Master Service Agreement

“Documentation” means any user guide, help information and other documentation and information regarding the Services that is delivered by Nira to Customer in electronic or other form, if any, including any updates, modifications and upgrades provided by Nira from time to time.

“Service Level Agreement” means the Service Level Agreement attached hereto as Exhibit A.

“Services” means collectively, Nira’s proprietary, Software-as-a-Service (SaaS) solution for discovering, monitoring and managing access to Customer information (e.g. documents) and software application usage metadata, Documentation, and all software applications, databases, modules, source code, development tools, libraries and utilities that Nira uses, creates, and/or maintains in order to provide the Services to Customer. The Services includes any change, improvement, extension or other new version thereof that is developed or otherwise made available to Customer.

“Subscription Term” means the length of the Subscription set forth on the applicable Order Form.

“Support” means the support services set forth on Exhibit B.

“Users” means individuals or entities that are authorized by Customer to use the Services under Customer’s account and on Customer’s behalf.

1. Access and Use. Subject to Customer’s compliance with the terms and conditions of this Agreement, Nira hereby grants Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to access and use the Services for its internal business use during the Subscription Term for the quantity specified in the Order Form (the “Subscription”).
2. Restrictions. Customer will not (and will not to allow any third party to): (i) access the Services for any benchmarking, penetration testing or competitive purposes without Nira’s express written consent; (ii) encumber, rent, market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Services available to any third party, except to a third party that manages Customer’s computing environment; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Services, or any of their components; (iv) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (v) use the Services other than in accordance with this Agreement and in compliance with applicable laws, regulations and rights.
3. Limitations.  Nira will not be responsible or liable for any failure in the Services resulting from or attributable to: (i) failure to use the Services in accordance with Nira’s requirements, including without limitation with instructions included in any Documentation; (ii) any Customer Data; (c) failures in any telecommunications, network or other service or equipment that are not within Nira’s reasonable control; (d) Customer’s products, services, negligence, acts or omissions; (e) scheduled maintenance; (f) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by Nira’s negligence or willful misconduct; (g) Customer’s failure to obtain and maintain agreements with any third parties as required to use the Services through third-party API integrations; or (h) any downtime, outages, inaccessibility or other failures caused by or related to any third-party API integrations. Customer is responsible for the use of the Services by any User.
4. Modifications.  Nira reserves the right to modify the Services (in whole or in part) at any time, provided that Nira will not materially reduce the functionality of the Services without providing notice to Customer at least 24 hours in advance of such reduction.

1. General. Nira will use commercially reasonable efforts to provide the Services in conformance with this Agreement, the Order Form(s), and applicable Documentation. The Services will be hosted by Nira on its cloud-based infrastructure.
2. Availability. Nira will use commercially reasonable efforts to ensure that the Services are available in accordance with the terms of the Service Level Agreement, which sets forth Customer’s sole remedies for any interruptions in the availability of the Services.
3. Support. If Customer experiences any errors, bugs, or other issues in its use of the Services, then Nira will provide Support in accordance with Exhibit B.

1. Term. The term of this Agreement will commence on the Effective Date and will continue for so long as there are active Subscriptions, unless otherwise terminated as provided in Section 4.2 (the “Term”).
2. Termination for Cause. Either Party may terminate this Agreement or any active Subscription for cause (i) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Effect of Termination. If Customer terminates this Agreement or any active Subscription in accordance with Section 4.2, then Nira will provide a pro rata refund of any prepaid fees allocable to the remaining Term.
4. Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 6; 7; 8; 10; 11; and 13.

1. Fees. Customer will pay the fees for the Subscription set forth on the applicable Order Form. Following execution of the Order Form, Nira will submit an invoice to Customer for the Subscription, and payment will be due within 30 days from receipt of an undisputed invoice unless otherwise set forth on the Order Form (the “Due Date”).
2. Overdue Charges. If any undisputed, invoiced amount is not received by Nira by the Due Date, then (i) those charges may accrue late interest at the rate of 3.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (ii) Nira may condition future Subscriptions on receipt of payment for previous Subscriptions and/or payment terms shorter than those specified on the previous Order Form.
3. Taxes. Customer shall be responsible for all (i) taxes associated with use of the Services, other than taxes based on Nira’s net income and (ii) Nira’s costs of collection in the event of Customer’s delinquent payment. All fees paid are non-refundable and not subject to set-off.

1. Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Nira’s Confidential Information includes any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information that: (i) is previously rightfully known to the Receiving Party without restriction on disclosure; (ii) is or becomes known to the general public, through no act or omission on the part of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation; or (iv) is independently developed by the Receiving Party.
2. Confidentiality Obligations.  Each Party will use the Confidential Information of the other Party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
3. Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order, unless such notice is prohibited by law. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

1. Customer Data. In connection with its use of the Services, Customer will transfer a limited amount of information, including personal information, to Nira for processing. This information will primarily consist of document and file metadata (e.g. document names, owners, dates modified, document activity logs), and app usage metadata (e.g. authorizations, de-authorizations) (collectively, “Customer Data”). Nira uses Customer Data exclusively for the purpose of providing the Services to Customer, and Customer grants Nira a limited license during the Subscription Term to use Customer Data to provide the Services.
2. Security. Nira maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data.
3. No Access. Except for the Customer Data or as otherwise permitted under this Agreement, Nira does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, Customer’s network, or users of Customer’s products or services.
4. Data Processing Addendum. If Customer believes Customer Data may include the personal information of natural persons that is subject to (i) the General Data Protection Regulation (Regulation (EU) 2016/679), (ii) the Swiss Federal Act on Data Protection, (iii) the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018; (iv) the UK Data Protection Act 2018; or (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003, Customer may execute a Data Processing Addendum (“DPA”) found at nira.com/dpa by submitting a request by email to sales@nira.com. Promptly following Nira’s receipt of Customer’s request, Nira will send Customer a DPA ready for execution.
5. CCPA. Except with respect to Customer Data, the parties acknowledge and agree that Nira is a service provider for the purposes of the CCPA (to the extent it applies) and is receiving personal information from Customer in order to provide the Services pursuant to this Agreement, which constitutes a business purpose.  Nira shall not sell any such personal information. Nira shall not retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of performing the Services for Customer pursuant to this Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA.  The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Nira certifies that it understands the restrictions of this Section 7.5.

1. Nira Property. Nira owns and retains all right, title, and interest in and to the Services, including any de-identified data Nira derives from Customer Data by means of normal functioning of the Services. Additionally, Nira owns any feedback or suggestions provided by Customer to Nira with respect to the Services. Except for the limited license granted to Customer in Section 2.1, Nira does not by means of this Agreement or otherwise transfer any rights in the Services to Customer, and Customer will take no action inconsistent with the Nira’s intellectual property rights in the Services.
2. Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means of this Agreement or otherwise transfer any rights in the Customer Data to Nira, except for the limited license set forth in Section 7.1.
3. Third Party Content.  In order to make full use of the Services, Customer acknowledges and agrees that it may need to provide Nira with certain data and information owned or controlled by third parties through APIs (“Third Party Content”).  Customer shall be solely responsible for ensuring it has all necessary rights to such Third Party Content in order to make such Third Party Content available to Nira for use in connection with Nira’s provision of Services to Customer.  Customer shall defend, indemnify and hold harmless Nira for any claims, losses and expenses incurred by Nira and arising from any third party claim relating to Nira’s use of the Third Party Content to provide the Services to Customer.  Customer shall provide reasonable cooperation and assistance to Nira to enable Nira to adequately integrate such Third Party Content into the Services.  Nira shall not be liable for any failure to provide the Services to Customer arising out of Customer’s failure to provide Nira sufficient access to Third Party Content.

1. Mutual Representations and Warranties. Each party represents and warrants that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
2. Customer.  Customer represents and warrants to Nira that: (i) Customer owns or otherwise has the right to use and provide the Customer Data and Third Party Content as contemplated herein, including any personally identifiable information included in the Customer Data and Third Party Content; and (ii) Customer will use the Services only in compliance with applicable laws and regulations.
3. Disclaimer. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND.  NIRA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.  TO THE FULLEST EXTENT PERMITTED BY LAW, NIRA HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE NIRA SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

1. Customer.  Customer agrees to defend, indemnify and hold harmless Nira and its officers, directors, employees, agents, shareholders, affiliates, successors and permitted assigns against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement or by a court, arising from (i) Customer’s gross negligence or willful misconduct; (ii) Customer’s breach of any representation, warranty, covenant or other agreement made herein; (iii) Nira’s reliance on any written or oral instructions provided by or on behalf of Customer to Nira; and (iv) any third-party claim or allegation relating to or arising out of any aspect of the Customer Data, Third Party Content or third-party API integrations (including claims from Users regarding Nira’s use of Customer Data provided by or on behalf of Customer in connection with the Services).
2. Infringement.  Except as provided below, Nira agrees to: (i) defend Customer against any claim by a third party that the Services infringe a valid U.S. patent (issued as of the last updated date above), or any copyright or trade secret, of such third party; and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any portion of the Services becomes or, in Nira’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Nira may, at its option: (a) obtain for Customer the right to continue using the Services; or (b) replace or modify the Services so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available to Nira, then it may (c) terminate this Agreement upon written notice to Customer and refund to Customer any fees (if any) that were pre-paid for the then current Subscription Term, pro-rated for the remainder thereof. The foregoing states the entire liability of Nira, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services any part thereof or its use or operation.
3. Exclusions.  Nira shall have no liability or obligation hereunder with respect to any claim based upon: (i) use of the Services in an application or environment or on a platform or with devices for which it was not designed or contemplated; (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Nira; (iii) any portion of the Services that implements Customer’s requirements; (iv) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement; or (v) any intellectual property right in which Customer or any of its affiliates has an interest.
4. Procedures.  Any claim for indemnification hereunder requires that: (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith; and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.  The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).  The indemnifying party shall not be liable for any settlement made without its prior written consent.

EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY), INDEMNIFICATION OBLIGATIONS OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL NIRA OR ITS SUPPLIERS, OFFICERS, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (I)  LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (II) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL; OR (III) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO NIRA HEREUNDER DURING THE PREVIOUS 6 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

This Agreement (including any Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).  Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. Nira reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Services following such changes.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is governed by the laws of the State of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Mateo County, CA, and both parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. Any notice provided by one Party to the other under this Agreement will be in writing and sent by electronic mail to the email address listed in the Order Form. Neither Party may assign this Agreement without the prior, written consent of the other Party, except that either Party may assign this Agreement without such consent to an affiliate, or in connection with an acquisition of the assigning Party or a sale of all or substantially all of its assets.  The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries to this Agreement.

“Downtime” means if Customer is unable to access the Services and/or API as a result of failure(s) in the Services, as confirmed by Nira.

“Emergency Downtime” means circumstances where Nira discovers a critical issue in the Services that is reasonably likely to have a material impact on the Services. During Emergency Downtime, Nira will render the Services unavailable to correct the issue, and then promptly restore the availability of the Services.

“Maintenance Downtime” means routine maintenance that occurs outside of normal working hours (Pacific Time Zone) and continues for no more than four hours in any one instance, so long as Nira provides Customer at least 24 hours prior written notice (including by email) to Customer’s main technical contact on file with Nira.

“Monthly Uptime Percentage” means the total number of minutes in a calendar month, minus the number of minutes of Downtime experienced in a calendar month, divided by the total number of minutes in a calendar month.

“Service Credit” means the number of days by which Nira will extend the length of the Subscription Term, at no charge to Customer, according to the table in Section 2, in the event that Customer otherwise fulfills the criteria for receiving such Service Credit in accordance with the terms of this Service Level Agreement.

During the Subscription Term, the Services will be operational and available to Customer at least 99.0% of the time in any calendar month (the “Service Level Warranty”).  If the Monthly Uptime Percentage does not meet the Service Level Warranty in any calendar month, and if Customer meets its obligations under this Agreement, then Customer will be eligible to receive Service Credit as follows:

In order to receive Service Credit for a calendar month, Customer must notify Nira in writing (including by email) within 30 days from the time Customer becomes eligible to receive a Service Credit under the terms of this Agreement.  A Customer’s right to receive Service Credit will be forfeited if Customer fails to comply with this requirement.

The aggregate maximum amount of Service Credit to be issued by Nira to Customer for all Downtime that occurs in a single calendar month is not to exceed 5 days.  Service Credit may not be converted into or exchanged for monetary amounts.

The Service Level Warranty does not apply to Services unavailability due to Maintenance Downtime, Emergency Downtime, or any performance issues that (i) are caused by riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, earthquakes, or any other causes that are beyond Nira’s reasonable control so long as Nira uses commercially reasonable efforts to mitigate the effects of such force majeure, (ii) resulted from Customer’s equipment or third party equipment or service (e.g. Customer’s internet connection or inability to access any third-party APIs), or (iii) resulted from Customer’s violation of this Agreement.

“Error” means a failure of the Service to operate as represented by Nira, resulting in the inability to use, or material restriction in the use of, the Services.

“Escalation” means the process by which Nira will work continuously, and across multiple levels of its organization, to resolve an Error if Nira is not able to provide an estimated time (in hours or days) for fixing the Error within the specified Resolution Estimate Time set forth in Section 4.

“Start Time” means the time at which Nira first becomes aware of an Error during Nira’s regular business hours, following the initiation of a Support case by Customer in accordance with Section 3.

During a Subscription Term, Nira will provide the Support described in these Support Terms 8 hours a day, 5 days a week during the hours of 9am – 5pm, Pacific Time.

The Customer Support Contacts may initiate a Support case by clicking on the Help button in the application and filling out the form, emailing support@nira.com or calling (650) 241-4531.

Nira will establish the Priority Level of an Error reported by Customer and the corresponding Support case in its sole discretion. Nira will use its best efforts to adhere to the Response Times and Resolution Estimate Times set forth below. If an Error is not addressed with an estimated time to fix the Error within the Resolution Estimate Time set forth below, Nira will commence an Escalation.

1. Conditions. Nira’s obligation to provide Support is conditioned upon the following: (i) Customer takes appropriate actions to solve the Error after consulting with Nira; (ii) Customer provides Nira with sufficient information and resources to debug and resolve the Error, as well as any and all assistance reasonably requested by Nira; and (iii) Customer procures, installs, and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to access and operate the Services.
2. Exclusions. Nira is not obligated to provide Support in the following situations: (i) the problem is caused by Customer’s gross negligence, hardware malfunction, or other causes beyond the reasonable control of Nira; or (ii) the problem is with third party software or third party API not licensed through Nira.
3. Termination. Nira reserves the right to conclude its efforts of a particular Support case when, in its reasonable discretion, Nira determines that it has provided a satisfactory resolution or workaround to the Error.