Terms & Policies
Terms of Service
Nitro Sign Premium and Nitro Identity Hub
These Terms of Service for Nitro Sign Premium and Nitro Identity Hub (the “Terms of Service”) are a binding contract by and between Nitro (as defined in Section 2 below) and the legal entity identified in the Order Form as the customer (“Customer”) and apply to all Services (as defined in Section 2 below) made available by Nitro. Nitro and Customer may be referred to herein collectively as the "Parties" or individually as a "Party".
Depending on the Services Customer is signing up for, additional Product Specific Terms (as defined in Section 2 below) may apply. No terms or provisions of any Customer purchase order, agreement, statement of work or other document provided by Customer shall have any effect on the rights, duties or obligations of the Parties and are hereby rejected by Nitro.
NITRO PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT (AS DEFINED IN SECTION 2) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" OR “BUY NOW” BUTTON OR BY ACCESSING OR USING THE SERVICE OR BY SIGNING THE ORDER FORM, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (C) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, NITRO WILL NOT AND DOES NOT LICENCE THE SERVICES TO CUSTOMER AND YOU MUST NOT USE THE SERVICES OR DOCUMENTATION.
1.1. Who is Nitro. Nitro is a software provider that, among other software, makes available electronic signature and electronic identity tools to its customers. Nitro offers the Services which can be accessed remotely, via the Internet. Nitro may also provide Implementation and Activation Services (as defined in Section 2).
For purposes of the Agreement, the following terms have the following meanings:
“Additional Fee” means any additional fee(s), as set out in the Order Form or as elsewhere agreed between the Parties in writing, which is due when using a specific signing- or identification method which is not included in the default Subscription Fee or when Customer orders Implementation and Activation Services;
“Affiliate” of a Party means any other entity that, directly or indirectly, controls, is controlled by, or under common control with, that Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the business of the other entity through ownership of at least 50% of the shares, voting rights, participation, or economic interest in the other entity;
"Aggregated Statistics” has the meaning given in Section 4.3;
“Agreement” means the entire agreement between Nitro and Customer, including the Nitro Order Form and its annexes and schedules, these Terms of Service, the Product Specific Terms (if applicable) and the Data Processing Addendum;
“Authorized Reseller” means an entity duly authorized by Nitro to resell or provide service with respect to, all or part of the Services in such geographic area where such party is so authorized to do so by Nitro;
“Authorized Reseller Agreement” means the agreement between an Authorized Reseller and Customer, if applicable;
“Beneficiaries” means the third party(ies) legal entity(ies) (e.g., Affiliates of Customer) explicitly listed on the Order Form as a ‘Beneficiary’, having the right to use the Services under the Agreement;
“Business Day" means a normal working day from 9.00 a.m. to 5.00 p.m. (Central European (Summer) Time zone) from Monday to Friday, excluding Belgian public holidays;
“Confidential Information” of a Party means any information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or after the Effective Date and, whether in written, oral, electronic or in any other form, and which: (i) is explicitly marked as confidential or proprietary or similar marking, (ii) should reasonably be considered confidential given the nature of the information and/or the circumstances surrounding its disclosure, or (iii) is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, customer lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, notes, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of Nitro shall include, without limitation, the Services and the Documentation;
“Customer” has the meaning given in the preamble;
“Customer Data” means information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of Customer, a Beneficiary or a User to, and processed by, the Services. For example, Customer Data may include documents uploaded for signature and contact details uploaded into the Services. Customer Data does however not include payment records, credit cards or other information Customer uses to pay Nitro, other information and records related to Customer’s account and Aggregated Statistics;
“Data Processing Addendum” means the most recent version of the applicable Data Processing Addendum as may be amended from time to time and as published online: www.gonitro.com/trust-center/legal/data-processing-addendum-nitro-sign-premium-nitro-identityhub;
"Designated Nationals” has the meaning given in Section 16.12;
“Documentation” means the most recent version of the official technical and functional product information for the Services that Nitro generally makes available from time to time to its Customers as published online at: Nitro Documentation;
“Effective Date” means the effective date as set out in the Order Form, representing the start date of the Agreement;
“Embargoed Countries” has the meaning given in Section 16.12;
“Feedback” has the meaning given in Section 4.2;
“Force Majeure” means a temporary or permanent inability of a Party to fulfill its obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. Force Majeure shall include without limiting the foregoing: acts of god, tsunami, war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, internet failure, hosting failure, cyberattacks or DDOS attacks, floods, explosion, fire, earthquake, weather conditions, epidemics or pandemics, strike or social action, or any other circumstances mutually agreed by both Parties to be a Force Majeure;
“Implementation and Activation Services” means such implementation and activation services offered by Nitro to Customer as further set out in an Order Form, where applicable;
“Initial Term” has the meaning given in Section 9.1 and represents the initial period for which the Agreement is concluded as set out in the Order Form. The Initial Term starts on the Effective Date and constitutes the minimal commitment taken by Customer;
“Intellectual Property Rights” means any intellectual property rights including but not limited to: (i) copyright, moral rights, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, renewals, extensions, continuations, divisions, reissues, or improvements for or relating to any of these rights; and, (iii) all other intellectual or industrial property rights and equivalent or similar forms of protection existing anywhere in the world;
“Invoice Dispute Period” has the meaning given in Section 8.4;
“Losses” means any losses, damages, liabilities, costs (including reasonable legal fees).
"Module Extension" means an addition to the Services which provides one or more significant new functionalities or architectures which none of the existing modules of the Services already contained before, or only contained in a limited form before, and therefore cannot be considered as a New Version.
