This Customer Agreement is between Nitric Pty Ltd ABN 70 647 354 532 (Nitric) and the purchaser of the Service subscription specified in the Order (Customer).
1.1 Access and use
Nitric grants Customer a non-exclusive and non-transferable right to:
- access and use the Service; and
- permits its End Users to access and use the Service,
- to auto-provision, and deploy Customer Software into, the Cloud Environments during the Subscription Term, subject to and in accordance with the Agreement (including any usage limitations specified in the Order).
1.2 Service Restrictions
Customer must not, and must ensure that End Users do not:
- access, use, or otherwise exploit the Service, except as permitted under clause 1.1;
- reverse engineer, decompile or disassemble the Service, view or gain access to the source code to the Service, or use the Service to provide any product or service that is an alternative, substitute or competitor to the Service;
- copy, develop any modification, enhancement, derivative work or other development of the Service or incorporate any Customer, End User or third party material into the Service (except Customer Material as expressly permitted under the Agreement);
- upload to the Service any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
- remove any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Service;
- access or use the Service by any unauthorised means, including using any bot, script, spider, crawler, scraper, or automated device; or
- allow any person (other than authorised End Users) to access or use the Service for any purpose without Nitric's consent.
1.3 Support Services
Paid subscriptions to the Service include the provision of the Support Services for the duration of the Subscription Term. Customer must provide all information and assistance reasonably required by Nitric to perform the Support Services.
1.4 Free use
Customer acknowledges and agrees that any free use of the Service is limited to use of the Service "as is" under the 'Developer' plan subject to the limitations for that plan specified at https://deploy.nitric.io/pricing and excludes all Support Services, Professional Services, warranties, indemnities, obligations and liabilities under the Agreement.
1.5 Professional Services
If Customer wishes to purchase Professional Services from Nitric, the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.
2 Customer responsibilities
2.1 Service dependencies
The functionality of the Service is dependent upon Customer ensuring that:
- all Customer Software has been developed using the Nitric Development Framework;
- all Customer Software is properly coded, supported and maintained and free from errors, defects and branching issues;
- the Customer Software Repository and Cloud Environments are properly configured and connected to the Service in accordance with Nitric's APIs for the Service at all times during the Subscription Term; and
- it obtains and maintains all hardware, software, services and network connectivity necessary to access and use the Service at all times during the Subscription Term.
2.2 Usage responsibilities
Customer uses the Service at its own risk and is solely responsible for:
- ensuring that the Service is accessed and used strictly in accordance with the Agreement;
- each act and omission of End Users as though it were an act or omission of Customer;
- ensuring that Customer's, and each End User's, access and use of the Service, and all Customer Software uploaded to the Service, complies with all applicable laws, regulations and contractual obligations;
- obtaining all consents, licences and approvals necessary to lawfully Process any Customer Material (including those protected by Intellectual Property Rights, confidentiality or privacy) uploaded to the Service;
- ensuring that the Cloud Environment is secure, scalable, compatible with the Customer Software and otherwise fit for Customer's requirements;
- implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Customer and its End Users; and
- all dealings with its End Users and must ensure that no End User makes any Claim against Nitric in connection with the Service, Support Services, Professional Services or the Agreement.
2.3 Third Party Material
The Service may integrate or interoperate with Cloud Environments, Customer Software Repositories and other Third Party Material. Customer acknowledges and agrees that:
- Nitric has no control over, and is not responsible for, any Third Party Material;
- Third Party Material is provided directly to Customer by the relevant Third Party Material provider, does not form part of the Service and is not governed by the Agreement;
- Customer is solely responsible for entering into, and complying with, its own agreement with each Third Party Material provider necessary for Customer's proposed use of the Service;
- Customer uses all Third Party Material at its own risk and that (as between Customer and Nitric) Customer is solely responsible for all costs, Claims and Losses relating to Third Party Material; and
- Third Party Material is subject to change, suspension, termination or discontinuation by at any time and without notice by the Third Party Material provider (and that this may cause the Service to cease to be compatible).
Customer acknowledges and agrees that Nitric is not liable for any failure of the Service or any delay in, or failure to perform, its obligations under the Agreement (or any associated Claims or Losses) to the extent that the delay or failure is caused by:
- Customer's breach of the Agreement, including its responsibilities under this clause 2; or
- Customer Material or Third Party Materials.
3 Fees, invoicing and payment
Fees are payable for all paid subscriptions to the Service, Support Services and any Professional Services. Unless agreed otherwise in an Order, Nitric may increase its Fees at the following times:
- upon renewal of, or change to, Customer's subscription; and
- at any other time provided that the increased Fees will only apply to Orders entered into after the date of the Fee increase.
3.2 Invoicing and payment
Nitric must issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer must pay all Fees invoiced by Nitric, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by Nitric are non-cancellable and non-refundable, except as expressly set out in the Agreement.
