NI Multisim Live Services Terms and Conditions of Use
(NI Hosted Services)
1. Definitions. As used in this Agreement, the following capitalized terms have the meanings given below:
“Data Protection Laws” means applicable data protection and privacy laws of any country, including but not limited to the EU Data Protection Laws and the California Consumer Protection Act.
“Documentation” means the user guides, quick reference guides, other technical and operations manuals and specifications for the NI Hosted Services located at: users.niwsc.com/legal, or the NI Hosted Services User Portal, or such other address specified by NI. Documentation may be updated by NI from time to time without previous notification.
“Effective Date” means the date you activate Your NI Hosted Services by creating your Service Account.
“High Risk Activities” means life or safety critical systems, hazardous environments or any other environments requiring fail-safe performance, or any activities in which failure of the Services could lead to death, personal injury, severe property damage or environmental harm.
“Mark” means the trade name, trademarks, service marks or other indicia of origin of a party.
“NI Contractor” means any third-party service provider which NI may engage at any time to provide or make available web hosting, infrastructure, platform, software, data processing, data storage or other services or facilities to or for use by NI to enable or facilitate NI’s provision of the Services or any portion of the Services.
"NI Hosted Services User Portal" means the area(s) of the NI Site where NI Hosted Services may be registered for, accessed, and used.
“NI Site” means the NI web sites located at ni.com, multisim.com, and any successor or alias thereto designated by NI.
“NI Hosted Services” means web-hosted services that NI makes available during the term of this Agreement for which You register through the NI Hosted Services User Portal. Each Service is more specifically described in the applicable Service Description.
“Personal Data” means any information that alone or together with any other information relates to an identified or identifiable natural person (”Data Subject”), or is otherwise defined as “personal data” or “personal information” under applicable Data Protection Laws; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Service Account” means Your user account created through the NI Hosted Services User Portal.
“Service Description” means the description of the features, functions, pricing, limitations, restrictions (including acceptable use policies and the Service Terms for specific Services), privacy or any other documents, associated with a Service and posted on the NI Hosted Services User Portal, or incorporated or referenced in the quote. Service Descriptions may be updated by NI from time to time without further notification.
“NI Hosted Services For Free” or “Free Subscription” means the NI Hosted Services for which NI does not charge a fee, including any NI Hosted Services that are made available to You for evaluation purposes and any NI Hosted Services that are identified by NI as being beta or trial services or as being Free Subscription
“NI Hosted Services Service Level Agreement (SLA)” means any applicable service level agreement that NI offers with respect to the NI Hosted Services and posts on the NI Hosted Services User Portal. SLAs may be updated by NI from time to time without notification. The SLAs that NI offers with respect to the NI Hosted Services are located here or any successor or alias thereto designated by NI.
“Service Term” means the period for which You are entitled to receive, and obligated to pay for, the Services, included in Your order.
“Software” means any computer software and other code, together with any accompanying documentation and utilities, provided by NI in connection with the NI Hosted Services. Software includes software locally installed on your systems in addition to software accessed through the internet or by other remote means including websites, portals, and cloud-based solutions to utilize an NI Hosted Service in accordance with this Agreement. Software shall be considered a part of the NI Hosted Services provided hereunder. Software does not include certain third party software that NI provides to You but that is subject to separate license terms either presented at the time of installation, provided as an addendum to this Agreement as set forth at https://users.niwsc.com/legal/ or another NI Site, or otherwise provided with the Software.
“SSP” means Standard Support Program, under which NI provides certain technical support services as described here or another NI Site.
"Third Party Content" means any third-party software, applications, libraries, data, and other content of a third party, including an NI Contractor, that may be made available as part of the NI Hosted Services.
“You” or “Your” means solely the company or individual natural person who created the Service Account through the NI Hosted Services User Portal.
