Nebula Terms of Use Agreement

Subject to the terms of this Agreement, User will be provided with access to Nebula (“Nebula”), a software platform created by KLDiscovery Ontrack LLC (“Vendor”). 

User understands that accessing Nebula does not commit either party to the performance of further services unless specifically authorized in a definitive Master Services Agreement and/or Statement of Work (“Master Services Agreement” or “Statement of Work”). Such Master Services Agreements or Statement of Works shall list the specific products, services, and related consulting in the areas of e-discovery, digital forensics, data recovery and information management that can be performed under the Master Services Agreement and/or Statement of Work solely. The Master Services Agreement and/or Statement of Work will also detail the scope and pricing commitments of the parties for future work.  In no way shall this Agreement be deemed to contract Vendor and User in the performance of any of the aforementioned Services not agreed to and defined herein. If User would like to utilize any of the aforementioned services outside of this Agreement, User and Vendor will enter into a Master Services Agreement(s) and/or Statement of Work(s) respectively.

Data transmitted to Nebula will be housed in Vendor’s secure Microsoft Azure tenant. User should not transmit data to Nebula where User does not have the appropriate legal permissions with respect to the data being stored and processed in the United States and agrees to release Vendor of any liability arising from such a transmittal. User agrees to take appropriate measures to preserve the data / media / equipment prior to providing it to Vendor.

By being provided access to Nebula, or requesting access to Nebula, User may be asked to provide certain registration details or other information. It is a condition of User’s use of Nebula that all the information User provides is correct, current, and complete. All information User provides is governed by Vendor’s Privacy Policy, as well as all actions Vendor takes with respect to User’s information, consistent with Vendor’s Privacy Policy found at https://www.kldiscovery.com/privacy-policy.

Intellectual Property

Vendor retains all and any intellectual property rights in the development, creation and content of Nebula, including all methodologies, processes and know-how used, together with any hardware, firmware, and software in Nebula (“Nebula IP”). User may not at any point assert any ownership over any Nebula IP or question the validity or enforceability of Nebula IP. Vendor may provide test data within Nebula for User to use and manipulate for testing purposes. User may submit its own data into Nebula and will retain all intellectual property rights to it but provides Vendor a perpetual, worldwide, irrevocable license to its data solely for use within Nebula. User acknowledges that any data submitted by User may become corrupted, changed and/or be deleted and waives the right to claim against Vendor in the event of such an occurrence.

Trademarks

Vendor’s name, the term “Nebula”, the Vendor’s logo, and all related names, logos, product and service names, designs and slogans are trademarks of the Vendor or its affiliates or licensors. User must not use such marks without the prior written permission of the Vendor. All other names, logos, product and service names, designs and slogans are the trademarks of their respective owners.

Confidentiality

User acknowledges that Nebula and all its features and functionality (“Confidential Information”) are the Confidential Information of Vendor. User agrees, with respect to such Confidential Information, to not disclose the Confidential Information to any third party without Vendor’s prior written consent and to: (i) use such Confidential Information only for the purposes directed by Vendor; (ii) use the same methods and degree of care to prevent disclosure of such Confidential Information as it uses to prevent disclosure of its own proprietary and Confidential Information but in no event less than reasonable care; and (iii) disclose Confidential Information to its employees only on a need-to-know basis and who have signed confidentiality agreements with User containing provisions no less stringent than required in this Agreement.

Warranties, Indemnification and Choice of Law

VENDOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE TO THE MAXIMUM EXTENT PERMITTED BY LAW. VENDOR DOES NOT WARRANT ANY PARTICULAR RESULT OR CONCLUSION, NOR THAT NEBULA WILL FUNCTION TO ANY SPECIFICATION, WILL NOT CORRUPT OR MODIFY ANY DATA SUBMITTED TO IT NOR WILL IT PERFORM ACCURATELY.

Vendor shall not be liable for: (i) any direct, indirect, special, incidental, consequential, or punitive damages; and/or (ii) loss of profits, arising from the access and/or use of Nebula, whether based on contract, tort, strict liability, warranty, or other legal theory, arising out of this Agreement, even if User has been advised of the possibility of such damages. User hereby waives all and any right to claim damages against Vendor arising from the access and/or use of Nebula unless and until such time as User and Vendor execute Master Services Agreements or Statement of Works.

FURTHERMORE, EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL VENDOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY;  WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), USE OF THE NEBULA SOFTWARE, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In providing data to Vendor, User represents that it has the lawful right to be in possession of the data and is authorized to provide it to Vendor. User further understands and agrees that the data may be damaged prior to receipt by Vendor or during the performance of Vendor’s services, and User is solely responsible for maintaining its own original copies.

User agrees to comply fully with all sanctions laws and regulations relating to the prohibition of sales of products and services to designated states or jurisdictions, individuals or companies to ensure that Nebula or other products provided by Vendor are not used by any individuals, companies or organizations or in any country or territory, that, is, or whose government is, the subject of sanctions at the time of receipt of Nebula or products, or in any other manner that could result in a violation of sanctions by any individuals or companies. By receiving Nebula, User is agreeing to the foregoing and representing and warranting it is not located in, under the control of, or a national or resident of any such country on any sanctions list or person on any sanctions list.

User agrees to defend, indemnify and hold harmless Vendor, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to Users violation of these Terms of Use or Users use of Nebula services and products other than as expressly authorized in these Terms of Use or a subsequent Master Services Agreement or Statement of Work. 

This Agreement is governed by the laws of the State of Minnesota. Each party, on behalf of itself and its Affiliates, further agrees that any legal suit, action or proceeding arising out of or relating to this Proof of Concept Agreement shall be commenced in a federal court in the District of Minnesota or in state courts with jurisdiction over Hennepin County, Minnesota, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. In the event of any controversy or claim between Vendor and User, each Party shall bear its own costs in connection therewith, except as otherwise set forth in this Agreement. 

This Agreement shall commence on the date User transmits data to Vendor and/or is granted access to Nebula and shall continue for as long as Vendor shall determine. Vendor may terminate User’s access to Nebula at any time and shall have no liability to User for such termination.