3.3 Late Payment
If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, Nitric may:
- suspend Customer's right to access and use the Service; and
- charge interest at a rate of 2 percent per annum above the current published overdraft rate of the Commonwealth Bank of Australia,
- in each case, from the due date for payment until the date that payment is made by Customer.
Nitric may on 14 days' notice conduct an audit of Customer's use of the Service and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to its End Users, records, premises and personnel reasonably requested by Nitric in connection with any such audit. Nitric must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Service in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer must immediately:
- pay to Nitric all additional Fees payable in respect of any excess use (at Nitric's then current list prices) in addition to Nitric's reasonable audit costs; and
- take all other steps required to remedy the breach of the Agreement and prevent its recurrence at Customer's own cost.
The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time of payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).
4 Nitric Intellectual Property Rights
All Intellectual Property Rights in and to the Service and output of the Support Services and Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Service developed by or on behalf of Customer and End Users, vests or remain vested in Nitric or its licensors. If any such Intellectual Property Right vests in Customer or End Users, Customer hereby assigns, and must procure that each End User assigns, that Intellectual Property Right to Nitric with immediate effect. Customer must take all further steps (including execution of documents) necessary to give effect to this clause.
4.2 No other rights
Neither Customer nor any End User receives any right, title or interest in or to the Service other than the right to access and use it expressly granted to Customer under clause 1.1.
4.3 Notice of infringement
Customer must immediately notify Nitric in writing upon becoming aware of any:
- infringement or unauthorised use of the Service by any person, including any End User; or
- Claim by any person that use of the Service in accordance with the Agreement infringes the Intellectual Property Rights of any person.
If the Service is the subject of an IP Claim, Nitric may (at its cost and option):
- procure the right for Customer to continue using the Service;
- modify the Service such that it no longer infringes the relevant Intellectual Property Rights; or
- terminate the Agreement and provide Customer with a refund of any Fees paid in advance for use of the Service after the effective date of termination.
5 Customer Material
As between Nitric and Customer, all rights in and to the Customer Material, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Customer Material developed by or on behalf of Nitric, vest or remain vested in Customer at all times. If any Intellectual Property Right in the Customer Material vests in Nitric, Nitric hereby assigns that Intellectual Property Right to Customer with immediate effect. Nitric must take all further steps (including execution of documents) necessary to give effect to this clause.
- grants Nitric, its sub-processors and their respective personnel a licence to Process the Customer Material (including all Intellectual Property Rights therein); and
- warrants that it has obtained all consents, licences and approvals from third parties necessary to enable Nitric, its sub-processors and their respective personnel to Process the Customer Material,
- in each case, as necessary to provide the Service, Support Services, any Professional Services and as contemplated by the Agreement.
6 Privacy and Data
6.2 Data Security
Nitric must implement reasonable technical and organisational security controls to protect the Customer Material against loss, unauthorised access, modification and disclosure (Data Breach) in accordance with applicable Privacy Laws, including:
- not disclosing the Customer Material except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and
- maintaining appropriate business continuity and disaster recovery measures for the Service, provided that Customer remains responsible for regularly downloading and backing up its own Customer Material using the Service.
6.3 Data Breaches
If either party becomes aware of any actual or suspected Data Breach affecting the Customer Material:
- that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;
- Nitric must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach (at Customer's cost);
- Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.2(e);
- Customer must not reference Nitric in any notification or communication relating to the actual or suspected Data Breach without Nitric's prior written approval as to the form and content of the reference; and
- Nitric may make a notification or communication about the Data Breach if Customer fails to do so and Nitric is required to do so under applicable Privacy Laws.
6.4 Usage data and analyses
- use data relating to Customer's and End User's use of the Service for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Service; and
- freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Service and the Customer Material in anonymised and aggregated form such that neither Customer nor End Users are identifiable.
7.1 Obligation of confidence
Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 7.
7.2 Permitted use
The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.
7.3 Permitted disclosures
The Recipient may disclose Confidential Information of the Discloser:
- to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
- to the extent required by law or the rules of any stock-exchange; and
- with the prior written consent of the Discloser.
- To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party's name and logo, without being in breach of this clause.
8 Warranties and indemnities
TO THE EXTENT PERMITTED BY LAW, NITRIC PROVIDES THE SERVICE "AS IS" AND EXCLUDES ALL CONDITIONS, WARRANTIES AND GUARANTEES OTHER THAN THOSE SET OUT EXPRESSLY IN THE AGREEMENT. WITHOUT LIMITATION, NITRIC DOES NOT WARRANT THAT THE SERVICE OR ANY SUPPORT SERVICE WILL BE:
- CONTINUOUS, FREE FROM ERRORS, OMISSIONS, DEFECTS, SECURITY RISKS OR VULNERABILITIES;
- FIT FOR ANY PURPOSE OR MEET THE REQUIREMENTS OF CUSTOMER OR ANY END USER.
