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Last updated: July 1, 2026
These Subscription Services Terms (these “Terms”), together with each Order Form that references these Terms, form the agreement (collectively, the “Agreement”) between Subscriber and nOps. By accepting these Terms, by executing an Order Form that references these Terms or otherwise by accessing or using the Services, Subscriber agrees to be bound by the Agreement. If Subscriber is entering into the Agreement on behalf of a company or other legal entity, Subscriber represents that it has the authority to bind such entity and its Affiliates to the Agreement. If Subscriber does not have such authority, or if Subscriber does not agree with the Agreement, Subscriber may not use the Services.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means the ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest of such entity.
1.2. “Commitment(s)” means any commitment-based discount instrument that nOps purchases or manages on behalf of Subscriber’s behalf under this Agreement in connection with the Services.
1.3. “Confidential Information” means all non-public and proprietary information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally, in writing, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including technical data, trade secrets, know-how, research, product plans, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, finances, business plans, customer lists, pricing information, and other business information.
1.4. “Documentation” means all user manuals, technical manuals, and training materials provided by nOps to Subscriber relating to the Services, as may be updated by nOps from time to time.
1.5. “Effective Date” means (a) with respect to an Order Form, the effective date set forth in such Order Form; and (b) with respect to the Agreement generally, the date Subscriber first accepts these Terms, executes an Order Form, or accesses the Services, whichever is earlier.
1.6. “Intellectual Property Rights” means any and all intellectual property and industrial rights of any kind or nature, whether arising under the laws of the United States or any other jurisdiction, whether registered or unregistered, including: (i) patents and patent applications (including continuations, divisionals, continuations-in-part, reissues, reexaminations, and extensions thereof); (ii) trademarks, service marks, trade names, trade dress, logos, and all goodwill associated therewith; (iii) copyrights and works of authorship (including software and databases); (iv) trade secrets and other confidential or proprietary information and know-how; (v) mask works and industrial design rights; and (vi) all other intellectual property rights, including all registrations, applications, renewals, extensions, restorations, and equivalents of any of the foregoing throughout the world.
1.7. “Managed Spend” means Subscriber’s total cloud compute, database and artificial intelligence spend that is managed by nOps pursuant to an Order Form.
1.8. “nOps” means NOPS, Inc., a Delaware corporation, or the entity signing the Order Form, as applicable.
1.9. “Order Form” means an ordering document that references these Terms and specifies the Services to be provided, the Managed Spend, applicable fees, the Order Term, and any other commercial terms.
1.10. “Order Term” means, with respect to each Order Form, the term set forth in such Order Form, including any renewal periods.
1.11. “Service Materials” means any data, dashboards, reports, analytics, Documentation, or other materials produced by nOps or nOps’ automated solutions in the course of providing the Services to Subscriber.
1.12. “Services” means nOps’ multi-cloud spend management and optimization platform and the automated commitment management subscription services provided therethrough.
1.13. “Subscriber” means the entity identified in the Order Form or, if none, the entity accepting these Terms.
1.14. “Subscriber Data” means all data, information, and content submitted, uploaded, or otherwise made available by or on behalf of Subscriber to nOps through or in connection with the Services.
1.15. “Subscriber’s Cloud Account(s)” means Subscriber’s Amazon Web Services, Microsoft Azure, Google Cloud Platform, or other cloud service provider accounts that are connected to the Services.
2.1. Provision of Services. The specific scope, pricing, and commercial terms applicable to the Services are set forth in one or more Order Forms. Each Order Form incorporates and is subject to these Terms. If there is any conflict between the terms of an Order Form and these Terms, these Terms control unless the Order Form specifically references the conflicting provision to be overruled. Subject to the Agreement, the Services will be made available to Subscriber during the applicable Order Term on a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) basis.