“Your Content” means any, information, data (including Personal Data), text, images, audio, video, third party applications or other third-party software or any other content, in any format, that You (a) transmit to the NI Hosted Services User Portal pursuant to this Agreement or (b) develop and/or use in connection with the NI Hosted Services. In no event, however, shall the term “Your Content” include any software, code, documentation, media elements or other content provided or made available by NI or a NI Contractor.
2. NI Hosted Services.
2.1.1. Subject to the terms of this Agreement, NI hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable right, under NI’s intellectual property rights in the NI Hosted Services, to access and use the NI Hosted Services, including Software, solely as necessary for Your internal business purposes during the Service Term.
2.1.2. Notwithstanding the provisions set forth in Section 2.1.1, if any Software provided by NI in connection with the NI Hosted Services is accompanied by a separate software license agreement, then Your use of such Software shall be in accordance with the license agreement accompanying the Software.
2.1.3. If You use the NI Hosted Services in the scope of Your employment, You may use the NI Hosted Services solely as necessary for Your employer’s internal business purpose; Your employer is bound by the obligations, representations, and warranties of You in this Agreement; and You represent and warrant that You have the right and authority to bind Your employer to this Agreement and/or use the Services on its behalf according to this Agreement.
2.2 Limitations; Implementation.
2.2.1. NI may change, update, discontinue, or deprecate any of the Services, or the features or functionality of any of the NI Hosted Services, from time to time.
2.2.2. If NI Hosted Services are discontinued or terminated for convenience by NI, NI will refund You the portion of any fees You paid in advance for the remainder of Your then-current Service Term.
2.2.3. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the NI Hosted Services; try to gain unauthorized access to any NI Hosted Services, data, account, or network by any means; or use the NI Hosted Services in any manner that may interfere with the use of the NI Hosted Services or similar services by others who are entitled to use the NI Hosted Services or similar services.
2.2.4. You may not falsify any protocol or email header information (e.g., “spoofing”), or compile or use, the NI Hosted Services, or cause or permit others to, (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking or availability testing of the Services; (c) perform or disclose any performance or vulnerability testing of the Services without NI´s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Services; (d) use the Services to perform cyber currency or crypto currency mining ; (e) reverse engineer or access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use the Services for High Risk Activities.
2.2.5. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right, or any legal or regulatory notice or link, appearing on or contained within the NI Hosted Services.
2.26. You may not copy or distribute the Software.
2.2.7. You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any Software.
2.2.8. You may not disassemble or decompile the Software.
2.2.9. You may not use Software, media elements, fonts, or Documentation provided or made available by NI or any NI Contractor in connection with the NI Hosted Services, other than as part of normal use of the NI Hosted Services as permitted by this Agreement.
2.2.10. You may not use any Software in any manner that requires that the Software be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients.
2.2.11. You must comply with any technical limitations in the Services, and/or in any Software, that only allow You to use them in certain ways, and You may not work around any technical limitations in the Services or Software.
2.2.12. You may not permit any third party to use the NI Hosted Services. However, you may permit an individual who has his or her own Service Account for the NI Hosted Services to access Your Content in the NI Hosted Services, but only if the individual agrees to access Your Content in the NI Hosted Services solely for your benefit, in accordance with the terms of this Agreement. In such case, you agree to remain liable to NI for any breach by such third party of the terms of this Agreement.
2.2.13. You may not use the Services in any way that would violate applicable privacy laws or infringe privacy rights of others. NI Hosted Services are not designed or intended to be used for processing Personal Data, and You are advised not to transmit or load Personal Data into the NI Hosted Services User Portal.
2.3. Your Service Account. You may not allow multiple individuals to share or access one Service Account.
2.3.1. Your Password and Token. When You complete the Service Account creation process, You will need to enter the password of your choice. In order to allow Your NI Hardware and Software to access the NI Hosted Services, You can download an authentication token from the NI Hosted Services and place it in the NI Software.
