nTop Core terms of use

PLEASE NOTE: The below applies to the use of nTop’s nTop Core. However, a separate agreement may apply instead, the terms of which may differ, and will govern and control in the event of any ambiguity or inconsistency with those set forth below. Please contact nTop with any questions.

These nTop Core Terms of Use together with any materials, communications and/or documents they expressly incorporate by reference ("nTop Core Terms of Use", “nTop Core TOU”, or “TOU”) govern the use of nTop Core (and the Documentation) made available by nTop under the nTop Core-related agreement(s) entered into by both nTop and the organization (or individual) identified therein as “Collaborator”, which is incorporated herein by reference (the "Agreement"). Any capitalized terms used in these TOU not defined herein will have the meaning specified in the Agreement.

1. General Provisions.

1.1 The provisions of the Agreement govern the Parties’ obligations and activities with respect to nTop Core, while these TOU govern Collaborator’s use of nTop Core and the Documentation (and apply to each individual user Collaborator gives access to, together with all files, content, instructions, code, data, information, and services provided or made available by nTop through or with nTop Core, including any designs, concepts, works and Derivative Works derived directly or indirectly from nTop Core (collectively, “nTop Core Materials”). In the event of any conflict, inconsistency or ambiguity between any provision of these TOU and the Agreement, the provision set forth in the Agreement will supersede, prevail and control.

1.2 Pursuant to and to the extent provided in the Agreement, nTop Core and the Documentation are made available to Collaborator for the sole purpose of facilitating its internal design, configuration and development of Derivative Works and related tools and services that are fully operational and interoperable with the nTop Software. In achieving the foregoing, Collaborator may solely use the nTop provided copy of nTop Core, along with the Documentation and any other materials made available by nTop to Collaborator. Notwithstanding the terms hereunder, the code that underlies nTop Core and the nTop Offerings is closed sourced and may not be accessed, modified or reverse engineered under any circumstance (including any associated original file, data or material) whether directly or indirectly. Collaborator may not copy, modify, sublicense, distribute or link with nTop Core itself except as expressly provided in these TOU and the Documentation.

2. Term & Termination.

2.1 Collaborator may use/access the nTop Core Materials (and any other related materials furnished by nTop) solely during the Term of the Agreement.

2.2 Unless earlier terminated pursuant to the terms hereunder, Collaborator’s license and provision of access to the nTop Core Materials will immediately and automatically terminate as of the earlier date of: (a) the expiration or earlier termination of the Agreement; or (b) the termination of Collaborator’s authorization to use the nTop Core Materials, under either applicable or written notice from nTop.

2.3 In the event of expiration or any termination of the Agreement, Collaborator will:

(a) immediately cease all use of nTop Core and the Documentation;

(b) promptly permanently destroy all copies of nTop Core and the Documentation then in its possession (even if stored on third party servers), together with any documentation and materials made available by nTop or bearing nTop’s trademark, then in its possession (other than a reasonable number of copies retained in its archival records, consistent with Collaborator’s ordinary retention policies);

(c) with respect to any Derivative Works, Collaborator may retain such Derivative Work(s), provided that Collaborator (i) does not under any circumstance use, exploit or make available any Derivative Work (whether in whole or in part) for purposes of communicating or operating with the nTop Offerings, or developing a product or service directly or indirectly competitive with the nTop Offerings or for any purpose to nTop’s (or its affiliates’) commercial or reputational detriment or disadvantage, and (ii) attests in writing and executes all documents (signed by an authorized representative) upon nTop’s reasonable request from time to time certifying Collaborator’s compliance with the termination procedures specified hereunder; and

(d) additionally ensure each Recipient promptly complies with the termination procedures specified hereunder, it being acknowledged and agreed that Collaborator shall remain responsible and liable for any failure to comply with any of the foregoing provisions by any of its Recipients.

2.4 Except for the terms hereunder, nothing grants Collaborator (or any other party) permission to copy, distribute or create derivative works based upon nTop Core or the Documentation without nTop’s express prior written consent. Collaborator will be sole responsibility for fulfilling any additional restriction or obligation (whether legal, contractual or otherwise) imposed on it in connection with fulfilling its duties and obligations specified hereunder. Similarly, to the extent applicable by the terms hereunder, Collaborator will be solely responsible for obtaining any necessary third party or governmental authorization(s) or licenses in order for Collaborator to distribute Derivative Work, or grant its own warranty thereto of any kind. Unless otherwise expressly stated, nTop Core and all other nTop services and products are, and will remain, exclusively owned and operated by nTop and its Representatives (as applicable).