2.2. Commitment Products. In the event Subscriber purchases any products involving Commitments, the additional terms set forth in this Section 2.2 shall apply:
(a) Commitment Management. Subscriber authorizes nOps to purchase and manage Commitments within Subscriber's Cloud Account(s) on Subscriber's behalf. nOps is not a fiduciary of Subscriber and the relationship created by this authorization is not an agency, partnership, or joint venture. nOps has sole discretion in determining the quantity, type, and length of the Commitments to procure on Subscriber's behalf and has the sole authority on behalf of Subscriber to purchase such Commitments through the applicable cloud service provider; provided that nOps shall use commercially reasonable efforts to optimize the Managed Spend during the applicable Order Term. nOps has no obligation to purchase any particular Commitment or to guarantee any level of savings. Subscriber shall not independently purchase Commitments on the Managed Spend during the applicable Order Term without nOps' prior written consent. Subscriber is solely liable for all Commitments purchased on its behalf, including all fees and costs both during, and that extend beyond, the Order Term. Except as otherwise specified in the applicable Order Form, upon termination or expiration of the Agreement, Subscriber shall continue to maintain ownership of Subscriber's Cloud Account(s) used to purchase or manage such Commitments and shall assume all ongoing obligations with respect thereto.
(b) Managed Spend. The Services apply solely to the portion of Subscriber’s cloud spend designated in the applicable Order Form (the “Managed Spend”). nOps has no obligation or authority with respect to any cloud spend outside the Managed Spend, and Subscriber retains full control over all such non-designated spend. Subscriber shall: (i) notify nOps in writing no less than thirty (30) days prior to any planned action that is reasonably expected to reduce the Managed Spend by twenty-five percent (25%) or more, including any planned migration, decommissioning, or material reduction in cloud workloads; (ii) not take any action within Subscriber’s Cloud Account(s) that materially interferes with nOps’s ability to perform the Services on the Managed Spend, including restructuring cloud accounts, materially changing instance types or configurations at scale, or enabling billing features that alter the measurement of spend or savings, without providing nOps reasonable advance written notice; and (iii) cooperate with nOps in good faith to maintain the conditions necessary for nOps to perform the Services effectively. nOps is not liable for, and shall not be deemed in breach of the Agreement as a result of, any failure to deliver savings, any underperformance of the Services, or any underutilization of Commitments, to the extent such failure, underperformance, or underutilization is caused by or attributable to Subscriber’s breach of this Section, Subscriber’s reduction of the Managed Spend, or any change to Subscriber’s cloud environment that was not consented to by nOps.
2.3. Service Levels. The nOps Service Level Agreement, which may be updated by nOps from time to time, is available at https://help.nops.io/docs/support/customer-service-sla/.
2.4. Modifications to Services. nOps may modify, update, or enhance the Services from time to time, provided that such modifications do not materially diminish or degrade the core functionality of the Services during the applicable Order Term.
2.5. Third-Party Services. The Services may interoperate with or rely upon products, platforms, services, or infrastructure provided by or on behalf of Subscriber or third parties (“Third-Party Services”). If Subscriber chooses to use a Third-Party Service with the Services, Subscriber grants nOps permission to allow the Third-Party Service and its provider to access any data (including, without limitation, data that may constitute Confidential Information) provided to nOps in connection with the Services as required for the interoperation of that Third-Party Service with the Services. nOps makes no representations or warranties regarding, and disclaims all liability arising from, any Third-Party Service, including any failure, unavailability, or performance issues. nOps is not responsible for any disclosure, modification, or deletion of Subscriber Data resulting from access by any Third-Party Service or its provider. Subscriber is solely responsible for maintaining all necessary accounts, credentials, and compliance with Third-Party Service provider terms. nOps may modify or cease integrations with Third-Party Services at any time without liability, and nOps cannot guarantee the continued availability of any Service features that interoperate with Third-Party Services.
3.1. Notification. Subscriber shall notify nOps no later than thirty (30) days prior to the execution of an enterprise discount program or a cross-service private pricing agreement with a cloud service provider during the applicable Order Term.
3.2 Cloud Provider Compliance. Subscriber shall at all times maintain full compliance with all requirements of each agreement that Subscriber has with each applicable cloud service provider’s terms of service, customer agreement, and acceptable use policies.
3.3. Account Access and Information. Subscriber shall (a) grant nOps the necessary permissions, access credentials, and authorizations required to perform the Services, including read-only access to billing and usage data and authority to purchase Commitments within the Managed Spend; and (b) provide true, accurate, current, and complete information as required for registration, onboarding, and the ongoing provision of the Services.
