nova8OS End-User License Agreement

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

“Cloud Platform” means the nova8 Cloud Platform, which is provided with nova8OS as a single integrated platform and is governed by the nova8 Cloud Platform Terms of Service.

“Device” means a single physical or virtual host on which nova8OS is installed and for which a Subscription entitlement has been issued.

“Documentation” means the user guides and technical materials NOVA8 makes generally available for nova8OS.

“Edition” means the applicable edition of nova8OS (Standard, Enterprise, or Sovereign) as identified on the Order.

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

“Software” means the nova8OS host operating system in object-code form, including its security components, license and activation mechanisms, and any Updates, together with the Documentation.

“Subscription” means Customer’s time-limited right to use the Software for the term stated in the Order: a per-Device right in Persistent Mode, and a per-seat right within a License Pool in Non-Persisted Mode.

“Update” means any patch, update, upgrade, or modification to the Software that NOVA8 makes available.

“Mode” means the runtime mode of the Software identified on the Order: Persistent Mode or Non-Persisted Mode.

“Persistent Mode” means the Software installed to a Device with persistent, encrypted local storage, in which license and offline state persist across reboot.

“Non-Persisted Mode” means the RAM-resident (non-persisted) configuration of the Software that retains no local license or offline state across reboot.

“Evaluation License” means a time-limited, non-renewable license granted under a separate signed evaluation agreement solely to evaluate the Software.

“License Pool” or “Pool” means the pre-purchased quantity of concurrent Non-Persisted Mode entitlements for an Edition, against which each running Non-Persisted Mode Device consumes one seat.

2.1 Grant. Subject to Customer’s continuous compliance with this Agreement and payment of all applicable fees, NOVA8 grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license, during the Subscription term, to install and use the Software in object-code form solely (a) on the number of Devices and in the Edition specified in the Order, and (b) for Customer’s own internal business or operational use.

2.2 Editions and Device Count. The features available to Customer depend on the Edition purchased and are provided on an as-generally-available basis and only as enabled for the applicable Order. Customer shall not exceed the licensed Device count or use features of an Edition it has not purchased.

2.3 Reservation of Rights. The Software is licensed, not sold. NOVA8 and its licensors retain all right, title, and interest in and to the Software and all intellectual property rights therein. No rights are granted except as expressly set forth in this Agreement.

2.4 Runtime Modes and License Pool. The Software is licensed by Edition and by Mode. In Persistent Mode, the license is granted per Device. In Non-Persisted Mode, the license is granted as a Pool of concurrent seats for the applicable Edition; each running Non-Persisted Mode Device consumes one seat for the period it runs and releases that seat when it shuts down, and Customer shall not operate more concurrent Non-Persisted Mode Devices than its Pool permits. Every Non-Persisted Mode Device consumes a Pool seat regardless of whether a fee is charged for it, including under any no-fee or negotiated license.

2.5 Evaluation. NOVA8 may grant a single, non-renewable Evaluation License of up to sixty (60) days per Device, executed under a separate signed evaluation agreement, for either Mode, solely to evaluate the Software. Evaluation use excludes production, resale, sublicensing, embedding in a product or service, and any revenue-generating or business-primary use; is provided “AS IS” without support or warranty; and terminates automatically at the end of the evaluation period. No Evaluation License is granted automatically.

2.6 Paid Use in All Modes. Any use of the Software that generates revenue, is embedded in a product or service made available to third parties, or constitutes a material means of Customer’s business, in either Mode, requires a paid Subscription or negotiated terms. Short-lived provisioning, onboarding, or bootstrap use that requires support is available only under negotiated terms and continues to consume Pool seats.

Customer shall not, and shall not permit any third party to: (a) copy the Software except as reasonably necessary for the licensed installation and for archival backup; (b) modify, translate, adapt, or create derivative works of the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, or internal structure of the Software, except to the limited extent this restriction is prohibited by applicable law; (d) rent, lease, lend, sell, sublicense, distribute, host as a service, or otherwise make the Software available to any third party; (e) remove, alter, or obscure any proprietary notice, label, or identifier on or in the Software; (f) exceed the licensed Device count or License Pool seat count, or otherwise circumvent any license, activation, metering, or entitlement mechanism; (g) circumvent, disable, interfere with, or attempt to defeat any security, integrity, anti-tamper, attestation, or tamper-response feature of the Software; or (h) use the Software in violation of applicable law, including export control and sanctions laws.

4.1 Acknowledgment. Customer acknowledges that the Software is a self-defending operating system that includes security, integrity-verification, anti-tamper, and (depending on Edition) remote-attestation and graduated tamper-response capabilities designed to detect and respond to unauthorized modification or compromise. Customer consents to the operation of these features as part of normal Software behavior.

4.2 Tamper Response. Customer acknowledges that, depending on the Edition and configuration, the Software’s response to detected tampering or integrity failure may include logging and alerting, restriction or quarantine of affected functionality, revocation of entitlements, and, for the Sovereign Edition, destructive responses such as protected-data erasure on the affected Device. Customer is solely responsible for maintaining backups of its data. NOVA8 shall have no liability for loss of data or availability resulting from a tamper-response action triggered by conduct in violation of Section 3 or by third-party compromise of a Device.

4.3 No Interference. Customer shall not disable, circumvent, or interfere with these features, and acknowledges that doing so may render the Software inoperable and terminate the license under Section 9.

4.4 Non-Persisted Mode; Connectivity and Expiry. Customer acknowledges that Non-Persisted Mode retains no local license state across reboot. A connected Non-Persisted Mode Device must validate its entitlement with NOVA8’s license service, and its offline grace period is measured from its last successful validation. A disconnected or air-gapped Non-Persisted Mode Device operates under a time-limited license embedded at order or build time and ceases licensed operation at the end of that term. On expiry or failure of validation beyond the applicable grace period, protected container functionality is disabled, although the Device continues to boot.