“New Version” means any new improved, modified, revised, corrected, upgraded, enhanced or updated version of the Services that Nitro may from time to time introduce that is not a Module Extension;
“Nitro” means Nitro Software Belgium NV., a company incorporated under Belgian law, with registered offices at Wapenstraat 14, box 301, 2000 Antwerp, Belgium and enterprise number 0467.046.486;
"Nitro Identity Hub” means software features and functionalities that enables Customer, Customer’s Beneficiaries and Users to identify individuals online via the Services made available by Nitro under the product name ‘Nitro Identity Hub’;
"Nitro IP" means the Services, Documentation, Module Extensions, New Version(s), Results, and any and all Intellectual Property Rights therein and thereto. For the avoidance of doubt, Nitro IP does not include Customer Data.
"Nitro Sign Premium” means software features and functionalities that enables Customer, Beneficiaries and Users to sign documents electronically as made available by Nitro via the Services under the product name ‘Nitro Sign Premium’;
“Notification Email Address” means the email address(es) designated by Customer in the Order Form, or as communicated to the Authorized Reseller (as the case may be). Any changes to the Notification Email Address may be notified in writing to Nitro’s relationship manager;
“Order Form” means Nitro’s or, where applicable, an Authorized Resellers’, ordering document describing the offer as agreed between Customer and Nitro (which may be in electronic form) for use of the Services. The Order Form contains a description of the Services ordered, the fees associated with such Services, and other applicable commercial terms and is governed by these Terms of Service;
"Overconsumption Fee” means the additional fee due for each transaction (in electronic signatures or identifications) once the Subscription Volume has been exceeded as set out in the Order Form;
“Party” and “Parties” has the meaning given in the preamble;
“Product Specific Terms” means Nitro’s then-current product specific terms which are incorporated herein by reference and that only apply to specific Services or particular functionalities within the Services in addition to these Terms of Service. These Product Specific Terms apply by default to the specific Services they reference. The Product Specific Terms are located at: https://www.gonitro.com/trust-center/legal/product-specific-terms/nitro-sign-premium-nitro-identityhub, as may be amended from time to time;
“Reasonable Use” means using the Services in a fair and normal way, based on factors such as the number of Users, transactions, data storage, bandwidth or processing power and within the limitations of the Services as described in the Documentation. Reasonable Use also means that Customer’s (including its Beneficiaries’ and Users’) usage patterns do not deviate significantly from the average or expected usage levels for each customer or its users, and that Customer’s (including its Beneficiaries’ and Users’) use of the Services does not negatively affect the performance, availability, security, or integrity of the Services or other customers’ use of the Services. Nitro reserves the right to define what constitutes Reasonable Use at its sole discretion.
“Release” means any improved, modified, revised, corrected, upgraded, enhanced or updated version of the Service from time to time issued by Nitro pursuant. A release is registered by way of a change of the release number. For example, Nitro Sign Premium 1.x.y is followed by Nitro Sign Premium 2.x’.y’ and they represent two subsequent Releases of the Service;
“Renewal Term” has the meaning given in Section 9.1;
“Results” means any results offered by Nitro to Customer as a result of the Implementation and Activation Services;
“Sales Tax” has the meaning given in Section 8.7;
“Services” the service(s) hosted by Nitro (via its hosting partner) offered as Software-as-a Service and which are: (i) reflected in Customer's Order Form; and, (ii) accessible for Customer and Users when using a web browser or API over the internet. Services also include New Version(s) and Module Extensions, where applicable;
“Service Suspension” has the meaning given in Section 9.4;
“Subscription Fee” means the recurring subscription fee to be paid by Customer to Nitro (or an Authorized Reseller, as applicable) as specified in the Order Form related to the right to use the Services and the provision of Support;
“Subscription Volume” means the amount of transactions (in electronic signatures or identifications) included in the default Subscription Fee, as per the volume amount set out in the Order Form or as agreed elsewhere in writing between the Parties;
“Support” means the support services related to the Services provided by Nitro to Customer as described in Nitro’s then-current Service Level Agreement located at https://www.gonitro.com/trust-center/legal/service-level-agreement, as may be amended from time to time, which are incorporated herein by reference;
“Term” has the meaning given in Section 9.1;
“Terms of Service” has the meaning given in the preamble and refers to the then-current Terms of Service as located on https://www.gonitro.com/trust-center/legal/terms-of-service/nitro-sign-premium-nitro-identity-hub;
“Third-Party Claim” means any third-party claim, suit, action, or proceeding;
“Third Party Signing Methods” has the meaning ascribed thereto in Section 15.2(a);
“Trial License” has the meaning ascribed thereto in Section 3.8(a);
“Trial License Expiry Date” means the expiry date of the Trial License as set out in the Order Form;
"Trial License Period” has the meaning given in Section 3.8(a);
“User” means Customer's (or its Beneficiaries’ as applicable) employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and, (ii) for whom access to the Services has been purchased in an Order Form. Each User shall be an individual person. Depending on the Services, a User might be required to accept Terms or Use before having the right to use and access the Services.
3. RIGHT TO USE THE SERVICES
3.2. Use Restrictions. Customer shall not use the Nitro IP for any purposes beyond the scope granted in the Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Users or third parties to: (i) copy, modify, or create derivative works of the Nitro IP, in whole or in part; (ii) rent, lease, lend, (re)sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Nitro IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code or other trade secrets of the Nitro IP, in whole or in part; (iv) remove any proprietary notices from the Nitro IP; (v) use the Nitro IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (vi) create any “links” to or “frame” or “mirror” of the Services, or any portion thereof; (vii) make the Services available on a server that can be accessed via a public network, such as, for example and without limitation, the internet or an intranet, in a manner that allows the Services to be copied by or used in violation of the Agreement or to circumvent any restrictions herein; or, (viii) share any User credentials in violation of these Terms of Service.
3.3. Unauthorized Sharing of Licenses. Customer acknowledges that each User account is assigned to a specific User and is non-transferable. An account may only be used by the individual User to whom it is assigned. Customer agrees to take reasonable measures to prevent unauthorized sharing of licenses and to ensure compliance with the terms of this Agreement.
3.4. Onboarding, Activation and Delivery. Nitro shall undertake reasonable efforts to make the Services available to Customer within ten (10) Business Days after the Effective Date depending on the onboarding specifications. Customer may order Implementation and Activation Services, as set out in the Order Form.
