NIMSOFT-ON-DEMAND MANAGED
SERVICE PROVIDER SERVICES
AGREEMENT
(Rev. 03012011-MSP)
1. Definitions 1.1 "Agreement" means collectively, this Nimsoft-‐On-‐Demand Managed Service Provider Agreement, together with each Product Schedule and all attachments, exhibits, schedules, policies, and instructions incorporated by reference thereto. 1.2. "Confidential Information" means any and all information disclosed by either party (the "Disclosing Party") to the other (the "Receiving Party"), which is marked "confidential" or "proprietary" or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, but not limited to, the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, stock ranking information, buy and/or sell lists, portfolio holdings, client information, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party. 1.3. "Documentation" means the standard written instructions or manuals, including any updates thereto, relating to the use of the Software as made generally available by Nimsoft. 1.4. "Employee" shall mean an individual employee, contractor or agent of Service Provider that accesses the Services on behalf of Service Provider as permitted herein. 1.5. "End User" means an unaffiliated, third party customer of Service Provider that receives Services for such third party's internal business purposes from Service Provider. 1.6. "Error" means the failure of the Services to substantially conform to the Documentation. 1.7. "Intellectual Property" means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-‐how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world. 1.8. "Product Schedule" means one or more ordering documents, which shall contain, among other items, the: (1) Subscription Commencement Date; (2) Services; (3) fees; and (4) signatures of authorized representatives of the Parties. 1.9. "Services" means the access to online network and performance monitoring solutions (including Documentation), provided by Nimsoft through use of the System. 1.10. "Service Provider" means the entity identified in the applicable Product Schedule which incorporates this Agreement. 1.11. "Service Provider Data" means information submitted by, or entered by an Employee or automatically uploaded through the use of the Services including, but not limited to, account information, network information, user ids and usage details. 1.12. "Supported Equipment" shall mean a server, network device or other hardware or software solution that is: (a) used for internal business purposes; and (b) monitored or supported using the Service. 1.13. "System" includes the software and hardware used to provide the Services to Customer over the Internet, including application software, web and/or other internet servers, any associated offline components, and all updates thereto. 1.14. "Third Party Managed Services" means system monitoring and performance management services provided by Service Provider to End Users. 1.15. "Uptime" means the time in which the functionality from the System is available for access, less any unscheduled outages. Unscheduled outages shall not include outages which are due to: (a) Service Provider's or a third party's software; (b) Service Provider acts or omissions; (c) any event of force majeure; or (d) scheduled maintenance. 2. Services 2.1 License. Subject to the terms and conditions of the applicable Product Schedule, Nimsoft grants Service Provider a non-‐exclusive, non-‐transferable, non-‐
sublicenseable right to have each Employee access and use the Service in accordance with the Documentation to provide Third Party Managed Services to End Users for Supported Equipment. Service Provider agrees that is shall be liable for each Employee's compliance to the terms of this Agreement. 2.2 Subscription. Customer shall purchase a license for each piece of Supported Equipment during the Subscription Term. The Product Schedule may include additional restrictions which are incorporated herein. 2.3 Restrictions. Service Provider will not, and will not allow any third party to: (a) modify, copy, or otherwise reproduce the System in whole or in part (except to make a reasonable number of copies for back-‐up purposes); (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the System; (c) provide, lease or lend the Services or System to any third party except as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the System; (e) modify or create a derivative work of any part of the System; (f) use the Services or System for any unlawful purpose; or (g) create public internet "links" to or from the System, or "frame" or "mirror" any of Nimsoft's content which forms part of the System. 2.4 Service Provider Obligations. Service Provider represents and warrants that it shall: •
(a) make commercially reasonable efforts to provide technical support to End Users in a professional and workmanlike manner in accordance with •
•
industry standards. (b) make commercially reasonable efforts to secure the Software, related passwords and Documentation, and (c) not make any representations, warranties or create obligations or liabilities on behalf of Nimsoft. 3. Fees, Duration & Payment 3.1 Fees. Nimsoft's current fee schedule is included in the applicable Product Schedule. Nimsoft reserves the right to change fees or to institute new fees at any time. Service Provider will be notified in advance of the effective date of changes in fees or new fees via electronic mail. Such changes or new fees will become effective upon the later of Service Provider's next billing cycle or 30 days from the date of notice; however such revised fees will not affect the prices for Services specified on the then current Product Schedule during its term. 3.2 Reports. Service Provider shall be responsible for preparing reports that shall include, without limitation, information detailing the usage of the Services (including without limitation, the number of servers or devices monitored with the Services and any metrics under which the Services are licensed in the Product Schedule). In the event that Service Provider has exceeded the number of licenses purchase, such report shall be deemed an order for such additional licenses are required to remain in compliance with the Agreement. Such additional licenses shall remain in effect and billed at the rates set forth in the Product Schedule through the end of the then current term unless Service Provider otherwise provides written notice that the number of licenses used has been reduced (provided however in any event the number of licenses may not be lowered below the number ordered in the Product Schedule). Service Provider shall submit each report to Nimsoft on the penultimate business day of each calendar month. Failure to comply with this Section 3.2 shall be deemed a material breach of the Agreement. 3.3 Duration of License Subscriptions. Unless otherwise stated in the applicable Product Schedule: (a) all initial subscriptions will begin and continue for the initial Subscription Period set forth in the applicable Product Schedule (the initial "Subscription Period"); (b) any additional subscriptions added after the beginning of a Subscription Period will continue for the duration of that Subscription Period; (c) pricing for such additional subscriptions will be the same as that for the pre-‐