3.4 Use Restrictions. Subscriber shall at all times use the Services in accordance with the Documentation. Without limiting the foregoing, Subscriber shall not (and shall not allow any third party to) directly or indirectly: (a) use the Services except for Subscriber’s own benefit in accordance with the Agreement; (b) download, print, or otherwise obtain access to the Service Materials in whole or in part except for Subscriber’s own benefit in accordance with the Agreement; (c) use the Services or Service Materials to build an application or product that is competitive with any of nOps’s products or services; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying algorithms of the Services; (e) sublicense, transfer, distribute, or otherwise make available the Services or any component thereof to any third party; (f) interfere with or disrupt the integrity or performance of the Services; (g) attempt to gain unauthorized access to the Services; (h) copy the Services or any part, feature, function, or user interface thereof; or (i) frame or mirror any part of the Services. If there is an actual or suspected breach of this Section 3.4, nOps may, in its sole discretion, suspend Subscriber from the Services.
4.1. Fees. Subscriber shall pay nOps the fees set forth in the applicable Order Form in accordance with the payment terms specified therein. All fees are non-cancelable and, except as expressly provided herein, non-refundable.
4.2. Payment Terms. nOps shall provide documentation reasonably requested by Subscriber evidencing all Fees. Unless otherwise specified in the applicable Order Form, all invoices shall be due and payable within thirty (30) days of the date of invoice. nOps shall be entitled to recover its reasonable attorneys’ fees and collection costs in connection with Subscriber’s breach of its payment obligations hereunder.
4.3. Fee Disputes. If Subscriber disputes any portion of an invoice in good faith, Subscriber shall pay the undisputed portion when due and provide nOps with written notice of the disputed amount, along with a reasonably detailed description of the basis for the dispute, within fifteen (15) days of receipt of the invoice. The Parties shall work in good faith to resolve any such dispute promptly.
4.4. Taxes. Subscriber is responsible for the payment and remittance of all applicable sales, use, and similar taxes, if any, to regulatory authorities, excluding taxes that are assessed based on nOps’ income.
4.5. No Offset. Fees and expenses due from Subscriber under the Agreement may not be withheld or offset by Subscriber against other amounts for any reason.
4.6. Suspension for Non-Payment. If nOps does not receive all undisputed amounts due and owing under the Agreement within thirty (30) days after delivery of written notice to Subscriber of the failure to pay such overdue balances, nOps may, at its option and without liability, suspend the Services, in whole or in part, until all amounts due are paid in full.
5.1. Confidentiality Obligations. The Receiving Party agrees to: (a) hold the Disclosing Party’s Confidential Information in strict confidence; (b) not disclose any Confidential Information to any third party other than the Receiving Party’s and its Affiliates’ respective officers, directors, employees, independent contractors, consultants, agents, or advisors who have a need to know such information and who are bound by confidentiality obligations at least as protective as those set forth herein; and (c) not use Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information using at least the same degree of care that it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. The Receiving Party is liable for any breach by its Representatives of this Section 5.
5.2. Exceptions. The obligations set forth in Section 5.1 do not apply to any information that: (a) is or becomes generally available to the public through no fault of or breach of the Agreement by the Receiving Party; (b) was rightfully in the Receiving Party’s possession without restriction prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on disclosure and without breach of any obligation of confidentiality.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by applicable law, regulation, or court order, provided that the Receiving Party: (a) provides the Disclosing Party with prompt prior written notice of such requirement (to the extent legally permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy; and (b) discloses only that portion of the Confidential Information that is legally required to be disclosed.
5.4. Return or Destruction. Upon termination or expiration of the Agreement, or upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all Confidential Information of the Disclosing Party in its possession or control, including all copies, extracts, and summaries thereof, and shall certify such return or destruction in writing upon request. The Receiving Party may retain copies of Confidential Information to the extent required by applicable law or regulation, or as stored in automated backup systems in the ordinary course of business, subject to the continuing confidentiality obligations hereunder.
5.5. Survival. The obligations of confidentiality set forth in this Section 5 survive the termination or expiration of the Agreement for a period of five (5) years; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, such obligations survive for so long as such information retains its trade secret status.
5.6. Equitable Remedies. Each party acknowledges and agrees that breach of the obligations set forth in this Section 5 may cause irreparable damage for which recovery of money damages would be inadequate, and that each party is therefore entitled to obtain timely injunctive relief to protect such party’s rights under the Agreement in addition to any and all remedies available at law.
