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+

+ NX POWERPACK END USER LICENSE AGREEMENT +

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+ Last Updated: September 18th, 2024 +

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+ This Nx End User License Agreement (together with your associated + Order Information, the “Agreement”) governs your use of our Nx + Powerpack, a suite of paid extensions for Nx (the “Software”). To + make this Agreement easier to read, the terms “Nx,” “we,” and “us” + refers to Narwhal Technologies, Inc., and the term “you” refers to + you and any organization that you are acting on behalf of in signing + up for a subscription to the Software. If you are an individual + acting on behalf of an entity, you represent and warrant that you + have the authority to enter into this Agreement on behalf of that + entity and to legally bind that entity. If you do not accept the + terms of this Agreement, then you must not use the Software. +

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+ 1. DEFINITIONS. +

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+ (a) “Licensed Volume” means the limits, volume or other + conditions of permitted use for the Software as set forth in the + Order Information, including any limits on the number of + Authorized Users or number of workspaces. +
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+ (b) “Nx IP” means the Software, algorithms, technology, + databases, tools, know-how or processes used to provide or + deliver the Software or any related services, and its + documentation (“Documentation”), all improvements, modifications + or derivative works of the foregoing (regardless of authorship), + and all intellectual property rights (“IPR”) in any of the + foregoing. +
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+ (c) “Order Information” means (i) certain terms associated with + your subscription to Use the Software, as communicated to you + via our pricing page available at + https://cloud.nx.app/powerpack/purchase (“Pricing Page”) , as + may be updated from time to time or (ii) as otherwise set forth + in a written order form or purchase order signed by you and Nx + (“PO”). +
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+

+ 2. LICENSE. +

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+ (a) License. Subject to the terms and conditions of this + Agreement (including receipt of the License Key), Nx hereby + grants you a worldwide, non-exclusive, non-transferable (except + in compliance with Section 12), non-sublicensable license to + download and install the Software on premises owned or + controlled by you, and run the Software solely for your internal + business purposes (the “Purpose”) during the Term in accordance + with the Documentation and subject to the Licensed Volume. You + have the right to permit your employees or contributors + (“Authorized Users”) to use the Software on your behalf for the + Purpose in accordance with this Agreement; provided, however, + that you will remain fully and directly liable to Nx for any and + all use of the Software by Authorized Users as if such use was + by you yourself under this Agreement. Nothing in this Agreement + will operate to grant you any right, title or interest, whether + by implication, estoppel or otherwise, in or to the Nx IP, other + than as expressly set forth herein. As between Nx and you, Nx + will exclusively own all right, title and interest in and to the + Nx IP. +
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+ (b) Use Restrictions. You will not at any time, directly or + indirectly, and will not permit any person or entity + (collectively, “Person”) (including, without limitation, your + Authorized Users) to: (i) copy, modify or create derivative + works of the Software or Documentation, in whole or in part; + (ii) reverse engineer, disassemble, decompile, decode or + otherwise attempt to derive or gain improper access to any + software component of the Software, in whole or in part; (iii) + frame, mirror, sell, resell, rent or lease the use of the + Software, License Key or Documentation to any other Person, or + otherwise use or allow any Person to use the Software, License + Key or Documentation for any purpose other than for your benefit + for the Purpose in accordance with this Agreement; (iv) create + any script or other automated tool that attempts to create + multiple License Keys; (v) use the Software or License Key in + any infringing or unlawful manner; or (vi) use the Software, + Documentation or any other Confidential Information of Nx for + competitive analysis or benchmarking purposes, or to otherwise + develop, commercialize, license or sell any product, service or + technology that could, directly or indirectly, compete with the + Nx IP. +
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+ (c) Authorized Equipment. You will bear the sole responsibility + for obtaining and maintaining the hardware and any computer + systems, networks, telecommunications systems, Internet access, + third party services or any other materials required to meet the + minimum technical and operational requirements required to + operate the Software. +
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+

+ 3. LICENSE KEY; FEES AND PAYMENT. +

+ To use the Software, you are required to purchase a license key via + the Pricing Page or PO (“License Key”). You are liable for any + actions or inactions performed under your License Key. You will pay + Nx all fees set forth in your Order Information (“Fees”) on the + payment dates specified in your Order Information. All Fees are + non-refundable. Nx reserves the right to change the Fees and + Licensed Volume and to institute new Fees and revised limits of the + Licensed Volume upon 30 days’ prior notice to you. Unless otherwise + specified in the Order Information, Fees will be paid by the + approved credit card that you designate when you sign up to use the + Software. You hereby authorize us to initiate all payment + transactions for Fees from your approved credit card when such Fees + are due, if applicable. Any and all Fees that are not paid to Nx + when due will accrue interest at a rate of 1.5% per month, or the + maximum rate permitted by law, whichever is greater. In the event of + a conflict between this Agreement and the Order Information, the + Order Information will control and govern. All Fees do not include + any sales, use, value added or other applicable taxes, payment of + which will be your sole responsibility (excluding any taxes based on + Nx’s net income). +