8.2 Non-excludable terms
If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, Nitric's liability for breach of such condition, warranty or guarantee is limited (at Nitric's option) to resupply of the Service, Support Service or Professional Service or payment of the cost of the same.
8.3 Nitric indemnity
Nitric must indemnify Customer against all Losses suffered or incurred by Customer arising out of or in connection with:
- any IP Claim;
- any breach of clause 5.2, 6 or 7 by Nitric,
- in each case, except to the extent that the Claim or breach is caused or contributed to by Customer, End Users or any Customer Materials or Third Party Materials.
8.4 Customer indemnity
Customer indemnifies Nitric and its Affiliates against and must pay on demand all Losses suffered or incurred by any of them arising out of or in connection with:
- any Claim that any Processing of the Customer Material infringes the Intellectual Property Rights or rights in information of a third party;
- any breach of clause 1.2, 5.2, 6 or 7 by Customer,
in each case, except to the extent that the Claim or breach is caused or contributed to by Nitric
8.5 Conduct of Claims
The indemnification obligation of a party (indemnifying party) under clause 8.3 or 8.4 in respect of any third party Claim is subject to the other party:
- promptly notifying the indemnifying party of the third party Claim;
- permitting the indemnifying party to control the defence of the third party Claim; and
- providing (at the indemnifying party's cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party Claim.
8.6 Sole and exclusive remedy
Without prejudice to the termination rights of each party:
- clause 4.4 and 8.3 sets out Customer's sole and exclusive remedy in respect of the matters indemnified by Nitric; and
- clause 8.4 sets out Nitric's sole and exclusive remedy in respect of the matters indemnified by Customer.
9.1 EXCLUSION OF INDIRECT LOSS
TO THE EXTENT PERMITTED BY LAW, EACH PARTY EXCLUDES ANY AND ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER BASIS IN LAW OR EQUITY FOR ANY INDIRECT LOSS. SOME US JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, SO THIS EXCLUSION OR LIMITATION MAY NOT APPLY IF CUSTOMER IS LOCATED IN ANY SUCH JURISDICTION.
9.2 LIMITATION OF LIABILITY
THE LIABILITY OF A PARTY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER BASIS IN LAW OR EQUITY, IN ANY AGREEMENT YEAR IS LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT IN THAT AGREEMENT YEAR, SUBJECT TO CLAUSES 2.4 AND 9.3.
9.3 UNLIMITED LIABILITY
THE LIMITATION OF LIABILITY IN CLAUSE 9.2 DOES NOT APPLY TO THE LIABILITY OF A PARTY:
- UNDER ANY INDEMNITY IN CLAUSE 8.4;
- TO PAY FEES THAT ARE DUE AND PAYABLE; OR
- FOR ANY MATTER IN RESPECT OF WHICH LIABILITY MAY NOT BE LIMITED AT LAW.
9.4 INJUNCTIVE RELIEF
CUSTOMER ACKNOWLEDGES THAT DAMAGES ARE NOT A SUFFICIENT REMEDY FOR ANY BREACH OF CLAUSE 1.1, 1.2, 2.1, 5, 6 OR 7 OF THE AGREEMENT AND THAT NITRIC IS ENTITLED TO SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF (AS APPROPRIATE) AS A REMEDY FOR ANY BREACH OR ANTICIPATED BREACH OF THOSE CLAUSES (IN ADDITION TO ANY OTHER REMEDIES).
10 Term, suspension and termination
10.1 Subscription Term
The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 10.
Nitric may suspend the rights granted pursuant to clause 1.1:
- during any period in which Customer is in breach of the Agreement; or
- to prevent or mitigate actual or suspected illegal activity, damage to Nitric's systems, or threat to the integrity of the Service.
10.3 Termination for cause
A party may terminate the Agreement with immediate effect on written notice if the other party:
- commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of clauses 1.1, 1.2, 2.1, 3.2, 5, or 7 is a material breach for the purposes of this clause;
- becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.
10.4 Consequences of termination or expiry
On termination of the Agreement:
- all rights to the Service granted under the Agreement cease immediately and Customer must immediately cease using the Service;
- Nitric has no further obligation to retain the Customer Material, provided that Nitric permits Customer to access the Service for the sole purpose of downloading the Customer Material for a period of 30 days following expiry or termination; and
- Customer must immediately pay Nitric all Fees due and payable as at the date of termination or expiry and, if Nitric terminates pursuant to clause 10.3, all Fees payable for the remainder of the Subscription Term.
11.1 Entire agreement
This Customer Agreement, the Order and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.