6.1. Subscriber Data. As between the parties, Subscriber retains all right, title, and interest in and to the Subscriber Data. Subscriber grants nOps a non-exclusive, worldwide, royalty-free license during the Order Term to access, collect, use, process, store, and display Subscriber Data for the purposes of providing the Services, performing nOps’ obligations under the Agreement, and supporting Subscriber’s use and engagement with the Services. In addition, as long as data is anonymized and does not identify Subscriber or any individual person, nOps may combine such data with the anonymized data of other subscribers to provide benchmarking, analytics, or to otherwise improve the Services
6.2. Data Security. nOps implements and maintains commercially reasonable administrative, technical, and physical safeguards designed to protect Subscriber Data against unauthorized access, use, disclosure, alteration, or destruction. Such safeguards are no less protective than industry standard practices for cloud-based SaaS platforms. Each party shall promptly notify the other party in writing upon becoming aware of any unauthorized access, use, or disclosure of the other party’s Confidential Information.
6.3. nOps Technology. As between the parties, nOps retains all right, title, and interest in and to the Services, the Service Materials, and all related technology, software, algorithms, machine learning models, processes, methodologies, inventions, improvements, modifications, derivative works, and all Intellectual Property Rights therein. Nothing in the Agreement conveys any ownership interest to Subscriber in or to any of the processes or methodologies used to perform the Services or in or to any Service Materials, in whole or in part.
6.4. Feedback. To the extent Subscriber or any of its authorized users provides any feedback, suggestions, enhancement requests, recommendations, corrections, or other input relating to the Services or any nOps products or services (collectively, “Feedback”) to nOps, Subscriber assigns to nOps all right, title, and interest in and to such Feedback, and nOps is free to use, reproduce, modify, distribute, and otherwise exploit such Feedback without restriction, attribution, or compensation to Subscriber. Subscriber acknowledges that nOps may develop features, products, or services that are similar to or competitive with any Feedback provided by Subscriber.
7.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) it has the full right, power, and authority to enter into the Agreement and to perform its obligations hereunder; (c) the execution and performance of the Agreement does not and will not conflict with or violate any agreement to which it is a party or by which it is bound; and (d) it shall comply with all applicable laws, rules, and regulations in the performance of its obligations under the Agreement.
7.2. nOps Warranties. nOps represents and warrants that the Services will perform substantially in accordance with the Documentation under normal use during the applicable Order Term.
7.3. Subscriber Warranties. Subscriber represents and warrants that: (a) Subscriber has the right and authority to grant nOps access to and use of the Subscriber Data and Subscriber’s Cloud Account(s) as contemplated by the Agreement; (b) the Subscriber Data and nOps’s use thereof as authorized under the Agreement does not violate any applicable law or infringe or misappropriate any third party’s rights; (c) Subscriber uses the Services and Service Materials only in accordance with the Agreement; and (d) it will not upload into the Services any data that is regulated as personal information or personal data under applicable law.
7.4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NOPS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF DATA, CONTINUITY, OR ABSENCE OF ERRORS. NOPS DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF NOPS’ CONTROL.
8.1. Indemnification by nOps. nOps shall indemnify, defend, and hold harmless Subscriber and its Affiliates, and their respective officers, directors, employees, and agents (collectively, the “Subscriber Indemnified Parties”) from and against any and all third-party claims, actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to: (a) any claim that the Services, as provided by nOps and used by Subscriber in accordance with the Agreement, infringe or misappropriate any third party’s Intellectual Property Rights; (b) nOps’ gross negligence or willful misconduct in the performance of its obligations under the Agreement; or (c) nOps’ breach of applicable law.
8.2. Intellectual Property Indemnification Exclusions. nOps has no obligation under Section 8.1(a) to the extent a claim arises from: (i) modifications to the Services made by or at the direction of Subscriber; (ii) Subscriber’s combination of the Services with products, services, or data not provided by nOps, where such claim would not have arisen but for such combination; (iii) Subscriber’s use of the Services in a manner not authorized by the Agreement or the Documentation; or (iv) Subscriber’s continued use of an infringing version of the Services after nOps has provided a non-infringing alternative.