2.3.2. Security of Password and Token. You are responsible for maintaining the secrecy and security of Your password and token. Your password and token are for Your internal use only. You may not sell, transfer, or sublicense Your password or token to any other party. Except to the extent caused by NI’s breach of its obligations under Section 3.1 or the gross negligence or willful misconduct of NI, You are responsible for all activities that occur under Your password and token, regardless of whether such activities are undertaken by agents and subcontractors or any other third party.
2.3.3. You must notify NI immediately in writing if You believe any misuse or misappropriation of Your password keys or token is occurring, or Your password key and token is otherwise lost, stolen, or compromised, or if You believe that there may have been any security incidents or any misuse or unauthorized access of your Services Account.
2.4 NI Hosted Services for Free: Any NI Hosted Services Provided by NI for free will be subject to these NI Hosted Services Terms, including the exceptions set forth herein, including but not limited to the one mentioned in Section 2.2.1. Please review https://www.multisim.com/pricing/ for specific entitlements for the Free Subscription.
3. Security and Backup.
3.1. Security. NI will use commercially reasonable efforts to establish and maintain administrative, technical, and physical safeguards for the NI Hosted Services that are designed to (a) protect the security and integrity of the Services, (b) guard against anticipated threats or hazards to the security and integrity of the Services, and (c) protect against the accidental or unauthorized access, use, alteration, or disclosure of Your Content.
3.2. Other Security and Backup. NI is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data that You submit or use in connection with Your Service Account or the NI Hosted Services (including as a result of Your errors, acts or omissions). You should regularly back up Your Content.
3.3. You are responsible for (a) any required notices, consents and/or authorizations related to Your provision of, and our processing of, Your Content as part of the Services, (b) any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content, (c) any use by You or Your Users of the Services in a manner that is inconsistent with the terms of this Agreement, and (d) assuming the consequences of any disclosure of your Content to any third party.
3.4. Access. NI will not disclose any of Your Content, except: (a) if You expressly authorize NI to do so in connection with Your use of the NI Hosted Services; or (b) as necessary to provide the NI Hosted Services, or to comply with this Agreement or an agreement with an NI Contractor or the request of a governmental or regulatory body, subpoenas, or court orders. If NI receives a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of Your Content, NI will give You reasonable notice to allow You to seek a protective order or other appropriate remedy (except to the extent NI’s compliance with the foregoing would cause it to violate a court order or other legal requirement).
4. Service Availability.
4.1. Service Availability; SLAs. NI will make the NI Hosted Services available consistent with the applicable SLA. NI may change the existing SLAs or add SLAs for other NI Hosted Services from time to time. Except as expressly set forth in an applicable SLA (if any), NI makes no commitment regarding efforts to maintain any "uptime" or availability level, or regarding credits for "downtime" or unavailability of any NI Hosted Services.
4.2. Service Interruptions. The NI Hosted Services may be unavailable at certain times, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the NI Hosted Services as a result of system failures or force majeure events described in Section 11.6 (collectively, “NI Hosted Service Interruptions”). NI will use commercially reasonable efforts, circumstances permitting, to provide information regarding any NI Hosted Service Interruption and the restoration of use and access to the NI Hosted Services following the Service Interruption, including by information sent to Your email address. The SLA (if any) for the NI Hosted Service will describe whether you receive any service credits for an interruption of that Service.