5.1 Updates. NOVA8 may make Updates available during the Subscription term. Certain Updates may be designated as required for continued security, integrity, or entitlement validity, and the Software may install such Updates automatically. Updates are governed by this Agreement unless accompanied by separate terms.

5.2 Third-Party Components. The Software may include third-party or open-source components licensed under their own terms. Those terms govern such components to the extent required, and, to the extent of a conflict for those components, control over this Agreement. A list of such components and their licenses is available in or with the Documentation.

6.1 THE SOFTWARE 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 SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT IT WILL MEET CUSTOMER’S REQUIREMENTS.

6.2 HIGH-RISK USE. THE SOFTWARE IS NOT AUTHORIZED FOR USE IN ANY APPLICATION IN WHICH FAILURE COULD REASONABLY BE EXPECTED TO RESULT IN DEATH OR SERIOUS BODILY INJURY (INCLUDING LIFE-SUPPORT, AVIATION FLIGHT-CRITICAL, OR NUCLEAR SYSTEMS) WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF AN AUTHORIZED OFFICER OF NOVA8.

7.1 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 (INCLUDING ANY LOSS OR CORRUPTION OF DATA RESULTING FROM ANY TAMPER-RESPONSE ACTION TAKEN IN GOOD FAITH), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROVIDED IN SECTION 8.3, NOVA8’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE 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.

7.3 Single Application of Caps. The Software and the Cloud Platform are a single integrated platform sold for a single price. NOVA8’S AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE nova8 CLOUD PLATFORM TERMS OF SERVICE, 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.

7.4 Basis of the Bargain. The Parties acknowledge that the disclaimers and limitations in Sections 6 and 7 are an essential basis of the bargain and reflect the allocation of risk between them.

8.1 NOVA8 Indemnity. NOVA8 shall defend Customer against any third-party claim alleging that the Software, as provided by NOVA8 and used in accordance with this Agreement, 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 8.3. This obligation does not apply to claims arising from (a) use in combination with items not provided by NOVA8 where the claim would have been avoided absent the combination; (b) modification other than by NOVA8; (c) use other than in accordance with the Documentation; or (d) failure to use a non-infringing Update made available by NOVA8. If the Software becomes, or is likely to become, subject to an infringement claim, NOVA8 may, at its option, procure the right to continue use, modify or replace the Software to be non-infringing, or terminate the affected Subscription and refund the unused, prepaid fees. This Section states NOVA8’s entire liability and Customer’s exclusive remedy for infringement.

8.2 Customer Indemnity. Customer shall defend and indemnify NOVA8 against any third-party claim arising from (a) Customer’s use of the Software in violation of this Agreement or applicable law; (b) Customer’s data or content; or (c) Customer’s combination of the Software with items not provided by NOVA8.

8.3 IP Indemnity Cap. NOTWITHSTANDING ANY OTHER PROVISION, NOVA8’S TOTAL LIABILITY UNDER SECTION 8.1 (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).

8.4 Aggregate IP Indemnity Cap. NOTWITHSTANDING SECTION 8.3 AND ANY OTHER PROVISION, NOVA8’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER SECTION 8.1 (AND UNDER THE CORRESPONDING INDEMNITY IN THE nova8 CLOUD PLATFORM TERMS OF SERVICE) 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).

9.1 Term. This Agreement is effective on Customer’s first acceptance or use and continues for the Subscription term stated in the Order and any renewals.

9.2 Termination. NOVA8 may suspend or terminate the license if Customer materially breaches this Agreement (including Sections 3 or 4) and fails to cure the breach within thirty (30) days after written notice, or immediately upon notice for a breach of Section 3 that by its nature cannot be cured. The license terminates automatically on expiration of the Subscription if not renewed.

9.3 Effect. On termination or expiration, Customer shall cease all use of the Software and delete or destroy all copies. Sections 2.3, 3, 4.2, 6, 7, 8, 9.3, 10, and 11 survive.

10.1 Export. The Software may be subject to U.S. export control and sanctions laws. Customer shall not export, re-export, or provide access to the Software 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. The Sovereign Edition is licensed solely to United States entities for deployment and use within the United States; Customer shall not use, export, transfer, or provide access to the Sovereign Edition outside the United States, or to any non-United States entity, without NOVA8’s prior written consent.

10.2 U.S. Government. The Software is commercial computer software and commercial computer software documentation under FAR 2.101 and DFARS 252.227-7014. U.S. Government use, duplication, or disclosure is subject to this Agreement and the restrictions in applicable FAR/DFARS clauses.

11.1 Governing Law; Forum. This Agreement is 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.

11.2 Relationship to Other Terms. Customer’s use of the Cloud Platform is governed by the nova8 Cloud Platform Terms of Service. This Agreement, together with the applicable Order and referenced terms, is the entire agreement regarding the Software and supersedes prior understandings on that subject.

11.3 Assignment. Customer may not assign this Agreement without NOVA8’s prior written consent, except to a successor to all or substantially all of its business or assets that is not a competitor of NOVA8 and that agrees in writing to be bound. Any other purported assignment is void.

11.4 No Purchase Through Reseller Alters These Terms. If Customer purchased through an Authorized Reseller, this Agreement governs Customer’s use of the Software; the Reseller is not authorized to modify, waive, or make any representation or warranty beyond this Agreement, and no Reseller term is binding on NOVA8.

11.5 Severability; Waiver; Amendment. If any provision is held unenforceable, the remainder remains in effect. No waiver is effective unless in writing. NOVA8 may update this Agreement for new Subscriptions or renewals; the version accepted for a given Subscription governs that Subscription.