Nitric may amend this Customer Agreement at any time by posting the amended version of this Customer Agreement at https://deploy.nitric.io/agreement. The amended version of this Customer Agreement will take effect upon the earlier of the date that is:
- 30 days following of the amendment to this Customer Agreement; and
- the next renewal date of Customer's subscription.
11.3 Force Majeure Events
Nitric is not liable for any delay or failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.
If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.
Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of Nitric. Customer consents to Nitric:
- assigning its rights under the Agreement to its Affiliates;
- assigning or novating the Agreement in connection with any solvent amalgamation, reconstruction, restructure, sale of shares, assets, raise or financing of Nitric and/or its Affiliates; and
- subcontracting its obligations under the Agreement to third parties, including Affiliates.
A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
11.7 Third party rights
No person other than Nitric and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.
11.8 Relationship of the parties
The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.
11.9 Governing Law
The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.
12 DefinitionsIn this Customer Agreement, these terms have the following meanings:
Affiliate means an entity that Controls, is Controlled by, or is under common Control with that party.
Agreement means the agreement consisting of this Customer Agreement, the Order and any SOW.
Agreement Year means a period of 12 months from the date of the Order forming part of the Agreement or an anniversary of that date.
Claim means any demand, claim, action or proceeding, however arising and whether present, unascertained, immediate, future or contingent.
Cloud Environment means an Amazon Web Services, Microsoft Azure, Google Cloud or other cloud environment listed at: https://nitric.io/docs/reference/providers which is:
- owned or controlled by Customer;
- properly configured and connected to the Customer Software Repository and Service; and
- approved by Nitric for use with the Service.
Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:
- including the terms of the Agreement and, in the case of Nitric, all source code to, Nitric Data comprised in, and pricing for, the Service; but
- excluding any such information that is in the public domain (other than as a result of a breach of confidence).
Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:
- direct or indirect ownership of more than 50% of the voting rights of such person; or
- the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.
Customer Material means the Customer Software, secret values, configuration values and Cloud Environment variables which is uploaded to or Processed through the Service. To avoid any doubt, no part of the Service is Customer Material.
Customer Software means source code developed using the Nitric Development Framework which is owned or controlled by Customer and uploaded to or Processed through the Service.
Customer Software Repository means a GitHub repository which is:
- owned or controlled by Customer;
- properly configured and connected to the Service; and
- approved by Nitric for use with the Service.
End User means any employee, contractor or agent of Customer who accesses or uses the Service through Customer's subscription.
Fees means the fees, costs and expenses for the supply of the Service, Support Services and any Professional Services specified in the Order (including applicable fees of Nitric's third party suppliers).
Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.
Indirect Loss means:
- loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and
- any Loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.
Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.
IP Claim means any Claim that use of the Service by Customer in accordance with the Agreement infringes any copyright or patent owned by a third party in Australia or the United States of America.
Loss means loss, damage, liability, cost (including all legal and other professional costs on a full indemnity basis), charge, expense, outgoing, fine or payment of any nature or kind.
Nitric Development Framework means the 'Nitric' software development framework: http://github.com/nitrictech/nitric.
Order means an order form setting out the details of Customer's purchased subscription to the Service as specified in any:
- Nitric Order Form in respect of the Service executed by the parties; or
- online order form completed by Customer and logged in Nitric customer relationship management system,
Personal Data means information about an identified individual or an individual who is reasonably identifiable, including 'personal information' and 'personally identifiable information' as defined in applicable Privacy Law.
Privacy Law means any applicable law governing the Processing of Personal Data in Australia or the United States of America, including (to the extent applicable) the Privacy Act 1988 (Cth) and California Consumer Privacy Act (2018).
Process means to collect, store, access, use, copy, adapt, modify, reformat, transform, compile, disclose, deploy to a Cloud Environment or perform any other set of operations on.
Professional Services means any support, implementation, training, data migration or other service not forming part of the Service or Support Services.
Service means the 'Nitric Deploy' cloud service which enables the auto-provisioning of infrastructure, and deployment of cloud-native software applications, within approved cloud environments as described in the Order, including any Updates.
SOW means a statement of work setting out the details of the Professional Services to be provided by Nitric, including the agreed scope and applicable Fees.
Subscription Term means:
Support Services means the following support services for all paid subscriptions to the Service:
- online and chat system support for Service defects that require access or changes to the source code for the Service as described at https://nitric.io/docs/support; and
- making Updates available from time to time.
Third Party Material means content, data, products, software, functionality or services owned or controlled by third parties, including the Cloud Environments, Customer Software Repositories which integrate or interoperate with the Service.
Third Party Provider means any third party supplier to Nitric or its Affiliates of hosting, software or services used to support or supply the Service.
Updates means any new version, release, update, patch, fix, configuration or other modification of the Service made available by Nitric to its customers generally during the Subscription Term.