3.5. Integration of the Services. Unless explicitly otherwise described in the Order Form or any other agreement executed between both Parties, it shall be Customer’s responsibility to integrate the Services within Customer’s infrastructure or software (if applicable).
3.6. Evolution of the Services. Nitro offers the Services as a Software-as-a-Service, which means Nitro is continuously working on updating and improving the Services. New Versions of the Services will be made available to Customer as generally available to Nitro customers during the Term. Nitro reserves the right (but shall not be obligated) to make operational or technical changes to the Services in order for the Services to keep up with market standards. Nitro shall inform Customer of any modifications, additions or enhancement of any feature of the Services within a reasonable time.
3.7. Reservation of Rights. Nitro reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Nitro IP. Customer recognizes that the Nitro IP is protected by copyright and other laws.
3.8. Trial License. Notwithstanding anything to the contrary in these Terms of Service, this Section 3.8 only applies to Customers if a trial or evaluation period has been explicitly accepted by Nitro in the Order Form:
a) if Customer is evaluating the Services, Nitro hereby grants to Customer a non-exclusive, non-transferable, revocable, limited-term license to access and use the Services solely for internal testing and evaluation purposes (the “Trial License”) as from the Effective Date until the Trial License Expiry Date (the “Trial License Period”);
b) Nitro has the right to terminate for convenience the Agreement during the Trial License Period at any moment in time without prior notification and without any liability;
c) Customer has the right to terminate the Agreement for convenience by written notice to Nitro during the Trial License Period. If such termination right is not used by the Customer before the Trial License Expiry Date, the Customer shall no longer have the right to terminate the Agreement for convenience and the Agreement and Trial License will automatically transition into Services that are payable by Customer in accordance with Subscription Fees, Additional Fees and Overconsumption Fees, as applicable, as set out in the Agreement for the Term; and,
d) Customer shall not publish any results of benchmark tests run on the Services or disclose its features, errors or bugs to a third party without Nitro’s prior written consent. During the Trial License Period, Nitro shall be under no obligation to provide any Support; provided however, that Nitro may in its sole discretion fix reported errors and provide Customer with Support and consultation concerning the Services at its sole discretion.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Intellectual Property Rights in Nitro IP. Customer acknowledges that, as between Customer and Nitro, Nitro (and where applicable its licensor(s)) is and remains the sole and exclusive proprietary owner of all Nitro IP. Nothing in the Agreement shall convey any title or proprietary right in Nitro IP to Customer or any third party other than as explicitly granted in Sections 3.1 and 3.8(a). Customer shall not in any way acquire any title, rights of ownership, Intellectual Property Rights or other proprietary rights of whatever nature in the Nitro IP. Customer recognizes that the Nitro IP are protected by copyright, trademark and other laws.
4.2. Feedback. If Customer or any User provides feedback or suggestions about any aspect(s) of the Nitro IP or any other Nitro goods or services, by mail, email, telephone, or otherwise, including without limitation, suggesting new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”) then Customer hereby grants Nitro a non-exclusive, royalty-free, transferable, sub-licensable, irrevocable and perpetual worldwide license to use, profit from, disclose, publish, keep secret and/or otherwise exploit such Feedback in any medium without further obligation or compensation to Customer or any User. Feedback will not constitute Customer’s Confidential Information.
4.3. Usage Data. Customer acknowledges and agrees that Nitro generates, compiles, stores and uses aggregated data and system usage, analytics and diagnostic information (“Aggregated Statistics”) to monitor and improve the Services, assist in the delivery of Support, and for the creation of new products and services. As between Nitro and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Nitro. Customer acknowledges that Nitro will be compiling Aggregated Statistics based on Customer’s and other users’ use of the Services and Customer agrees that Nitro may: (a) make such Aggregated Statistics publicly available; (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information; and, (c) use such information for industry benchmarking, to understand usage, improve the Services and Support, develop new products and services, and for any other business purpose. The Aggregated Statistics are not considered Customer Data.
5. CUSTOMER DATA
5.1. Nitro acknowledges that, as between Nitro and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. The Customer hereby grants to Nitro a non-exclusive, royalty-free, worldwide license, license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data to the extent reasonably required to provide the Services and Support to Customer and for the performance of Nitro’s obligations and the exercise of Nitro’s rights under the Agreement. Customer also grants to Nitro the right to sub-license these rights to its subcontractors (such as for example hosting, connectivity and telecommunications service providers) to the extent reasonably required for the performance of Nitro’s obligations and the exercise of Nitro’s rights under this Agreement.
5.2. Customer acknowledges and agrees that for the performance of the Agreement and in order to use the functionalities of the Services, specific Customer Data may be disclosed to recipients and third parties (e.g., for processing documents to be signed, for the creation and signing of documents or for the identification of Users). Notwithstanding Section 11 (Confidential Information), such disclosure shall explicitly not constitute a breach of confidentiality and is permitted.
5.3. Customer warrants to Nitro that the Customer Data when used by Nitro in accordance with the Agreement will not infringe the Intellectual Property Rights or any other legal rights of any person or third party and will not breach the provisions of any applicable law, statute or regulation, in any applicable jurisdiction.
6. DATA PROTECTION
6.1. Data Protection and Data Processing. Nitro will process personal data on behalf of Customer in order to provide the Services, to offer Support and in general to fulfill its rights and obligations under the Agreement. The relevant Data Processing Addendum applies to such processing of personal data and is considered part of the Agreement.
7. USAGE VERIFICATION
7.1. Customer acknowledges and agrees the Services may include real-time built-in volume counters and other reporting tools which are necessary for Nitro to monitor the exact (volume) usage of the Services by Customer, its Beneficiaries and Users. Such usage controls/tools enable Nitro to invoice the relevant Subscription Fees and Additional Fees and Overconsumption Fees (as applicable).