8.3. Intellectual Property Infringement Claims. If the Services are held to infringe any third party intellectual property rights, nOps may, within a reasonable time, at nOps’ sole option, either: (a) secure for Subscriber the right to continue using the infringing item; (b) replace such item with a substantially equivalent non-infringing item; or (c) if nOps determines that neither (a) nor (b) is commercially practicable, terminate the Agreement upon written notice to Subscriber and refund to Subscriber any portion of the fees prepaid by Subscriber for the infringing Service for the period following termination. Sections 8.1, 8.2 and 8.3 sets forth nOps’ entire liability, and Subscriber’s sole and exclusive remedy, with respect to any infringement claims relating to the Services.
8.4. Indemnification by Subscriber. Subscriber shall indemnify, defend, and hold harmless nOps and its Affiliates, and their respective officers, directors, employees, and agents (collectively, the “nOps Indemnified Parties”) from and against any and all Losses arising out of or relating to: (a) Subscriber’s breach of the Agreement, including any breach of the representations, warranties, or obligations set forth herein; (b) Subscriber’s misuse of the Services in violation of the Agreement or applicable law; (c) any claim by a third party arising from or relating to Subscriber Data, including any claim that Subscriber Data infringes or misappropriates any third party’s Intellectual Property Rights or violates any applicable law; or (d) Subscriber’s gross negligence or willful misconduct.
8.5. Indemnification Procedures. The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim for which indemnification is sought (provided that failure to provide prompt notice does not relieve the indemnifying party of its obligations except to the extent materially prejudiced by such failure); (b) grant the indemnifying party sole control of the defense and settlement of such claim (provided that the indemnifying party may not settle any claim that imposes any obligation or liability on the indemnified party or admits liability on behalf of the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld); and (c) provide reasonable cooperation and assistance to the indemnifying party in the defense of such claim, at the indemnifying party’s expense. The indemnified party has the right to participate in the defense of any such claim at its own expense with counsel of its own choosing. The indemnified party’s failure to perform any obligations under this Section 8.5 shall not relieve the indemnifying party of its obligations under Section 8 except to the extent the indemnifying party has been materially prejudiced by such failure.
9.1. Exclusion of Consequential Damages. IN NO EVENT IS EITHER PARTY LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST DATA, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL) ARISING OUT OF OR RELATING TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Limitation of Liability Cap. EXCEPT FOR CLAIMS ARISING FROM: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER; (B) SUBSCRIBER’S BREACH OF SECTION 3.4 (USE RESTRICTIONS); OR (C) SUBSCRIBER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE GREATER OF (X) THE LIABILITY CAP AMOUNT SET FORTH IN THE APPLICABLE ORDER FORM, OR (Y) THE TOTAL AMOUNT OF FEES ACTUALLY PAID OR PAYABLE BY SUBSCRIBER TO NOPS UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.1. Term of Agreement. The Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated in accordance with this Section 10.
10.2. Order Term. The initial term and any renewal terms of each Order Form are as set forth in such Order Form. Unless otherwise specified in the applicable Order Form, each Order Form automatically renews for successive periods equal to the initial term unless either party provides the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Order Term.
10.3. Termination for Cause. Either party (the “Non-Breaching Party”) may terminate an Order Form or the Agreement upon written notice if the other party materially breaches any provision of the Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the Non-Breaching Party.
10.4. Effect of Termination. Upon termination or expiration of an Order Form or the Agreement: (a) all rights and licenses granted to Subscriber under the applicable Order Form (or all Order Forms, in the case of termination of the Agreement) immediately terminate; (b) Subscriber shall immediately cease all use of the Services under the applicable Order Form; (c) if termination occurs prior to the end of the Order Term, Subscriber agrees to maintain ownership of Subscriber’s Cloud Account(s) created within Subscriber’s organization to render Services and, to the extent Commitment products are applicable, is solely liable for all Commitments purchased to render Services prior to the date of termination; and (d) each party shall comply with its obligations under Section 5 with respect to Confidential Information.