4.3. Service Suspensions. NI may suspend Your access to any portion or all of the NI Hosted Services if NI reasonably determines that: (a) there is a threat or attack on the NI Hosted Services (including a denial of service attack) or other event that may create a risk to the NI Hosted Services, You or any other NI customer (in which case the suspension shall be only for such period as NI may reasonably determine in light of the circumstances); (b) Your use of the NI Hosted Services (i) disrupts, or poses a security risk to, the NI Hosted Services or any other NI customer, (ii) may harm NI’s systems or the systems of any other NI customer, or (iii) may subject NI or any third party to liability; (c) You are using the NI Hosted Services for fraudulent or illegal activities; (d) subject to applicable law, You have ceased to continue 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; (e) You are using the NI Hosted Services in breach of this Agreement; (f) You are in default of payment obligations related to the NI Hosted Services; (g) there is an unusual spike or increase in Your use of the NI Hosted Services (collectively, "Service Suspensions"); or (h) at NI’s sole discretion for those NI Hosted Services for Free. NI will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to You (including notices sent to Your email address) and to provide updates regarding resumption of the NI Hosted Services following any Service Suspension. You agree that NI will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension and You will not be entitled to service credits or refunds under the SLAs for any Service Suspension.
5. Intellectual Property; Proprietary Rights.
5.1. Reservation of Rights by NI. Other than the limited use and access rights and licenses expressly set forth in this Agreement, NI reserves all right, title and interest (including all intellectual property and proprietary rights) in and to: (a) the NI Hosted Services; (b) NI’s Marks; and (c) any other technology and software that NI provides or uses to provide the NI Hosted Services. You do not, by virtue of this Agreement, acquire any ownership interest or rights in the foregoing, except for the limited use and access rights described in this Agreement.
5.2. Reservation of Rights by You. NI does not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in Your Content. Except to the extent permitted by applicable law, in the absence of an express license or other grant, NI will not use Your Content without Your prior written consent.
5.3. Non-exclusive Rights. The use rights granted by NI in this Agreement with respect to the NI Hosted Services are nonexclusive, and NI reserves the right to (a) act as a developer of products or services similar to any of the products that the You may develop in connection with the Your use of the NI Hosted Services; and (b) appoint third parties as developers or systems integrators who may offer products or services which compete with the You. NI agrees to not resell, distribute, or otherwise commercially exploit Your Content without Your prior written consent. You may not resell, distribute, or otherwise commercially exploit the NI Hosted Services or NI’s Marks.
5.4. Feedback. In the event You elect, in connection with any of the NI Hosted Services, to communicate to NI suggestions for improvements to the NI Hosted Services ("Feedback"), NI will own all right, title, and interest in and to the same, even if You designated the Feedback as confidential, and NI will be entitled to use and disclose the Feedback without restriction.
5.5. Non-Assertion. During the term of the Agreement, You will not assert, nor will You authorize or assist any third party to assert, against NI, its affiliates or any of their respective customers, vendors, business partners, or licensors, any patent infringement claim with respect to any NI Hosted Services.
6. Representations, Warranties, Disclaimers.
6.1.1. Each party represents and warrants to the other that (a) it has full power and authority to enter in and perform this Agreement, (b) the execution and delivery of this Agreement has been duly authorized, (c) its performance hereunder does not breach any other agreement to which it is bound.
6.1.2. You warrant and represent that Your Content does not consist of or contain (a) any export controlled technology or technical data identified on any U.S. export control list or other applicable export control lists, including but not limited to the U.S. International Traffic in Arms Regulations, U.S. Export Administration Regulations, and so forth, (b) any obscene, scandalous or illegal content, (c) any viruses, worms, trojan horses or other malware or malicious code, including any instructions, code, commands or vulnerabilities designed or likely to cause damage to, or enable or facilitate unauthorized access to, software, data, or files, or (d) anything that infringes upon or misappropriates any third party’s intellectual property rights or other rights (including but not limited to rights to privacy and the protection of personal data).
6.1.3 You warrant and represent that You are not ineligible or otherwise restricted by U.S. or applicable law to use the NI Hosted Services. Your Content will not be uploaded from a location or a person located in (or on behalf of anyone located in) any of the current U.S. Economic Trade Embargoed/Sanctioned countries.
6.1.4 All representations and warranties made by You shall be deemed first made as of the Effective Date (and as an inducement to NI enter this Agreement and provide the Services), and they shall run continuously thereafter. Should any of the representations and warranties become untrue at any time, You must immediately notify NI. NI reserves the right to restrict your use of the Service if NI believes that such use may violate U.S. or other applicable export control laws.
7. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES.
7.1.1. THE NI HOSTED SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY NI OR ITS LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED "AS IS" WITH ALL FAULTS (KNOWN AND UNKNOWN). NI AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE NI HOSTED SERVICES. NI AND ITS LICENSORS DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NI AND ITS LICENSORS DO NOT WARRANT THAT THE NI HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, THAT NI WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. NI AND ITS LICENSORS DO NOT WARRANT THAT YOUR CONTENT STORED WITHIN OR TRANSMITTED TO THE NI HOSTED SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. NI AND ITS LICENSORS WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM NI, ITS AFFILIATES OR FROM ANY THIRD PARTY OR THROUGH THE NI HOSTED SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. NI IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. NI HOSTED SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK ACTIVITIES.
7.1.2. You acknowledge and agree that: (a) You have no expectation and have received no assurances that Your business relationship with NI or its affiliates will continue beyond the term (or its earlier termination), that any investment by You in Your Content will be recovered or recouped, or that You will obtain any anticipated amount of profits; and (b) You will not have or acquire by virtue of this Agreement or otherwise any vested, proprietary or other right in the promotion of any services provided by NI or its affiliates.
7.2. Limitations of Liability. EXCEPT FOR BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND GROSSLY NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, NEITHER PARTY NOR ANY OF THEIR RESPECTIVE LICENSORS, AGENTS AND CONTRACTORS WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE NI HOSTED SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; OR (D) ANY THIRD PARTY CONTENT. IN ANY CASE, EXCEPT FOR OBLIGATIONS UNDER SECTION 8.1 AND 8.2, BREACH OF ANY NDA ENTERED INTO IN CONNECTION WITH THE NI HOSTED SERVICES OR BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND GROSSLY NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL EXCEED THE AMOUNTS PAYABLE OR PAID BY YOU TO NI FOR YOUR USE OF THE NI HOSTED SERVICES DURING THE TWELVE (12) MONTHS PRECEEDING THE CLAIM. NOTHING IN THIS SECTION 7.2 WILL LIMIT YOUR OBLIGATION TO PAY NI FOR YOUR USE OF THE NI HOSTED SERVICES.
7.3 LIMITATION PERIOD. NI SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM AND/OR CONCERNING THIS AGREEMENT AND/OR ITS SUBJECT MATTER BROUGHT MORE THAN TWO YEARS AFTER THE OCCURRENCE CAUSING THE LOSS AND/OR DAMAGE GIVING RISE TO SUCH CLAIM (REGARDLESS OF WHETHER SUCH OCCURRENCE WAS DISCOVERABLE AT THE TIME).
7.4. Remedy. If any portion of the NI Hosted Services is, or in NI’s opinion is likely to be, held to constitute an infringement or infringing item, NI may at its election and expense either: (a) replace the alleged infringing portion with a non-infringing equivalent; (b) modify the alleged infringing portion to make it non-infringing; or (c) immediately terminate the NI Hosted Services or this Agreement without liability. SECTIONS 8.2 AND 8.3 CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDIES AND NI’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM THAT THE NI HOSTED SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE THE RIGHTS OF ANY THIRD PARTY. NI shall have no obligation under this Section 8.2. with respect to any NI Hosted Service For Free.
8.1. Indemnification of NI. You agree to indemnify, defend and hold NI, its affiliates and licensors, and each of their respective employees, officers, directors, agents and representatives, harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney’s fees), whether commenced or threatened (collectively, “Losses”), arising out of or related to any of the following: Your use of the NI Hosted Services in a manner not authorized or contemplated by this Agreement, or any third-party claim alleging that Your use of the NI Hosted Services is in violation of applicable law or infringes, misappropriates, or violates any third-party rights.