7.2. If such usage control or audit shows that Customer, its Beneficiaries or Users are using the Services beyond the quantity or scope that was legitimately licensed under the Agreement and therefore Customer has underpaid the amount of fees due to Nitro, without prejudice to any other rights and remedies available to Nitro, Customer shall promptly pay the amount of such underpayment to Nitro, together with interest in accordance with Section 8.6.
8. FEES AND PAYMENTS TERMS
8.1. Fees. Customer shall pay Nitro all amounts owning in the currency set out in the Order Form. The Subscription Fees set out in the Order Form constitutes a minimal financial commitment taken by the Customer, notwithstanding if Customer has not entirely consumed the included Subscription Volume.
8.2. Additional Fees. Depending on the Services, functionalities made available and Implementation and Activation Services requested by Customer, Additional Fees might be due (e.g., SMS-OTP signing, activation and usage of signing methods offered via third party providers etc.). Such Additional Fees will be invoiced on a monthly basis, unless otherwise indicated in the Order Form. These Additional Fees only apply if explicitly set out in the Order Form.
8.3. Overconsumption Fees. Overconsumption Fees are due in case the usage exceeds the Subscription Volume as included in the default Subscription Fee. Such Overconsumption Fees will be invoiced on a monthly basis, unless otherwise indicated in the Order Form. These Overconsumption Fees only apply if explicitly set out in the Order Form.
8.4. Invoices, No Refunds. All undisputed amounts in Nitro’s invoices are due within thirty (30) days of issuance. Invoices are to be disputed within ten (10) days as from the date of invoice in writing or by email sent to Nitro’s via email to email@example.com specifying in reasonable detail the nature of the dispute, together with any appropriate information supporting Customer’s position (“Invoice Dispute Period”). Beyond this Invoice Dispute Period, invoices shall be deemed accepted. Unless prohibited by applicable law or if explicitly mentioned in the Order Form, all payments of invoices issued by Nitro to Customer shall be final and non-refundable. In the event Customer is declared to be in a state of bankruptcy, applies for a suspension of payments, is subjected to a general seizure of assets, goes into liquidation or is dissolved, the full amounts payable under the Agreement will become due immediately.
8.5. Electronic Invoicing. Customer explicitly accepts electronic invoicing which will be sent in PDF-format to the Customer’s invoicing email address, as specified in the Order Form. The Customer may request Nitro to send a hard copy of the invoices to its physical address.
8.6. Late Payment. If Nitro does not receive payment by the applicable due date, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of one percent (1%) per month/twelve percent (12%) per annum or the highest rate permissible under applicable law. In addition, Customer shall pay all reasonable costs incurred by Nitro as a result of the enforcement of Customer’s payment obligations. If Customer fails to pay any undisputed outstanding amounts within ten (10) days from receipt of a written default notice, Nitro shall be entitled to suspend its obligations (e.g., by suspending access to the Services) and Customer’s rights hereunder without further notice to Customer or liability to Nitro until receipt of payment of such outstanding amounts. In the event of such suspension, as a condition of reinstating Customer’s access to the Services, Nitro may require Customer to pay in advance for the remainder of then-current Initial Term or Renewal Term (as applicable).
8.7. No Setoff; Taxes. Amounts due under the Agreement are payable to Nitro without set off or counterclaim and without deduction, and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Nitro may require that Customer submits applicable Sales Taxes to Nitro. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Nitro a valid tax exemption certificate within thirty (30) days of the Effective Date. Nitro’s failure to include any applicable tax in an invoice will not waive or dismiss the Parties’ rights or obligations pursuant to this Section 8.7. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Nitro the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 8.7 does not govern taxes based on Nitro’s net income.
8.8. Price increase. Unless the Order Form explicitly sets out that fees will not be subject to a price increase during the Initial Term, all applicable Subscription Fees, Additional Fees, Overconsumption Fees and any other fees included in the Order Form will automatically increase by five percent (5%) each year on the anniversary of the Effective Date, unless Parties have agreed upon different applicable fees in writing upon renewal.
8.9. Module Extensions and Upgrade Subscription Plan. Customer may upgrade its subscription plan by ordering Module Extension(s) which might result in additional Subscription Fees, Additional Fees and/or Overconsumption Fees being due. Such Module Extensions can be ordered by signing a new Order Form or addendum or via the Authorized Reseller (if applicable). Module Extensions apply by default for the remaining part of the Term, but will only be activated upon Customer’s explicit request.
9. TERM AND TERMINATION
9.1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for the period set out in the Order Form (the "Initial Term"). Upon expiration of the Initial Term or any subsequent Renewal Term (as defined below), this Agreement will automatically and tacitly renew for additional successive one (1) year terms (each a "Renewal Term" and together with the Initial Term, the "Term") unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least six (6) months prior to the expiration of the then-current Term.
9.3. Termination in case of Bankruptcy. Subject to applicable bankruptcy law, either Party may terminate immediately the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claims to which it may be entitled by law, upon providing the other Party with written notice of termination if the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
9.4. Suspension or Termination of Access. Without limiting Nitro’s other rights and remedies, and notwithstanding anything to the contrary in this Agreement, Nitro may suspend or terminate a Customer’s or other User’s access to any portion or all of the Services at any time if: (i) Nitro reasonably determines that: (a) there is a threat or attack on any of the Nitro IP; (b) Customer's or any User's use of the Nitro IP disrupts or poses a security risk to the Nitro IP or to any other customer or vendor of Nitro; (c) Customer, or any User, is using the Nitro IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or, (e) Nitro's provision of the Services to Customer or any User is prohibited by applicable law; (ii) any vendor of Nitro has suspended or terminated Nitro's access to or use of any third-party services or products required to enable Customer to access the Services; (iii) Customer fails to pay to Nitro any undisputed amount due hereunder and Customer fails to cure such failure to pay within ten (10) days from the date of a written notice of default from Nitro to Customer; or, (iv) Nitro ceases to be able to own/operate the Services for any legal or regulatory reason(s) (collectively, a “Service Suspension”).Nitro will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension. In the event Nitro is entitled to terminate the Agreement for cause as per Section 9.2, Nitro may alternatively, at Nitro’s option, suspend the right of use and licenses granted hereunder instead of immediately terminating the Agreement, without any formalities or indemnities being required and without prejudice to any other right or remedy available to Nitro pursuant to the Agreement or under applicable law.
