End User License Agreement

Last Updated: June 20, 2020

In connection with Thunder NSI’s delivery of certain proprietary software or products containing embedded or pre-loaded proprietary software, or both, Thunder NSI is willing to license this certain proprietary software and the accompanying documentation to you only on the condition that you accept all the terms in this End User License Agreement (“Agreement”).

This End User License Agreement (“EULA”) governs Your access and use of the software (“Software”) that is embedded on any Thunder NSI product or virtual product (“Product”). The word “Documentation” refers to any electronic or printed manuals and accompanying instructional aids licensed to you.

YOU MUST READ AND AGREE TO THE TERMS OF THIS EULA BEFORE USING, DOWNLOADING OR INSTALLING ANY SOFTWARE OR DOCUMENTATION. BY CLICKING OR SELECTING THE “I AGREE to Thunder NSI’s PRIVACY POLICY, LIMITED WARRANTY, TERMS of SERVICE, & EULA” CHECK BOX OR OTHERWISE USING, DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.

 

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST NOT SELECT THE BOX AND YOU MAY NOT USE, DOWNLOAD OR INSTALL THE SOFTWARE. INSTEAD, YOU MAY, FOR A FULL REFUND, RETURN THIS PRODUCT TO THE LOCATION WHERE YOU ACQUIRED IT OR PROVIDE WRITTEN VERIFICATION OF DELETION OF ALL COPIES OF THE SOFTWARE. ANY USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO USE ON THE PRODUCT, WILL CONSTITUTE YOUR ACCEPTANCE TO THE TERMS OF THIS AGREEMENT.

 

The term “You,” “Your,” “you” or “your” as used in this EULA, means any person or entity who accesses or uses the Software and accepts the terms of this EULA, including any individuals that You authorize to use or access the Software, including Your independent contractors or employees (“Authorized Users”). For the avoidance of doubt, where the term “You,” “Your,” “you” or “your” is used in this EULA, it shall include any Authorized User, regardless of whether “Authorized User” is specifically stated.

THE SOFTWARE MAY BE SUBJECT TO AUTOMATIC SOFTWARE UPDATES, AS DESCRIBED FURTHER IN SECTION 3, AND YOU ALSO HEREBY CONSENT TO SUCH UPDATES. If You do not agree to such updates, You are not permitted to, and You must not, download, install, access or use the Software.

Thunder NSI may, in its sole and absolute discretion, change the terms of this EULA from time to time, as indicated by the date at the end of this EULA. If You object to any such change, Your sole recourse will be to cease using the Software. Continued use of the Software following any such change will indicate Your acknowledgement of such change and agreement to be bound by the new terms and conditions.

  1. Overview, Eligibility

    1. This EULA is a binding agreement between You and Optimus Networks LLC dba Thunder NSI (“Thunder NSI”).

    2. Your use of (i) websites located at www.thundernsi.com and thundernsi.com sub-domains and any other websites hosted by Thunder NSI or its affiliates, (ii) services accessible or downloadable through the Sites, (iii) software that may be downloaded to Your computer, smartphone, or tablet to access services and (iv) subscription services, including services that can be accessed using the Web Apps and Mobile Apps is governed by the Terms of Service. Your purchase of the Product (excluding the Software) is governed by the Limited Warranty. All additional guidelines, terms, or rules on the Sites, including the Privacy Policy, are incorporated by reference into this EULA and You are agreeing to accept and abide by them by using the Software.

    3. You may access and use the Software only if You can form a binding contract with Thunder NSI and only if You are in compliance with the terms of this EULA and all applicable laws and regulations. If You are accepting the terms of this EULA on behalf of an entity or individual, You represent and warrant that You have full legal authority to bind such entity or individual to this EULA. You are fully responsible for any Authorized User’s compliance with this EULA.

  2. License.

    1. License Grant. Subject to Your compliance at all times with the terms and restrictions set forth in this EULA, Thunder NSI grants You, under its rights in and to the Software, a worldwide, personal, non-sublicensable, non-transferable, non-exclusive, revocable, limited license to download and use the Software in object code form only, solely in connection with the Product that You own or control. Any terms or conditions relating to the Software and Documentation appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, the terms of this Agreement will not be binding on the parties, even if payment is accepted.