9. Term; Termination.
9.1. Term. The term of this Agreement will commence on the Effective Date and will continue until the expiration of the Services you paid for (if applicable) or termination in accordance with this Agreement or any applicable regulation.
9.2. Termination for Convenience. NI may terminate this Agreement without cause upon sixty (60) days prior written notice to You. For NI Hosted Services for Free, NI may terminate without cause upon thirty (30) days prior written notice to You.
9.3. Termination for Cause.
9.3.1. By Either Party. Either party may terminate this Agreement upon thirty (30) days prior written notice for any material default or breach of this Agreement by the other party (including any breach or default resulting in a Service Suspension) unless the defaulting party has cured such failure or default within such thirty (30)-day period.
9.3.2. By NI. NI may terminate this Agreement immediately if NI determines, at its sole discretion that: (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) You are using the NI Hosted Services in breach of this Agreement, including but not limited to section 2.2.4; or (c) NI’s continued provision of any of the NI Hosted Services to You is prohibited by applicable law.
9.4. Effect of Termination. Upon termination of this Agreement for any reason: (a) You will remain liable for all undisputed fees, charges and any other payment obligations that have been incurred through the date of termination with respect to the NI Hosted Services; and (b) all license, or other rights granted to either party under this Agreement will immediately terminate. Upon expiration or termination of the NI Hosted Services NI will retain Your Content and make it available to You, in a manner determined by NI as a Free Subscription. In addition to any payment obligations arising prior to termination, the following provisions will survive any termination of this Agreement or the expiration or termination of the Term: Section 1, the last sentence of Section 5.2, and Sections 6, 7, 8, 9.4., and 10.
10. Data Privacy.
10.1 You hereby agree that the NI Hosted Services may collect and communicate certain software, hardware, and use information (which may in some circumstances include certain personal data of users, including names or email address) to NI, its Affiliates or its service providers’ servers for the purposes of (i) checking for and performing any updates; (ii) ensuring that You have complied and are complying with the terms and conditions of this Agreement; (iii) NI’s internal product development; and (iv) providing usage reporting to You. The information collected and communicated does not include any proprietary application data. NI will not provide any of the information to any third party except as required by law or legal process or to enforce compliance with the terms in this Agreement. Information collected by the NI Hosted Services as set forth in this section is not considered part of Your Content.
10.2 International Transfers. NI may transfer your Personal Information among NI subsidiaries and/or to its authorized distributors and business partners, if required for the purposes described in this Agreement (including NI providing the Services set forth in this Agreement). This may involve the transfer of your Personal Information to countries outside your home country or region, including outside the European Economic Area if that is your region, which may have a different level of data protection from your home country. Such countries may include, without limitation, the United States and other countries in which NI or its subsidiaries or its authorized distributors and business partners maintain facilities. In order to provide adequate protection for the transfer of your Personal Information, NI transfers Personal Information by entering into written contractual arrangements (as appropriate) with it subsidiaries, authorized distributors and business partners in respect of such transfers or by relying on other legally-approved transfer mechanisms. NI takes all reasonable technical and organizational measures to safeguard Personal Information it transfers.
11.1. Export Compliance. In addition to Your warranties and representations in Articles 8.1.2 and 8.1.3, You agree to comply with all applicable export and re-export control laws and regulations, including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the U.S. Office of Foreign Assets Control, and other applicable nation country export control regulations in connection with this Agreement. Without limiting the foregoing, NI is responsible for compliance related to its provision of the NI Hosted Services to You, and You are responsible for compliance related to its provision of any of Your Content. You acknowledge that the NI Hosted Services are designed with capabilities that allow You to access the Services without regard to geographic location and to transfer or otherwise move Your Content between the Services and other locations. You are solely responsible for the authorization and management your Service Account across geographic locations, as well as complying with restrictions related to personal data, export control and geographic transfer of Your Content.