9.5. Effects of Termination. Upon termination of the Agreement for whatever reason:
a) Customer’s rights to the Services will automatically cease and all rights and licenses granted to Customer pursuant to these Terms of Service shall automatically terminate;
b) Customer, its Beneficiaries and Users shall immediately cease all use of the Services and delete, destroy, or return all copies of the Documentation in its possession or control;
c) Nitro will delete (or return upon explicit written request of Customer received within thirty (30) days of the effective date of termination) all Customer Data stored in the Services and will decommission Customer’s active environment and/or accounts where the Services are operated. Customer however acknowledges the Services may include functionalities to download such Customer Data directly from the Services (e.g., download functionalities or API calls) which Customer shall in the first instance use to obtain the Customer Data;
d) Subject to Section 9.5(c), each Party shall return or destroy all copies of the other Party’s Confidential Information (except as required to comply with any applicable law provided the confidentiality obligations herein shall apply until for the duration set out in Section 11.4) and upon written request from the Disclosing Party certify, in writing, the destruction thereof;
e) Customer shall promptly pay Nitro all fees and other amounts earned by or due to Nitro, up to and including the effective date of termination, including (but not limited to) the full Subscription Fee, any Additional Fees and Overconsumption Fees (as applicable) which shall become automatically payable in full by Customer (except in case of termination for cause by Customer triggered by a material breach proven attributable to Nitro).
10. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS
10.1. Acceptable Use. Unless otherwise agreed in a particular Order Form, Customer shall not: (a) use the Services for service bureau or time-sharing or purposes or in any other way allow third parties to exploit or use the Services; (b) share passwords or other log-in credentials to any third party or person; (c) share non-public features of the Services with any third party; (d) access or use the Services in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services.
Customer shall also not: (a) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; or (b) use the Services for: (i) any activity that is in breach of the law, public order or public morality, (ii) unsolicited commercial communications (e.g. spam); (iii) collecting or harvesting personal information in breach of the law (e.g., phishing); or, (iv) any activity that is offensive, defamatory, harmful to minors, indecent, illegal, in breach of third-party rights or otherwise objectionable.
Customers and their Users may only use the Services in a manner that constitutes Reasonable Use of the Services. While Nitro does not impose any hard limits on Reasonable Use factors, Nitro reserves the right (but shall have no obligation to), monitor Customer’s, its Beneficiaries’ and User’s usage on an ongoing basis to identify any deviation from Reasonable Use.
If Nitro suspects any breach of the requirements of this Section 10.1, including without limitation by Users, Nitro may suspend Customer’s access to the Services without advance notice, in addition to such other remedies Nitro may have. These Terms of Service do not require that Nitro takes any action against Customer or any User or other third party for violating this Section 10.1, or these Terms of Service, but Nitro is free to take any such action in its sole discretion. If Nitro decides, at its sole discretion, that Reasonable Use of the Services by a Customer, its Beneficiaries’ and/or its Users has been exceeded, Nitro will have the right to throttle or suspend such User’s use of Services. In extreme circumstances, as determined by Nitro in its sole discretion, Nitro will have the right to terminate the Agreement provided that Nitro will make reasonable efforts to provide Customer in advance with a description of the excessive or abnormal usage and an explanation of why it violates Reasonable Use.
10.2. Unauthorized Access. Customer shall prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Nitro immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
10.3. Compliance with Laws. In its use of the Service, Customer and Users shall comply with all applicable laws, including without limitation applicable data protection legislation.
10.4. Customer’s Users. Customer shall use reasonable efforts to make all Users aware of this Agreement's provisions as applicable to such User's use of the Nitro IP and shall cause Users to comply with such provisions. Customer is responsible and liable for: (a) all Users and Beneficiaries using the Service, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of the Agreement applicable to Customer; and, (b) any use of the Services through Customer’s account, whether authorized or unauthorized. Any act or omission by a Beneficiary or by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
11. CONFIDENTIAL INFORMATION
11.1. Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party Confidential Information. Each Receiving Party shall treat all Confidential Information received from Disclosing Party as confidential, keep secret and protect such Confidential Information with not less than a reasonable degree of care and shall not disclose it to any third party other than its Affiliates, agents, employees, advisors or consultants (or with respect to Nitro its suppliers and licensors), and only where: (a) such disclosure is necessary for the performance of Services or with respect to the Agreement; and, (b) such Affiliates, agents, employees, advisors or consultants (or with respect to Nitro its suppliers and licensors) are bound by a confidentiality obligation at least as strict as included in this Section 11. Confidential Information disclosed under the Agreement shall not be used by the Receiving Party for any purpose other than as required for the performance of its obligations under the Agreement. The Receiving Party shall take precautions to maintain the confidentiality of the Disclosing Party’s Confidential Information.
11.2. Exclusions. Confidential Information shall not include information which:
a) is published or comes into the public domain other than by a breach of the Agreement;
b) can be proven to have been known by the Receiving Party before disclosure by the Disclosing Party;
c) is lawfully obtained from a third party other than by a confidentiality breach of such third party; or,
d) can be shown to have been created by the Receiving Party independently of the disclosure and without use of the Disclosing Party’s Confidential Information.