+ 4. CONFIDENTIAL INFORMATION. +

+ “Confidential Information” means any information that one party (the + “Disclosing Party”) provides to the other party (the “Receiving + Party”) in connection with this Agreement, whether orally or in + writing, that is designated as confidential or that reasonably + should be considered to be confidential given the nature of the + information and/or the circumstances of disclosure. Confidential + Information will not include any information that: (i) is or becomes + generally known to the public through no fault or breach of this + Agreement by the Receiving Party; (ii) is rightfully known by the + Receiving Party at the time of disclosure without an obligation of + confidentiality; (iii) is independently developed by the Receiving + Party without access to or use of any Confidential Information of + the Disclosing Party that can be evidenced in writing; or (iv) is + rightfully obtained by the Receiving Party from a third-party + without restriction on use or disclosure. For clarity, the Software + and the Documentation will be deemed Confidential Information of Nx. + The Receiving Party will not use or disclose any Confidential + Information of the Disclosing Party except as necessary to perform + its obligations or exercise its rights under this Agreement. The + Receiving Party may disclose Confidential Information of the + Disclosing Party only: (A) to those of its employees, contractors, + agents and advisors who have a bona fide need to know such + Confidential Information to perform under this Agreement and who are + bound by written agreements with use and nondisclosure restrictions + at least as protective of the Confidential Information as those set + forth in this Agreement, or (B) as such disclosure may be required + by the order or requirement of a court, administrative agency or + other governmental body, subject to the Receiving Party providing to + the Disclosing Party reasonable written notice to allow the + Disclosing Party to seek a protective order or otherwise contest the + disclosure. +

+ 5. POLICIES; SUPPORT. +

+ You hereby acknowledge that you have reviewed and agreed to the Nx + Privacy Policy at https://cloud.nx.app/privacy. Such policy is + hereby incorporated into and is hereby deemed a part of this + Agreement, binding upon you and you Authorized Users with respect to + your and their use of the Software in connection with this + Agreement. As part of your subscription to the Software, Nx will + provide reasonable support in connection with the Software in + accordance with the support terms set forth in your Order + Information. +

+ 6. FEEDBACK. +

+ From time-to-time you or your Authorized Users may provide Nx with + feedback with regard to the Software. You, on behalf of yourself and + your Authorized Users, hereby grant Nx a perpetual, irrevocable, + royalty-free and fully-paid up license to use and exploit all such + feedback in connection with Nx’s business purposes. +

+ 7. INDEMNIFICATION. +

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+ (a) Nx Indemnification. Nx will defend and pay all damages + finally awarded against you pursuant to a final, valid and + binding judgment or order, or a final settlement agreement with + respect to any claim, suit or proceeding brought by a third + party against you arising from the Software’s infringement of + such third-party’s IPR. The foregoing obligation will not apply + if the underlying third-party claim arises from (i) your breach + of this Agreement, negligence, willful misconduct or fraud; (ii) + modifications to the Software by anyone other than Nx; or (iii) + combinations of the Software of with software, data or materials + not provided by Nx. If Nx reasonably believes the Software (or + any component) could infringe any third party’s IPR, Nx may, at + its sole option and expense: (A) procure the right for you to + continue using the Software (or any infringing component) to + make it non-infringing without materially reducing its + functionality; or (B) replace the Software (or any infringing + component) with a non-infringing alternative that is + functionally equivalent in all material respects. If the + foregoing remedies are not available to Nx on commercially + reasonable terms, then Nx may terminate your use of the Software + upon notice to you. +
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+ (b) Your Indemnification. You will defend and pay all damages + finally awarded against Nx pursuant to a final, valid and + binding judgment or order or a final settlement agreement with + respect to any claim, suit or proceeding brought by a third + party against Nx arising from any breach of the restrictions set + forth in Section 2(b). +
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+ (c) Indemnification Procedures. The party seeking defense and + indemnity (the “Indemnified Party”) will promptly notify the + other party (the “Indemnifying Party”) of any and all such + claims and will reasonably cooperate with the Indemnifying Party + with the defense and/or settlement thereof. The Indemnifying + Party will have the sole right to conduct the defense of any + claim for which the Indemnifying Party is responsible hereunder + (provided that the Indemnifying Party may not settle any claim + without the Indemnified Party’s prior written approval unless + the settlement unconditionally releases the Indemnified Party + from all liability, does not require any admission by the + Indemnified Party, and does not place restrictions upon the + Indemnified Party’s business). The Indemnified Party may + participate in the defense or settlement of any such claim at + its own expense and with its own choice of counsel or, if the + Indemnifying Party refuses to fulfill its obligation of defense, + the Indemnified Party may defend itself and seek reimbursement + from the Indemnifying Party. +
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+