    2. Conditions of Use.

      1. Any use of the Software or Documentation outside of the conditions set forth in this Agreement is strictly prohibited and will be deemed a breach of this Agreement.

      2. Only you or your Authorized Users or may use the Software and Documentation. You will take all necessary steps to insure that your Authorized Users abide by the terms of this Agreement.

      3. You will use the Software and Documentation (1) only for your internal business purposes; (2) only as described in the Software and Documentation; and (3) in strict accordance with this Agreement.

      4. You may use the Software and Documentation, provided that the use is in conformance with the terms set forth in this Agreement.

      5. Portions of the Software or Documentation, its contents, features and functionality (including, without limitation, all user interfaces, information, software, code, text, graphics, images, video and audio, and the design, selection and arrangement thereof) (collectively, the “Content”) are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

      6. You shall not directly or indirectly do any of the following:

        1. use the Software on any device other than a Product that is owned or controlled by You or Your business organization;

        2. sell, offer for sale, lease, license, sublicense or distribute the Software or any Content in any form without the prior written consent of Thunder NSI;

        3. copy, reproduce, broadcast, transmit, republish, distribute, modify, prepare derivative works of, perform, publicly perform or display the Software or any Content in any way without the prior written consent of Thunder NSI and its applicable licensors;

        4. remove or alter any copyright, trademark or other proprietary rights notices from the Software or Content, or use them in contravention of any such applicable notices;

        5. reverse engineer, decompile, translate, disassemble or otherwise attempt to (i) derive the source code or the underlying ideas, algorithms, structure or organization of any Software (except that the foregoing limitation does not apply to the extent that such activities may not be prohibited under applicable law); or (ii) defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including, without limitation, any such mechanism used to restrict or control the functionality of the Software;

        6. use the Software in violation of any third-party rights or any local, state, national or international law or regulation;

        7. violate any accompanying user or technical manuals, training materials, specifications or other documentation pertaining to any Software, where in digital or printed format;

        8. engage in any High Risk Activities (as defined in Section (V)(b)(ii));

        9. release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Thunder NSI for each such release; or

        10. create a substantially similar software to the Software, or any component thereof.

      7. You are responsible for obtaining, properly installing and maintaining the Software and any other services or products needed for access to and use of the Software, and for paying all charges related thereto.

    3. Third Party Software.

      1. Certain software included in, distributed with or downloaded in connection with the Software may comprise third party proprietary software products that are subject to separate license terms (“Third Party Software”). All such Third Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software,” together with Third Party Software, “External Software”).

      2. Your use of External Software is subject in all cases to the applicable licenses from the External Software provider, which shall take precedence over the rights and restrictions granted in this EULA solely with respect to such External Software. You shall comply with the terms of all applicable Third Party Software and Open Source Software licenses, if any.

      3. FOR THE AVOIDANCE OF DOUBT, THUNDER NSI PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE. Thunder NSI does not provide any warranty, maintenance, technical or other support for any External Software. Accordingly, Thunder NSI is not responsible for Your use of any External Software or any personal injury, death, property damage (including, without limitation, to Your home), or other harm or losses arising from or relating to Your use of any External Software.

    4. Ownership. The Software is proprietary to Thunder NSI. You acknowledge and agree that: (i) the Software and Products are protected under U.S. and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (ii) Thunder NSI and its suppliers and/or licensors retain all right, title and interest (including, without limitation, all patent, trademark, copyright, trade secret and other intellectual property rights) in and to the Licensed Products, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, any Feedback from You incorporated into the Software or Products as contemplated by Section 5 below, (iii) there are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Thunder NSI and (iv) the Software is licensed, not sold and You acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Software or Products.

    5. Trademarks. All trademarks, service marks, trade names and logos and the goodwill associated therewith (“Marks”) included or displayed in the Software or Content are the exclusive property of Thunder NSI or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Thunder NSI or such respective holders.

  3. Automatic Updates.

    1. Thunder NSI may, from time to time and at its sole option, provide patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications to the Software, including certain External Software, which items shall be deemed part of the Software and External Software hereunder. YOU HEREBY CONSENT TO ANY SUCH AUTOMATIC UPDATES. These may be automatically installed without providing any additional notice to You or receiving Your additional consent. If You do not consent, Your remedy is to stop using the Software. Notwithstanding the foregoing, Thunder NSI withholds the right to require You to install any patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications in order to access and use the Software.