2.5 Derivative Works. Subject to the terms of the Agreement, each Derivative Work will be subject to these TOU and must be accompanied by the Flow Down Provisions provided below upon any dissemination, release or distribution to any third party, regardless of the disposition of a Derivative Work’s development or the Parties’ relationship under the Agreement. These TOU will continue to apply with full effect regardless of whether nTop Core or any Derivative Work is combined or integrated with any other work or creation (even if each is combined separately, in isolation). For the avoidance of doubt, even if Collaborator creates, commercializes and/or productizes a subsequent creation or work derived from a Derivative Work, these TOU will continue to apply to those components or parts therein or thereof that originate from nTop Core or the Documentation, it being agreed that even if such work is subject to additional terms and conditions, these TOU will supersede and prevail in the event of any conflict or ambiguity for purposes of those components or part(s) therein derived from nTop Core or the Documentation.

2.6 Modifications. Collaborator may make modifications to an nTop furnished copy of nTop Core or a Derivative Work in accordance with these TOU and the Agreement. Although Collaborator may not access the underlying source code of nTop Core, Collaborator may still, however, combine source code which Collaborator lawfully and independently created or obtained, together with nTop Core, in Collaborator’s development of a Derivative Work.

3. EULA & Flow Down Provisions.

3.1 The provisions of the Agreement will govern and control any Collaborator distribution, maintenance, commercialization, marketing, sublicensing and/or related activity (if any) in connection with each Derivative Work. Notwithstanding the foregoing, if the provisions of the Agreement permit Collaborator to make available or distribute a Derivative Work (whether in whole or in part) to a third party entity or individual (each, a “Recipient”), Collaborator will cause the Recipient (including the Recipient’s Affiliates, End Users, Representatives and customers otherwise) to enter into a written agreement governing its use of the Derivative Work prior to the Recipient’s first installation or use thereof (an “EULA”) which may not be inconsistent with, or contrary to, the terms hereunder and must include binding provisions of the following effect (“Flow Down Provisions”):

(a) the grant of a nonexclusive license for a defined duration with a prohibition against transferring or further sublicensing the Derivative Work to any third party, except in connection with the sale (stock or assets) of Recipient’s entire business unit which uses the Derivative Work, it being understood that such third party first agrees to the terms of the then-existing EULA;

(b) authorization for use of the Derivative Works in a specified geographic location or territory (if any) to process only data associated with Recipient’s own business, including providing professional services for Recipient’s customers (to the extent applicable);

(c) acknowledgment by the Recipient of nTop’s proprietary rights and trade secrets contained in portions of the Derivative Works;

(d) Recipient obligation to retain all proprietary notices and legends contained on or affixed to the Derivative Works and on all copies thereof, including any related materials or documentation;

(e) acknowledgment by the Recipient that neither nTop, nor nTop’s licensors, suppliers and/or representatives, give any representation and/or warranty of any kind whatsoever in connection with the Derivative Work; provided however, Collaborator may accordingly give its own representation and/or warranty to the extent not consistent with the terms of these TOU or the Agreement;

(f) prohibition against reverse engineering the Derivative Work (except as permitted by applicable Law without the possibility of waiver), creating any Derivative Works, workarounds, compilations or collective works thereof (whether directly or indirectly);

(g) copying of the Derivative Work must be limited to ordinary installation needs and a reasonable number of backup copies;

(h) Recipient’s obligation to comply with U.S. and non-U.S. export regulations, including Recipient’s obligation to not export or re-export the Derivative Work or any other software, services or technology (including any components or derivatives thereof) or permit the shipment of the same without, if necessary under applicable Law, obtaining at Recipient’s sole expense any required prior authorization from the applicable governmental authority (or as may be required by Law from time to time);

(i) in the event a Derivative Work is provided to a Recipient for evaluation and/or trial use only (excluding any Collaborator demonstration not involving Recipient’s actual use of any Derivative Work), Collaborator will be obligated to ensure that the applicable EULA (or evaluation agreement otherwise) provides that such Derivative Works are permanently destroyed, disabled or returned to Collaborator (or its affiliates, as applicable) by the Recipient, upon expiration of the evaluation period. The term of such evaluation period may not exceed ninety (90) days. It will additionally be the responsibility of Collaborator to assure that potential Recipients are advised in writing of any disabling devices that may be included within the Derivative Works;

(j) all provisions that may be required by the applicable Laws of the jurisdictions in which the Recipient is located or otherwise subject to;