existing subscriptions, prorated for the remainder of the then-‐current Subscription Period; and (d) all subscriptions will automatically renew for additional Subscription Period(s) of one year at the then current Nimsoft price and subject to the current version of the terms and conditions for the Services on the date of renewal unless either party gives the other party notice of non-‐renewal at least ninety (90) days prior to the end of the relevant Subscription Period. 3.4 Payment. Fees for the Services will be billed in advance as specified in the applicable Product Schedule. Subscriptions added during the term will be pro-‐rated and billed for the remainder of the current Product Schedule term. Service Provider will pay amounts due and properly invoiced within the period specified on the invoice. 3.5 Suspension of Services. In the event that Service Provider's account, is thirty (30) days or more overdue or it fails to comply with Section 3.2, in addition to any of its other rights or remedies, Nimsoft reserves the right to terminate the applicable Product Schedule, this Agreement, and/or access to the Services. 3.6 Overdue Payments. Any late payments will accrue late charges at the rate of one and one-‐half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. 3.7 Taxes. All fees listed in the Product Schedule(s) are exclusive of any taxes. Service Provider will be responsible for all taxes, including sales or use taxes, imposed on such amounts, excluding taxes on Nimsoft's net income. 3.8 Billing and Contact Information. Service Provider will maintain complete and accurate billing and contact information on the Services at all times. 3.9 Audit. Nimsoft may audit Service Provider's use of the Service subject to reasonable notice. If an audit reveals that Service Provider has underpaid fees to Nimsoft, Service Provider shall be invoiced for such fees. Such audit shall be at Nimsoft's expense unless fees have been underpaid by 5% or more, in which case Service Provider shall pay for all expenses associated with the audit and fees due. Service Provider agrees to retain all relevant business records to justify compliance with the Agreement for a period of three (3) years from the date of any termination. 4. Proprietary Rights 4.1 Ownership. As between Nimsoft and Service Provider, Nimsoft owns all rights, including Intellectual Property rights, in the Services and System, any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of consulting services, whether made pursuant to this Agreement or a separate statement of work. No transfer of ownership will occur under this Agreement. All rights not expressly granted to Service Provider are reserved by Nimsoft. 4.2 Feedback. Service Provider, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information provided to Nimsoft ("Feedback"). For any and all Feedback, Service Provider grants to Nimsoft a non-‐exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense any Feedback in its products and services. Service Provider represents that it holds all intellectual or proprietary rights necessary to grant to Nimsoft such license, and that the Feedback will not violate the personal, proprietary or intellectual property rights of any third party. 5. Confidentiality and Security 5.1 Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party's Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to effect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement. 5.2 Exceptions. The restrictions set forth in Section 5.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party; (e) has been approved for release by the Disclosing Party's prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. 5.3 Injunctive Relief. The parties agree that a breach of Section 5.1 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party. 5.4 Service Provider Data. Service Provider Data shall be treated as Confidential Information under this Agreement. Nimsoft will comply with the privacy policy set forth on Nimsoft's website in collecting and using the Service Provider Data. 5.5 Security. Nimsoft uses commercially reasonable practices, including encryption and firewalls, to ensure that Service Provider Data is disclosed only to Service Provider and Employees. However, Service Provider acknowledges that the internet is an open system and Nimsoft cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Service Provider Data. 6. Availability 6.1 Availability. Nimsoft uses commercially reasonable efforts to maintain availability of the Services and System twenty-‐four (24) hours per day, seven (7) days per week, in accordance with Nimsoft's policies. Nimsoft commits to achieve 99.9% Uptime. If Nimsoft is unable to meet this level of Uptime in any month, Customer must submit a request for credit, and Nimsoft will provide to Customer a service credit for the downtime (a "Service Credit"). Service Provider will receive a Service Credit equal to ten percent (10%) of the applicable Subscription fees for the month in which the outage event(s) occurred for every one percent (1%) that Uptime falls below 99.9%, up to a maximum of fifty percent (50%) of the applicable Subscription fees for that month. In order to receive a Service Credit, Service Provider must submit a request to Nimsoft within fifteen (15) days following the month in which the outage event(s) occurred. Any Service Credit will be applied against subsequent monthly Subscription fees due to Nimsoft. The Service Credits set forth in this Section 6.1 are Service Provider's sole and exclusive remedy for not achieving the Uptime levels herein. 