10.5. Data Portability. If Subscriber requests in writing within thirty (30) days after the effective date of termination or expiration of the Agreement, nOps shall make Subscriber Data available to Subscriber for export or download. After that thirty (30) day period, nOps shall have no obligation to maintain or provide any Subscriber Data, and may thereafter delete or destroy all copies of Subscriber Data in its systems or otherwise in its possession or control.
10.6. Survival. The following provisions survive the termination or expiration of the Agreement: Sections 1 (Definitions), 4 (Fees and Payment, to the extent of any amounts accrued or owing), 5 (Confidentiality), 6 (Data and Intellectual Property, to the extent applicable), 7.4 (Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.4 (Effect of Termination), 10.6 (Survival), and 11 (General Provisions), and any other provisions that by their nature should survive.
11.1. Governing Law. The Agreement is governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.
11.2. Independent Contractor. The parties understand and acknowledge that the Services which nOps provides to Subscriber are in the capacity of an independent contractor and not as an employee or agent of Subscriber. nOps controls the conditions, time, details, and means by which nOps performs the Services. Except as expressly stated in Section 2, nOps has no authority to commit, act for or on behalf of Subscriber, or to bind Subscriber to any obligation or liability.
11.3. Publicity. Neither party may use the other party’s name, logo, trade name, trademark, or other commercial or product designation for any purpose without the prior written consent of the other party.
11.4. Assignment. Subscriber may not assign or transfer the Agreement or any of its rights or obligations hereunder without the prior written consent of nOps. nOps may assign the Agreement, in whole or in part, without the consent of Subscriber, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section is null and void. The Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
11.5. Force Majeure. Neither party is liable for any failure or delay in performing its obligations under the Agreement (other than payment obligations) where such failure or delay results from events beyond the reasonable control of such party, including acts of God, natural disasters, epidemics, pandemics, terrorism, war, government actions, labor disputes, power failures, internet or telecommunications failures, or denial-of-service attacks (each, a “Force Majeure Event”). The affected party shall provide prompt written notice of the Force Majeure Event and use commercially reasonable efforts to resume performance as soon as practicable. If a Force Majeure Event continues for more than sixty (60) days, either party may terminate the Agreement upon written notice to the other party.
11.6. Notices. All notices, requests, demands, and other communications required or permitted under these Terms are in writing and are deemed duly given: (a) when delivered by hand; (b) one (1) business day after being sent by nationally recognized overnight courier; (c) upon confirmed receipt when sent by email to the email address specified in the applicable Order Form; or (d) three (3) business days after being mailed by certified or registered mail, return receipt requested, postage prepaid, to the address specified in the applicable Order Form or such other address as a party may designate by written notice to the other party.
11.7. Entire Agreement. The Agreement, including these Terms, all Order Forms, exhibits, and any other documents expressly referenced herein, constitutes the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. Subscriber acknowledges that there were no representations or promises made by nOps on which Subscriber has relied in entering into the Agreement that are not expressly stated herein.
11.8. Amendments. nOps may update these Terms from time to time. If nOps makes material changes to these Terms, nOps will provide notice to Subscriber by posting the updated Terms on nOps’ website or through other reasonable means. Subscriber’s continued use of the Services after such notice constitutes acceptance of the updated Terms. The Agreement may not otherwise be amended except by a written instrument signed by both parties.
11.9. Severability. If any provision of the Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, shall be struck, and the remaining provisions continue in full force and effect.
11.10. Waiver. The failure of either party to enforce any right or provision of the Agreement does not constitute a waiver of such right or provision unless acknowledged in writing by the waiving party. No waiver is deemed a waiver of any subsequent default under the same or any other term or provision contained herein.
11.11. Relationship to Other Agreements. The parties acknowledge that these Terms apply to the Services and do not govern the use of other offerings, products, or subscriptions provided by nOps. During the applicable Order Term, Subscriber may continue to use nOps’ other offerings, products, or subscriptions in accordance with nOps’ applicable terms of service. If there is any conflict between nOps’ other terms of service and these Terms, these Terms govern with respect to the Services.
11.12. Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties and their respective permitted successors and assigns, and nothing herein, express or implied, is intended to or confers upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
11.13. Construction. The headings in the Agreement are for reference purposes only and do not affect the meaning or interpretation of the Agreement. The word “including” means “including without limitation.” Both parties have participated in the negotiation and drafting of the Agreement, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provision of the Agreement.