+ 8. DISCLAIMERS. +

+ THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND NX MAKES NO + WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO + ANY OTHER PERSON REGARDING THE SOFTWARE. TO THE MAXIMUM EXTENT + PERMITTED BY APPLICABLE LAW, NX HEREBY DISCLAIMS (a) ALL WARRANTIES + AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED AND (b) ANY WARRANTY + THAT USE OF THE SOFTWARE WILL BE ERROR-FREE. +

+ 9. LIMITATIONS OF LIABILITY. +

+ EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, + IN NO EVENT WILL (a) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR + ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL + DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS + INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC + LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER + SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, + TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND + WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF + SUCH LOSS OR DAMAGE AND (b) NX’S TOTAL LIABILITY TO YOU, YOUR + AUTHORIZED USERS OR ANY OTHER PERSON IN CONNECTION WITH THIS + AGREEMENT OR THE PROVISION OF THE SOFTWARE EXCEED THE FEES ACTUALLY + PAID BY YOU TO NX IN THE 12 MONTH PERIOD PRECEDING THE ACTION GIVING + RISE TO SUCH LIABILITY. +

+ 10. TERM AND TERMINATION. +

+
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+ (a) Term; Termination. The term of this Agreement will begin on + the effective date in the Order Information, and will expire at + the end of the initial term specified in the Order Information + (the “Initial Term”). Following the Initial Term, this Agreement + will automatically renew for successive one-month terms (the + Initial Term, together with any renewal term, the “Term”), + unless Nx or you provides the other with at least twenty (20) + days’ written notice of its intent not to renew prior to the end + of the then-current term. Either party may terminate this + Agreement, effective on written notice to the other party, if + the other party materially breaches this Agreement, and such + breach: (A) is incapable of cure; or (B) being capable of cure, + remains uncured thirty (30) days after the non-breaching party + provides the breaching party with written notice of such breach. +
+
+ (b) Effect of Termination; Survival. Upon termination of this + Agreement, your right to use the Software will immediately + terminate and you shall cease using the Software, including for + example, by permanently removing the Software dependency. This + Section 10(b) and Sections 2(b), 3, 4, 5 (first sentence), 6 – 9 + and 12 survive any termination of this Agreement. +
+
+

+ 11. TRADEMARKS. +

+ You hereby grant Nx a limited, non-exclusive, royalty-free license + to use and display your name, designated trademarks and associated + logos (“Your Marks”) during the Term in connection with Nx’s + marketing and promotional efforts for its products and services, + including by publicly naming you as a customer of Nx. Nx will + conform to and observe the trademark standards as you prescribe from + time to time. All goodwill generated by Nx’s use of Your Marks + inures to your benefit. +

+ 12. MISCELLANEOUS. +

+ This Agreement, together with the Order Information, is the complete + and exclusive agreement between the parties with respect to its + subject matter and supersedes all prior or contemporaneous + agreements, communications and understandings, both written and + oral, with respect to its subject matter, including any prior terms. + This Agreement may be amended or modified only by a written document + assented by duly authorized representatives of the parties. Nx may + perform an audit of your use of the Software once per year in + connection with your compliance with this Agreement, including if + you are exceeding the Licensed Volume. Nx may provide notices to you + by posting them on our website, by providing electronic notification + via the Software, or by email to the address associated with your + account. You may provide notices to us via email at + powerpack-support@nrwl.io. All notices are effective upon posting or + when delivered. Except as otherwise set forth herein, either party’s + failure to enforce any provision of this Agreement will not + constitute a waiver of future enforcement of that or any other + provision. No waiver of any provision of this Agreement will be + effective unless it is in writing and signed by the party granting + the waiver. If any provision of this Agreement is held invalid, + illegal or unenforceable, that provision will be enforced to the + maximum extent permitted by law, and the remaining provisions of + this Agreement will remain in full force and effect. This Agreement + will be governed by and construed in accordance with the laws of the + State of California without giving effect to any principles of + conflict of laws that would lead to the application of the laws of + another jurisdiction. Any legal action or proceeding arising under + this Agreement will be brought exclusively in the federal or state + courts located in the Northern District of California and the + parties irrevocably consent to the personal jurisdiction and venue + therein. Nx may freely assign its rights and obligations under this + Agreement. You may not assign or transfer this Agreement, by + operation of law or otherwise, without Nx’s prior written consent; + provided, however, that you may assign your rights or delegate your + obligations, in whole or in part, without such consent, to (i) one + or more of your affiliates, or (ii) a third party that succeeds to + all or substantially all of your business and assets relating to the + subject matter of this Agreement, whether by sale, merger, operation + of law or otherwise. Any attempt to assign or transfer this + Agreement without such consent will be void. Subject to the + foregoing, this Agreement is binding upon and will inure to the + benefit of each of the parties and their respective successors and + permitted assigns. Unless otherwise expressly provided, no + provisions of this Agreement are intended or will be construed to + confer upon or give to any person or entity, other than the parties, + any rights, remedies or other benefits under or by reason of this + Agreement. +
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