data. Customer grants NOVA8 a non-exclusive right to host, process, transmit, and use Customer Data solely to provide, secure, maintain, and improve the Cloud Platform and to perform its obligations under these Terms.

4.2 Personal Data. NOVA8 processes account, credential, and business-contact information of Customer’s personnel as an independent controller for account administration, authentication, billing, security, and service operation, as described in its Privacy Policy. To the extent Customer Data submitted to the Cloud Platform contains personal data, NOVA8 processes it as Customer’s processor in accordance with the nova8 Data Processing Addendum (the “DPA”), which is incorporated by reference and applies automatically to any such processing. The Cloud Platform is designed for device and fleet operations and is not intended as a repository for personal data; Customer shall not submit special-category personal data, protected health information, payment card data, or similar high-risk regulated data as Customer Data, and shall minimize the personal data it submits.

4.3 Aggregated and Operational Data. NOVA8 may collect and use configuration, performance, security, and usage data, and may create de-identified and aggregated data that does not identify Customer or any individual, for the purpose of operating, securing, and improving its products and services.

4.4 Security. NOVA8 shall maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, or disclosure. Customer is responsible for maintaining its own backups of any data it cannot afford to lose.

5.1 NOVA8 may suspend Customer’s access to the Cloud Platform, in whole or in part, if (a) Customer’s use poses a security risk or may harm NOVA8 or others; (b) Customer breaches Section 3 or the AUP; (c) required by law or a governmental authority; or (d) Customer’s account is overdue. NOVA8 will use commercially reasonable efforts to provide notice and to limit any suspension to what is reasonably necessary.

6.1 NOVA8 will use commercially reasonable efforts to make the Cloud Platform available in accordance with the SLA, which provides a target of 99.5% monthly uptime, subject to the exclusions, maintenance windows, and remedies set forth in the SLA. The service credits described in the SLA are Customer’s sole and exclusive remedy for any failure to meet the SLA.

7.1 Fees for the Cloud Platform are included in the per-Device, per-year Subscription price for the applicable Edition and are payable as set forth in the Order (directly to NOVA8 or to the Authorized Reseller). The Cloud Platform is not sold or priced separately from nova8OS.

8.1 THE CLOUD PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOVA8 DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NOVA8 DOES NOT WARRANT THAT THE CLOUD PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER’S SOLE REMEDIES FOR AVAILABILITY FAILURES ARE THE SERVICE CREDITS IN THE SLA.

9.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NOVA8 BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA, ARISING OUT OF OR RELATED TO THESE TERMS OR THE CLOUD PLATFORM, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROVIDED IN SECTION 10.3, NOVA8’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE CLOUD PLATFORM SHALL NOT EXCEED THE FEES PAID TO NOVA8 OR ITS AUTHORIZED RESELLER FOR THE APPLICABLE SUBSCRIPTION IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

9.3 Single Application of Caps. The Cloud Platform and nova8OS are a single integrated platform sold for a single price. NOVA8’S AGGREGATE LIABILITY UNDER THESE TERMS AND THE nova8OS EULA, COMBINED, SHALL NOT EXCEED A SINGLE APPLICATION OF THE CAPS SET FORTH HEREIN, AND THE CAPS SHALL NOT BE STACKED OR APPLIED SEPARATELY UNDER EACH AGREEMENT FOR THE SAME EVENT OR CAUSE.

9.4 Basis of the Bargain. The disclaimers and limitations in Sections 8 and 9 are an essential basis of the bargain and reflect the allocation of risk between the Parties.

10.1 NOVA8 Indemnity. NOVA8 shall defend Customer against any third-party claim alleging that the Cloud Platform, as provided by NOVA8 and used in accordance with these Terms, infringes a valid U.S. patent, copyright, or registered trademark, or misappropriates a trade secret, and shall pay damages finally awarded (or amounts in settlement approved by NOVA8), subject to Section 10.3, with the same exclusions and options (procure/modify/replace/terminate-and-refund) as set forth in the EULA. This states NOVA8’s entire liability and Customer’s exclusive remedy for infringement.