(k) for U.S. Government Recipients only, this Software is a commercial product that has been developed exclusively at private expense. If the Software is acquired directly or indirectly by or on behalf of a United States Governmental entity, then the Software and Documentation are deemed "commercial computer software" under the applicable federal acquisition regulations (“FAR”) and are provided with the commercial license rights and restrictions described elsewhere herein. If the Software is acquired under a United States government contract, all necessary and applicable restricted rights legends on or accompanying the Software must be included to protect the Software Licensor’s proprietary rights under the FAR or other similar regulations of other federal agencies. Such legends must always be included whenever the Software is, or is deemed to be, a deliverable under a government contract. The Software and Documentation are licensed to United States Government end users with only those rights granted to all other end users, according to the express provisions of this Agreement; and

(l) the foregoing provisions (c ) and (h) must survive indefinitely, regardless of any expiration or termination of the applicable EULA.

3.2 To the extent permitted by applicable Law and these TOU and the Agreement, nTop and Collaborator acknowledge that an End User License Agreement may be presented to a Recipient in an electronic, click-wrap or shrink-wrap format and will be sufficient to satisfy the requirements of this TOU Section 3. Such electronic, click-wrap or shrink-wrap End User License Agreement must contain a clear and predominant statement that the Recipient agrees to be bound by the terms of the EULA prior to its first installation or use of the Derivative Work.

3.3 Subject to the terms of the Agreement, Collaborator will use no less than reasonable efforts to ensure each Recipient’s compliance with the terms of the EULA (including any third party entity or individual that Collaborator know will use a Derivative Work) and enforce diligently against the Recipient the EULA provisions with respect to any Derivative Work. nTop reserves the right to require upon advance written notice that Collaborator promptly deliver to nTop a complete copy of all documents related to each license granted by Collaborator.

3.4 Collaborator will, at its own expense, obtain and arrange for all governmental approvals, consents, licenses, authorizations, declarations, filings, and registrations as may be necessary or advisable for their performance of all the terms and conditions of these TOU and the Agreement.

4. Miscellaneous.

4.1 Collaborator Offerings Ownership. Except as otherwise set forth in these TOU and the Agreement, nothing in these terms hereunder will prevent Collaborator from exclusively claiming ownership over Collaborator’s own designs, works, and/or Collaborator Offerings(s) that Collaborator otherwise independently creates/created and/or owns wholly independent from nTop Core, the nTop Software and/or the Documentation.

4.2 Legal Compliance. Collaborator hereby represents, warrants and covenants that it will comply with all applicable Law and industry standards and best practices in accessing nTop Core and developing and using each Derivative Work (regardless of jurisdiction or country). With respect to the use of a Derivative Work in combination or together with other software or works which include license terms or restrictions that conflict with those set forth hereunder, Collaborator will accordingly not be permitted to use nTop Core or a Derivative Work, it being understood that Collaborator is solely responsible for ensuring any such combination is permissible. Subject to the terms hereunder, and to the extent consistent with these TOU, Collaborator may elect to include Collaborator’s own additional warranty, terms and/or restrictions applicable to its Derivative Work not otherwise provided or governed by these TOU.

4.3 TOU Modification. nTop may modify or supplement these TOU from time to time upon advance written notice to Collaborator; provided however, that any such modification or supplement shall not apply retroactively.

4.4 Suspected Breach or Infringement. Collaborator will promptly notify nTop in writing of any actual, suspected, or threatened infringement of any nTop owned copyright or other proprietary rights related to the nTop Offerings of which Collaborator become aware. In such event, Collaborator agrees to promptly provide nTop with all reasonable assistance and detail that it may correspondingly reasonably request. nTop will be entitled to retain any monetary recovery resulting from any subsequent legal action or proceeding (including any settlement thereof) for its own account.

4.5 Additional Legal Restrictions. For purposes of the activities described hereunder, if under applicable Law (including any order of a court or tribunal of competent jurisdiction) causes additional restrictions or conditions to be imposed on Collaborator that conflict with these TOU, they do not excuse Collaborator from its duties and obligations specified herein. If and to the extent permitted by the provisions of the Agreement, where Collaborator cannot distribute or provide a Derivative Work to a Recipient in a manner that simultaneously satisfies Collaborator’s obligations set forth hereunder, then Collaborator must not distribute or disseminate any Derivative Work accordingly. Access to, and use of, nTop Core is not available to the general public and is intended for professional users trained and skilled in the industry. Collaborator may not distribute, make available or provide access to nTop Core (whether in whole or in part) to any third party or otherwise to any non-currently individual (e.g., employee), contractor or entity associated with Collaborator.