11.3. Judicial or Governmental Order. A Party that receives Confidential Information may disclose such Confidential Information to the extent required in accordance with a judicial or other governmental order, provided that the Receiving Party:
a) gives the Disclosing Party reasonable notice prior to such disclosure to allow it a reasonable opportunity to seek a protective order or equivalent, unless the Receiving Party is legally prohibited from doing so;
b) reasonably cooperates with the Disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy;
c) discloses only that portion of the Confidential Information that is legally required to disclose, and,
d) uses reasonable efforts to obtain reliable written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
11.4. Duration. The obligations in this Section 11 shall replace any prior non-disclosure agreement signed between the Parties (if applicable) and shall survive during the Term and for five (5) years after the termination or expiration of the Agreement; provided however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
12. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
12.1. Mutual Representations and Warranties.
(a) Each Party represents, warrants and covenants that: (i) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder; and, (ii) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
(b) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 12.1(a), THE SERVICES, THE NITRO IP AND ANY IMPLEMENTATION AND ACTIVATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NITRO HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NITRO SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 12(a), NITRO MAKES NO WARRANTY OF ANY KIND THAT THE NITRO IP, OR ANY IMPLEMENTATION AND ACTIVATION SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE OR THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
12.2. Customer’s Warranties.
Customer represents, warrants and covenants that:
(a) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement;
(b) it has accurately identified itself, its Beneficiaries (where applicable) and it has not provided any inaccurate information about itself to Nitro or through the Services;
(c) it is a legal entity authorized to do business pursuant to applicable law;
(d) it shall accurately identify each User and shall not provide any inaccurate information about such User to Nitro or through the Services; and,
(e) that Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Data so that, as received by Nitro and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
13.1. Nitro Indemnification.
(a) Nitro shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Third-Party Claim that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's patents, copyrights, or trade secrets, provided that Customer promptly notifies Nitro in writing of the claim, cooperates with Nitro, and allows Nitro sole authority to control the defense and settlement of such claim.
(b) If a Third-Party Claim is made, or in Nitro’s determination is likely to be made, Customer agrees that Nitro may, at Nitro's sole discretion: (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue to use the Services. If Nitro determines that neither alternative is reasonably available, Nitro may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and Nitro will provide Customer with a pro-rata refund of any Subscription Fees pre-paid by Customer that are related to that specific infringing part of the Services for the period during which Customer was not able to use the Services due to such termination by Nitro.
(c) This Section 13.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Nitro or authorized by Nitro in writing; (ii) misuse of the Services by Customer, Beneficiaries or Users; (iii) modifications to the Services not made by Nitro; or (iv) arises from Customer’s, its Beneficiaries’ or Users’ failure to use the latest New Version; or, (v) any breach of this Agreement by Customer.
13.2. Sole Remedy.
SECTION 13.1 AND 13.2 SETS FORTH CUSTOMER'S SOLE REMEDIES AND NITRO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE NITRO IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE EXCLUSIONS AND LIMITATIONS AS SET OUT IN SECTION 14 (LIMITATION OF LIABILITY) APPLY TO NITRO’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.1.
13.3. Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Nitro's option, defend Nitro, its Affiliates and each of their respective directors, officers, employees and consultants from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights or other rights and any Third-Party Claims based on Customer's or any User's: (i) negligence or willful misconduct; (ii) use of the Nitro IP in a manner not authorized by this Agreement; (iii) use of the Nitro IP in combination with data, software, hardware, equipment, or technology not provided by Nitro or authorized by Nitro in writing; or, (iv) modifications to the Nitro IP not made by Nitro; (v) Customer’s material breach of this Agreement; (vi) Customer’s failure to make required updates to the Services; or, (vii) Customer’s, its Beneficiaries’ or User’s violation of any applicable laws, rules or regulations through or related to the use of the Services; provided that Customer may not settle any Third-Party Claim against Nitro unless Nitro consents to such settlement, and further provided that Nitro will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
14. LIMITATION OF LIABILITY
14.1. LIABILITY CAP. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NITRO'S AGGREGATE LIABILITY (PER EVENT OR SERIES OF CONNECTED EVENTS) ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO NITRO UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
NOTHING IN THIS AGREEMENT SHALL EXLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS (OR ITS AGENT’S OR SUBCONTRACTOR’S) NEGLIGENCE, OR FOR THEFT OR MISAPPROPRIATION OF FUNDS OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
14.2. EXCLUDED DAMAGES. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NITRO BE LIABLE UNDER OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INDIRECT, PUNITIVE, SPECIAL CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING BUT WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, LOST REVENUE, LOSS OR CORRUPTION OF DATA, LOSS OF CUSTOMERS AND CONTRACTS, LOSS OF GOODWILL, THE COSTS OF PROCURING REPLACEMENT GOODS OR SERVICES OR OTHERWISE HOWSOEVER, AND THIRD PARTIES’ CLAIMS, IN EACH CASE ARISING OUT OF OR RELATED TO THE AGREEMENT, REGARDLESS OF WHETHER NITRO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE OR EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. NITRO SHALL ALSO NOT BE LIABLE FOR DAMAGES CONNECTED TO OR AS A RESULT OF OUT OF SCOPE USE OF THE SERVICES BY THE CUSTOMER, ITS BENEFICIARIES AND/OR USERS.
14.3. APPLICATION. THE LIABILITIES LIMITED BY THIS SECTION 14 APPLY TO THE BENEFIT OF NITRO AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OTHER REPRESENTATIVES OFFICERS, AND THIRD PARTY CONTRACTORS.
14.4. LIABILITY ACKNOWLEDGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT NITRO HAS BASED ITS PRICING ON AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES AND DAMAGES AS SET OUT IN THIS AGREEMENT AND THAT SUCH TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 14, NITRO’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
15. NITRO SIGN PREMIUM SPECIFIC TERMS
To the extent Customer elects in the Order Form to receive Services which include Nitro’s ‘Nitro Sign Premium’ product then the following additional terms shall also apply:
15.1 Nitro Sign Premium.
Nitro Sign Premium enables Customer to sign documents electronically via an online web-portal and/or API integration. Depending on the functionalities chosen by Customer and subject to the timely payment of the relevant fees, Nitro Sign Premium supports different signing methods.