  4. Term and Termination. This EULA will remain in full force and effect so long as You continue to access or use the Software, or until terminated in accordance with this EULA. You may discontinue Your use of and access to the Software at any time. Thunder NSI will automatically terminate this EULA at any time without notice to you if you fail to comply with any term of this EULA. You may terminate it at any time upon written notice to Thunder NSI at legal@thundernsi.com. Upon any such termination, the licenses granted by this EULA will immediately terminate and you agree to stop all access and use of the Product, Software and documentation and destroy the Software and documentation, together with all copies and merged portions in any form. The provisions that by their nature continue and survive will survive any termination of this EULA.

  5. Feedback. You may provide suggestions, comments or other feedback (“Feedback”) with respect to the Software. Feedback, even if designated as confidential by You, shall not create any confidentiality obligations on Thunder NSI. You agree that Thunder NSI is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback provided by You as Thunder NSI sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

  6. For U.S. Government End Users.  The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Licensed Product is provided to U.S. Government end users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

  7. Collection and Use of Information. You acknowledge and agree that Thunder NSI may, directly or indirectly through the services of third parties, collect and store information regarding the use and performance of the software and about equipment through which it otherwise is accessed and used. You further agree that Thunder NSI may use such information for any purpose related to any use of the Software by You, including, without limitation, improving the performance of the Software or developing updates and verifying Your compliance with the terms of this Agreement and enforcing Thunder NSI’s rights, including all intellectual property rights in and to the license. Thunder NSI shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (“Data”), and You give Thunder NSI the right to use and disclose such Data (during and after the term of this Agreement) in accordance with Thunder’s published Privacy Policy.

  8. WARRANTY DISCLAIMER

    1. Disclaimer of Warranties TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS LICENSED “AS-IS” AND “AS AVAILABLE”, WITH ALL FAULTS. THUNDER NSI DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY OF SERVICE OR RESULTS, AVAILABILITY, SATISFACTORY QUALITY, LACK OF VIRUSES, TITLE, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FEATURES OR FUNCTIONALITY AND ANY COMMUNICATION WITH YOU IS FOR INFORMATION PURPOSES ONLY, AND DOES NOT CONSTITUTE A WARRANTY OR REPRESENTATION. WITHOUT LIMITING THE FOREGOING, THUNDER NSI EXPRESSLY DOES NOT WARRANT THAT THE CONTENT, OPERATION, OUTPUT OR IMPLEMENTATION OF THE SOFTWARE WILL: (I) MEET YOUR REQUIREMENTS; (II) BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE OR COMPLETE; (III) BE COMPATIBLE WITH YOUR NETWORK, COMPUTER, OR MOBILE DEVICE; (IV) OR THAT THUNDER NSI OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR FIX ANY ERRORS OR THAT SUCH RESOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.

    2. Emergency Response; High Risk Activities.

      1. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE, WHETHER STANDING ALONE OR WHEN INTERFACED WITH PRODUCTS OR THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT CERTIFIED FOR EMERGENCY RESPONSE, AND ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. MOBILE OR OTHER NOTIFICATIONS REGARDING THE STATUS OF THE SOFTWARE ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. YOU AGREE THAT YOU WILL NOT RELY ON THE SOFTWARE FOR EMERGENCY RESPONSE OR ANY OTHER LIFE SAFETY OR CRITICAL PURPOSES.

      2. NEITHER THE SOFTWARE NOR ANY PRODUCT IS DESIGNED, MANUFACTURED OR INTENDED FOR THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, EMERGENCY AND SAFETY SERVICES, HEALTHCARE FACILITIES, HOSPITALS, LIFE SUPPORT SYSTEMS OR ANY MISSION CRITICAL ENVIRONMENT, WHERE THE USE OR FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). YOU AGREE THAT YOU WILL NOT USE THE SOFTWARE FOR ANY HIGH RISK ACTIVITIES.

    3. Data Storage. Thunder NSI is not responsible or liable for the deletion of or failure to store or process any information or other content provided by You or transmitted in the course of using the Software. You are solely responsible for securing and backing up such submissions.