11.2. Independent Contractors. Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between You, NI, or their respective affiliates. Further, neither party will be deemed to be an agent or representative of the other by virtue of this Agreement. Neither party is authorized to, and neither party will attempt to, create, or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party. Without limiting the generality of the foregoing, neither party will enter into any contract, agreement, or other commitment, make any warranty, or guaranty, or incur any obligation or liability in the name or otherwise on behalf of the other party.
11.3. Assignment; Binding Effect. Neither party may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement or any portion of this Agreement without the prior written approval of the other party; provided, however, that either party may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without the consent of the other party by way of merger, acquisition or sale of all or substantially all of its assets to any affiliate or as part of a corporate reorganization; provided that such assignee has the necessary resources and expertise to perform the assignor’s obligations under this Agreement and agrees in writing to do so. This Agreement will be binding on and inure to the benefit of NI and You and their respective permitted successors and permitted assigns. Notwithstanding the foregoing, any NI obligation hereunder may be performed (in whole or in part), and any NI right or remedy may be exercised (in whole or in part), by an Affiliate of NI. “Affiliate” means, with respect to either party, any person, organization, or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization, or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization, or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly, the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
11.4. No Waivers. To be effective, any waiver by a party of any of its rights or the other party’s obligations under this Agreement must be made in a writing signed by the waiving party. No failure or forbearance by either party to insist upon or enforce performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise constitutes a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
11.5. Governing Law. This Agreement will be governed by the laws of the state of Texas without reference to any rules regarding conflict of laws. The parties irrevocably consent to exclusive jurisdiction and venue of the state and federal courts of located in Travis County, Texas with respect to any dispute arising from this Agreement. Notwithstanding the foregoing, NI may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of NI’s or any third party’s intellectual property or other proprietary rights. The parties expressly exclude the application of the United Nations Convention for the International Sale of Goods to this Agreement.
11.6. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God; labor disputes or other industrial disturbances; electrical or power outage; utilities or telecommunications failures; earthquake, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; or war.
11.7. Severability. If any term of this Agreement or the application thereof to any person, entity or circumstance will at any time or to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under any provision of applicable law, to the full extent the applicable law may be waived, it is hereby waived. To the extent such law cannot be waived, the invalid or unenforceable term will be replaced by a valid term which comes closest to the intentions of the parties to this Agreement. In case such replacement term cannot be agreed upon, the invalidity of the term in question will not affect the validity of any other term or this Agreement as a whole.
11.8. Entire Agreement; Amendment. The Documentation, Service Descriptions, and SLAs are incorporated into and made a part of this Agreement. This Agreement (including all documents incorporated by reference into this Agreement, together with quote, if applicable sets forth the entire understanding of the parties with respect to the subject matter of this Agreement. No modification or amendment of any of the provisions of this Agreement will be effective unless in writing and signed by the parties to this Agreement; provided, however, that You agree that NI may amend this Agreement effective on sixty (60)-day notice (which notice may be given by posting the amended Agreement at an NI Site, sending it to the email address provided in connection with the Service Account, or presenting it to You when You log on to any of the NI Hosted Services (the earliest of such events being the date on which the sixty (60)-day period begins)), but such an amendment will apply only to Your use of the NI Hosted Services from and after the effective date of the Amendment. If You do not want to be bound by the amended Agreement, You may terminate the NI Hosted Services, effective by choosing the Cancellation option in the NI Hosted Services User Portal no later than thirty (30) days after the date of NI’s notice to You described above. If You fail to give such notice to NI within such thirty (30)-day period, You shall be deemed to have accepted such amended Agreement. Any such amendment will not be understood as extending the term of this Agreement or waiving any right of NI to suspend Services or terminate this Agreement. Unless otherwise provided herein, this Agreement constitutes the complete and final agreement between NI and You with respect to the Services and supersedes any and all prior or contemporaneous oral or written agreements between them concerning the Services.