15.2 Signing Methods Offered By Third Parties.
(a) Nitro Sign Premium also integrates signing methods offered and/or facilitated by third party providers (e.g., itsme®, Swisscom Signing Service, France Connect, Nordic Identity Schemes, iDIN, OneID, etc.) (“Third Party Signing Methods”) and to the extent the Services include such Third Party Signing Methods, Customer agrees to be bound by the relevant Product Specific Terms, where applicable. The Third Party Signing Methods activated for Customer are by default set out in the Order Form. The available Third Party Signing Methods may evolve over time as Nitro Sign Premium is offered as a Software-as-a-Service, however Third Party Signing Methods resulting in Additional Fees to be paid will only be activated upon Customer’s specific instructions.
(b) Nitro reserves the right to modify the applicable Product Specific Terms at any moment in time by notifying Customer. Such modification might for example be required due to changes and/or updates pushed by the third party providers involved in the provisioning of the Third Party Signing Methods or due to regulatory changes. In the event Customer objects to the applicability of such new updated Product Specific Terms, Customer shall immediately cease the use of the particular Third Party Signing Method and will inform Nitro in writing within thirty (30) days after Nitro notified the Customer of the updated Product Specific Terms. Nitro shall in such case have the right to deactivate the relevant signing method without any liability for Nitro.
(c) As Nitro relies on third party providers for the provisioning of Third Party Signing Methods, Nitro reserves the right to deactivate these Third Party Signing Methods at any moment in time upon giving written notice to Customer if such deactivation is deemed necessary (for example in case the cooperation between Nitro and such third party provider is terminated or in case the third party provider ceases the offering of the service or the relevant Third Party Signing Method). Nitro shall not be liable for any damages in case of such deactivation, but shall however (pro rata) refund to Customer any usage fees paid upfront (if applicable) for the relevant Third Party Signing Methods by Customer to Nitro related to the period after the effective date of deactivation for which Customer has paid for such Third Party Signing Method but during which it was no longer available due to such deactivation.
(d) All fees related to the Third Party Signing Methods can be adjusted throughout the Term if such price adjustment is based upon objective (external) purposes. Nitro shall in such case inform Customer upfront of any price adjustment which will apply to the fees Nitro is invoicing to Customer. In such case Customer shall have the right to deactivate the usage of the particular Third Party Signing Method by giving written notice to Nitro within a period of thirty (30) days after such notification of price adjustment was notified to Customer. Requesting such deactivation of the relevant Third Party Signing Method is considered the Customer’s sole remedy. The deactivation will in no case affect the existence of the Agreement, which will remain in full force.
(e) In the event an Incident (as defined in Nitro’s Service Level Agreement) occurs related to Third Party Signing Methods, Customer may contact Nitro’s support desk following the procedure set out in Nitro’s Service Level Agreement. As Nitro depends on the respective third party providers for supporting the Third Party Signing Methods, the service levels (and other warranties related to availability) included in the Agreement (including without limitation Nitro’s Service Level Agreement) do not apply on any Third Party Signing Methods. Nitro shall act as Customer’s single point of contact for supporting the Third Party Signing Methods available in Nitro Sign Premium. Customer will not contact the third party provider directly. Depending on the circumstances, a third party provider may however communicate directly with Customer.
15.3 Customer’s Responsibilities With Respect to Nitro Sign Premium.
(b) It is Customer’s sole responsibility to choose an adequate signing method (and/or identification method, if applicable) as made available within Nitro Sign Premium taking into account the purpose for which the electronic signature and the electronically signed document (or the electronic identification as the case may be) will be used. Customer acknowledges that specific types of agreements or documents may, under particular applicable legislation, not be executed by means of an electronic signature. Customer acknowledges and agrees Nitro solely provides a platform for signing documents electronically (or identifying persons as the case may be) and that Customer remains fully responsible for the purpose for which Nitro Sign Premium is used, including the suitability of such use in accordance with the applicable laws and regulations. Nitro cannot be held responsible or be liable to determine whether any particular document or agreement is subject to an exception under applicable legislation and can therefore not be legally executed by means of an electronic signature.
(c) Customer independently determines which documents are uploaded for signing and which messages are sent via Nitro Sign Premium, and Customer is fully responsible for the content of all documents uploaded and messages sent. Customer warrants the content will not be illegal or unlawful and does not breach any third party rights. Customer will fully indemnify Nitro and its Affiliates against any third party claims and all damages arising out of or related to the content of documents uploaded or messages sent by Customer (or its Users) within Nitro Sign Premium.
(d) Customer acknowledges and agrees Nitro Sign Premium is not a document management or data storage tool and that Customer is responsible to store and save (signed) documents elsewhere (for example within Customer’s CRM or ERP software).
(e) Customer shall implement the API integration (if applicable) taking into account all rules and guidelines issued from time to time by Nitro via the Documentation. Nitro will inform Customer upfront in case such Documentation is being updated. Nitro cannot be held responsible in case Nitro Sign Premium is not functioning due to non-compliance by Customer with the applicable Documentation.
(f) Customer shall be transparent towards data subjects on how personal data is being processed when using Nitro Sign Premium.
15.4 Timestamping and Certification.
Customer acknowledges and agrees the Services may contain timestamping and certification functionalities (e.g., for identification or signing purposes). Timestamping and certification services are provided by Nitro’s subcontractors. An overview of such subcontractors is accessible via our Trust Center.
16.1. Independent Contractors. The Parties are independent contractors and shall so represent themselves in all regards as such. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.
16.2. Notices. Nitro may send notices pursuant to this Agreement to Customer’s Notification Email Address provided by Customer. In case no Notification Email Address of Customer is known, notices will be served to Customer’s registered address. Customer may send notices to Nitro pursuant to the Agreement to firstname.lastname@example.org. All notices shall be deemed to have been given either: (a) if by email, on the first Business Day after the email was sent; or, (b) if sent by commercial courier (e.g., FedEx), on the first Business Day after delivery, or if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
16.3. Force Majeure. Except for Customer’s payment obligations, neither Party will be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure.