    4. Versions. You acknowledge and agree that the Software provided to You under this EULA may be in “beta” or test form, or otherwise not intended or completed for commercial use and may therefore contain errors, bugs or similar unstable characteristics not typical of commercially released items. Such characteristics may negatively affect the operation of previously installed software or equipment. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the software and accompanying materials. You acknowledge that the Software may be provided to You from time to time as a program participant solely for the purpose of providing Thunder NSI with feedback on the Software and the identification of defects.

  9. LIMITATION OF LIABILITY

    1. UNDER NO CIRCUMSTANCES WILL THUNDER NSI OR ITS SUPPLIERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE) FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THIS EULA OR THE INSTALLATION, MAINTENANCE, PERFORMANCE, FAILURE OR INTERRUPTION OR USE OF SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), EVEN IF THUNDER NSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THESE TERMS, THUNDER NSI OR ANY OF ITS SUPPLIERS ARE FOUND TO BE LIABLE, THE LIABILITY OF THUNDER NSI OR ITS SUPPLIERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS TO YOU OR TO ANY THIRD PARTY IS LIMITED TO ONE HUNDRED DOLLARS ($100). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.

    2. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations and disclaimers may not apply to You. To the extent that Thunder NSI may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Thunder NSI’s liability will be the minimum permitted under such applicable law.

  10. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THUNDER NSI AND ITS LICENSORS AND SUPPLIERS, AND THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES AND FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT SUCH PARTIES MAY INCUR AS A RESULT OF OR ARISING FROM A VIOLATION OF THIS EULA.

  11. Export Regulations. You acknowledge that the products, software, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with these laws and regulations and acknowledge that You have the responsibility to obtain any licenses to export, re-export, or import as may be required after delivery to You. You shall not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Products, You represent and warrant that You are not located in any such country or on any such list. You acknowledge and agree that You shall strictly comply with all applicable laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to operating the Software, or exporting, re-exporting, releasing or otherwise making the Software available outside the U.S. You acknowledge and agree that Thunder NSI has no further responsibility after the initial delivery to You, and You hereby agree to indemnify and hold Thunder NSI harmless from and against all claim, loss, liability or damage suffered or incurred by Thunder NSI resulting from or related to Your failure to comply with all export or import

  12. Confidentiality. You agree that the Software contains proprietary information, including trade secrets, know how and confidential information, that is the exclusive property of Thunder NSI. During the Term and at all times after the termination of this Agreement, You and Your employees and agents shall maintain the confidentiality of such proprietary information and not sell, license, publish, display, distribute, disclose or otherwise make available such proprietary information to any third party, nor use such information except as authorized by this Agreement.

  13. General.

    1. Governing Law; Jurisdiction. This EULA shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather, this EULA shall be governed by the laws of the State of Nevada, including its Uniform Commercial Code, without reference to conflicts of laws principles. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Clark Country, Nevada and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Thunder NSI may seek injunctive relief in any court having jurisdiction to protect its confidential information or intellectual property.

    2. Severability. If any of the provisions, either in part or in full, of this EULA is held by a court or other tribunal of competent jurisdiction to be unenforceable or invalid, such provision shall be enforced to the maximum extent possible or permissible and this EULA will be interpreted so as to give maximum effect to the original intent of the parties with respect to the unenforceable provision, and the remaining portions of this EULA shall remain in full force and effect.

    3. Assignment. You may not assign any of Your rights or obligations under this EULA without Thunder NSI’s express written consent. Thunder NSI may assign this EULA without Your consent.

    4. Waiver. The waiver by either party of any default by the other party shall not waive subsequent defaults by such other party of the same or different kind. The failure of either party to enforce the provisions hereof, at any time or for any period of time, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.

    5. Third Party Beneficiary. Licensors and suppliers of Thunder NSI and its affiliates are third party beneficiaries of this EULA, and thus this EULA is directly enforceable by such licensors and suppliers and their affiliates.

    6. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of or related to use of the Software or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred.

    7. Interpretation. As used herein, unless the context requires otherwise, the word “or” is not exclusive and the words “will,” “will not,” “shall,” and “shall not” are expressions of command and not merely expressions of future intent or expectation. Whenever the words “include,” “includes” or “including” are used in this EULA, they shall be deemed to be followed by the words “without limitation.” The section headings in this EULA are for convenience only and have no legal or contractual effect.

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