10.2 Customer Indemnity. Customer shall defend and indemnify NOVA8 against any third-party claim arising from (a) Customer Data; (b) Customer’s use of the Cloud Platform in violation of these Terms, the AUP, or applicable law; or (c) Customer’s submission of personal or regulated data in violation of Section 4.2.

10.3 IP Indemnity Cap. NOTWITHSTANDING ANY OTHER PROVISION, NOVA8’S TOTAL LIABILITY UNDER SECTION 10.1 (INCLUDING DEFENSE COSTS, FEES, SETTLEMENTS, JUDGMENTS, REFUNDS, AND PROCURE/MODIFY/REPLACE COSTS) SHALL NOT EXCEED THE GREATER OF (i) THE FEES PAID FOR THE APPLICABLE SUBSCRIPTION IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, OR (ii) TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS ($250,000).

10.4 Aggregate IP Indemnity Cap. NOTWITHSTANDING SECTION 10.3 AND ANY OTHER PROVISION, NOVA8’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER SECTION 10.1 (AND UNDER THE CORRESPONDING INDEMNITY IN THE nova8OS EULA) ARISING FROM THE SAME OR A COMMON CAUSE, ACROSS ALL CUSTOMERS AND AUTHORIZED RESELLERS IN THE AGGREGATE, SHALL NOT EXCEED THE GREATER OF (i) THE TOTAL FEES RECEIVED BY NOVA8 IN THE TWELVE (12) MONTHS PRECEDING THE FIRST SUCH CLAIM, OR (ii) ONE MILLION U.S. DOLLARS ($1,000,000).

11.1 Term. These Terms apply for the Subscription term stated in the Order and any renewals.

11.2 Termination. Either Party may terminate for the other’s uncured material breach on thirty (30) days’ written notice (ten (10) days for non-payment). NOVA8 may terminate immediately for Customer’s breach of Section 3, Section 4.2, or the AUP that cannot be cured.

11.3 Effect. On expiration or termination, Customer’s right to access the Cloud Platform ceases. For thirty (30) days following termination (other than termination for Customer’s uncured breach), NOVA8 will make Customer Data available for export in a commercially reasonable format upon request; thereafter NOVA8 may delete Customer Data in the ordinary course. Sections 2.3, 4, 8, 9, 10, 11.3, 12, and 13 survive.

12.1 The Cloud Platform may be subject to U.S. export control and sanctions laws. Customer shall not access or use the Cloud Platform in violation of such laws and represents that it is not located in, or a national of, any embargoed country and is not on any U.S. denied- or restricted-party list. Use by the U.S. Government is subject to commercial-item treatment consistent with the EULA.

13.1 Governing Law; Forum. These Terms are governed by the laws of the State of Wyoming, without regard to conflict-of-laws rules, and the Parties consent to the exclusive jurisdiction and venue of the state courts located in Sheridan County, Wyoming, and the United States District Court for the District of Wyoming. The U.N. Convention on Contracts for the International Sale of Goods does not apply.

13.2 Relationship to Other Terms. These Terms, the EULA, the AUP, the SLA, the applicable Order, and any referenced terms constitute the entire agreement regarding the Cloud Platform and supersede prior understandings on that subject. In the event of a conflict, an executed Order controls over these Terms only where it expressly references the provision modified.

13.3 Resellers. If Customer purchased through an Authorized Reseller, these Terms govern Customer’s use of the Cloud Platform; the Reseller is not authorized to modify, waive, or make any representation or warranty beyond these Terms, and no Reseller term is binding on NOVA8.

13.4 Assignment; Changes. Customer may not assign these Terms without NOVA8’s prior written consent except to a non-competitor successor to its business or assets that agrees in writing to be bound. NOVA8 may update these Terms for new Subscriptions or renewals; the version accepted for a given Subscription governs that Subscription. No waiver is effective unless in writing; if any provision is unenforceable, the remainder remains in effect.