16.4. Assignment and Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Nitro’s explicit written consent, which shall not be unreasonably withheld. Nitro may assign or transfer its rights, obligations and duties under the Agreement to any third party. Except to the extent forbidden in this Section 16.4, this Agreement will be binding upon and inure to the benefit of the Parties’ respective permitted successors and assigns.
16.5. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
16.6. No Waiver. The Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. Any term or condition of the Agreement may be waived only by a written document signed by the Party entitled to the benefits of such term or condition. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
16.7. Governing Law and Jurisdiction: The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Antwerp, division Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement. This Section 16.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
16.8. Conflicts. In case of a conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (a) any Order Form with more recent Order Forms that expressly state they take precedence over later ones; (b) the Data Processing Addendum; (c) the Product Specific Terms (if applicable); (d) the main body of these Terms of Service; (e) Nitro’s Service Level Agreement; and, (f) any other Nitro policies published online and incorporated by reference in the Agreement.
16.9. Subcontracting. The Customer acknowledges and agrees the Services may contain functionalities provided by Nitro’s third party subcontractors which are engaged by Nitro to perform specific parts of Nitro’s contractual obligations under the Agreement (for example hosting providers, SMS-sending providers, third party signing method providers etc.).
16.10. Publicity. Nitro shall have the right to use any trademarks, logos or other marks of Customer (including Customer’s corporate name) for client references on Nitro’s website, social media announcements, sales presentations and general business development purposes.
16.11. Interpretation. In this Agreement, unless a contrary intention appears: (a) the terms, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular portion hereof and include any Agreement supplemental hereto; (b) words importing a singular number only shall include the plural and vice versa; (c) the term “including” means “including without limitation”; (d) other grammatical forms of defined words or expressions have corresponding meanings; (e) a reference to an article, section, document or Agreement, including this Agreement, includes a reference to that section, document or Agreement as amended from time to time, as permitted hereunder; and, (f) the division of this Agreement into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this Agreement. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship.
16.12. Technology Export. The Services utilize software and technology that may be subject to export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable US and other foreign export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
16.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express clauses of the Agreement.
16.14. Execution in Counterparts. This Agreement may be executed in one or more counterparts and may be signed by means of an electronic signature or accepted by Customer via a click-through acceptance procedure. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
16.15. Language. The Agreement is in the English language only which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English or Dutch.
16.16 Survival. Expiration, termination or cancellation of the Agreement shall be without prejudice to the rights and liabilities of each Party which have accrued prior to the date of termination, and shall not affect the continuance in force of the provisions of the Agreement which are expressly or by implication intended to continue in force, including, without limitation, any Sections relating to Customer payment obligations, Section 4 (Intellectual Property Rights), Section 8 (Fees and Payment Terms), Section 11 (Confidential Information), Section 12.1(b) (Nitro’s disclaimer) and Section 14 (Limitation of Liability).
16.17 Equitable Relief. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in Section 11 or for Customer’s violation or misappropriation of Nitro IP; (b) it would be difficult to determine the damages resulting from its breach of Section 11 or for Customer’s violation or misappropriation of Nitro IP, and such breach would cause irreparable harm to Nitro; and therefore: (c) Nitro will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without any requirement that Nitro prove actual monetary damage post a bond or other security. This Section 16.17 does not limit either Party’s right to injunctive relief for breaches not listed.
16.18 No Reliance on Future Functionality. Customer acknowledges and agrees that, in entering into this Agreement, Customer is not relying on any future enhancements, updates, or additional functionalities related to the Nitro IP that may be provided by Nitro or any third-party licensor. Unless otherwise expressly stated in this Agreement, any obligations undertaken by Nitro to provide such enhancements or updates to the Nitro IP are at their sole discretion and may be subject to separate agreements or fees.
16.19 Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 16.19, Customer acknowledges and agrees Nitro has the right, in Nitro’s sole discretion, to modify the Agreement from time to time, and that modified terms become effective upon notification of the changes (by email or other appropriate communication) to Customer. Customer is responsible for reviewing and becoming familiar with any such modifications and Customer’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms, unless Customer has a right under applicable law to terminate the Agreement due to such changes.
16.20 Relationship to Authorized Resellers. Notwithstanding anything to the contrary in these Terms of Service, the below shall apply if Customer purchased a right to use the Services from an Authorized Reseller:
(a) in addition to the Authorized Reseller Agreement (in which case the Authorized Reseller, and not Nitro shall be liable to Customer for any such terms and conditions contained therein), the terms and conditions of these Terms of Service govern as between Customer and Nitro Customer's its Beneficiaries and Users use and Nitro's provision of the Services. Customer expressly acknowledges and agrees that Nitro, Authorized Resellers, suppliers, licensors and/or each of the forgoing’s respective their agents and contractors may transfer Customer Data amongst themselves as necessary for the purpose of the provision and management of the Services;
(b) an Authorized Reseller may charge, bill, and collect fees from Customer in the amounts stated in and in accordance with the Authorized Reseller Agreement and, if Customer is billed by an Authorized Reseller for some or all of the fees associated with the Services, Customer shall pay the Authorized Reseller in accordance with the Authorized Reseller Agreement;
(c) if Nitro receives notice from such Authorized Reseller that it has terminated or suspended its relationship with Customer, Nitro may suspend and/or terminate Customer's right to access and use the Services, the Implementation and Activation Services and/or these Terms of Service without notice and without any liability to Customer. In addition, Nitro may suspend and/or terminate the Services and/or this Agreement without notice and without liability upon receipt of notice from Authorized Reseller that Customer has failed to pay amounts due for the Services, the Implementation and Activation Services, or is otherwise is in default to the Authorized Reseller and/or Nitro with respect to any manner pertaining to the Services, the Implementation and Activation Services, this Agreement or the terms and conditions of the Authorized Reseller Agreement.
[END OF TERMS OF SERVICE]