6.2 Downtime. Scheduled and unscheduled interruptions may occur, and Nimsoft does not warrant uninterrupted availability of the System. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and designed to cause a minimum amount of interruption to Services and System availability. Service Provider will be notified of scheduled interruptions in advance. In the event that an unscheduled interruption occurs, Nimsoft will use commercially reasonable efforts to resolve the problem and return the System to availability as soon as practical. During these scheduled and unscheduled interruptions, Service Provider may be unable to transmit and receive data through the Services. Service Provider agrees to cooperate with Nimsoft during the scheduled and unscheduled interruptions if assistance from Service Provider is necessary in order to restore the System to working order. 6.3 Changes. Nimsoft reserves the right to modify or temporarily suspend use of the Services or portions thereof. Nimsoft may also temporarily restrict Service Provider's access to parts of the Services for maintenance or system administration purposes without notice or liability. 7. Support and Services 7.1 Technical Support. Nimsoft will provide standard technical support to two (2) designated Employees of Service Provider who have undergone Nimsoft's training for Employees of the Services. Nimsoft will provide such support through a variety of systems, including on-‐line help, FAQ's, training guides and templates and the use of live help. Nimsoft is not obligated to maintain or support any customization to the System or Services except under a separate agreement signed by the parties. Service Provider shall be solely responsible for all Technical Support to End Users and Nimsoft shall only provide Technical Support to Service Provider for End User related technical request after Service Provider has made reasonable efforts to address such issues with its own staff. 7.2 Consulting Services. Any consulting services, training or other requirements not expressly stated in this Agreement, Product Schedule or in a separate statement of work signed by the parties are outside the scope of this Agreement and only will be provided for additional fees. In the event any work product or code is created in the provisioning of consulting services, Nimsoft shall retain all rights, title and license in such work product or code provided that it shall be licensed to Service Provider under the same terms as the Service. Fees for such items are payable as specified in the applicable Product Schedule and unless otherwise specified will be paid upon receipt of invoice. For the purposes of computing daily rates, Nimsoft's standard workday is eight (8) hours. Changes in any statement of work will be effective only if a change request is signed by the parties. 8. Term & Termination 8.1 Term. This Agreement commences on the Subscription Commencement Date as set forth in the Product Schedule and will terminate when: (a) all Subscription Periods and any renewals thereof entered into pursuant to this Agreement have expired or been terminated or (b) this Agreement is otherwise terminated as provided for herein. 8.2 Termination for Cause. Either party may terminate the Agreement (a) for cause upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) either party ceases to do business as an operating concern; or (c) becomes financially insolvent, makes an assignment for the benefit of creditors, files for bankruptcy dismissed within sixty (60) days following the filing. In addition, Nimsoft may terminate this Agreement immediately for any failure of Service Provider to pay amounts due by it that are thirty (30) days or more past due. 8.3 Effect of Termination. Termination will not relieve Service Provider of the obligation to pay any fees due or payable to Nimsoft prior to the effective date of termination, including annual fees, implementation fees, training fees, license subscription fees, or any other fees or payments that Service Provider has committed to under the Agreement. All licenses granted hereunder shall immediately terminate and Service Provider shall return or destroy all Software and Confidential Information in its possession. Service Provider shall certify its compliance with these provisions no less than thirty (30) days from the date of termination. Sections 1, 4, 5, 8, 10, 11 and 12 will survive any termination or expiration of the Agreement. 8.4 Return of Materials. All Confidential Information, designs, drawings, formulas or other data, financial information, business plans, literature, and sales aids of every kind will remain the property of the Disclosing Party. No later than thirty (30) days after termination, each party will prepare all such items in its possession for shipment to the other at the Disclosing Party's expense. The Receiving Party will not make or retain any copies of any Confidential Information. 8.5 Service Provider Data. In the event of any termination of the applicable Product Schedule or this Agreement, Service Provider Data will be made available to Service Provider either from Nimsoft or through a third party offsite storage provider for up to thirty (30) days after termination. Reasonable storage charges may apply. 9. Warranties 9.1 Authority. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under the Agreement; that the execution, delivery and performance of the Agreement has been duly authorized; that the Agreement is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement. 9.2 Warranty. During the first thirty (30) days of the Service or from the provision of consulting services, as applicable, Nimsoft warrants that (i) the Services will function substantially in conformance with the Documentation, and (ii) any consulting services provided by Nimsoft will be performed consistent with accepted industry standards. 9.3 Notices and Correction of Errors. Service Provider will notify Nimsoft in writing of any Errors. Nimsoft will use commercially reasonable efforts, at its own expense, to determine if there is an Error, and to correct or remedy Errors within thirty (30) days of such notice. Service Provider will make reasonably appropriate adjustments to mitigate adverse effects of any Error until Nimsoft corrects or remedies such Error. 9.4 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NIMSOFT DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS. 9.5 Remedies. For any breach of the warranties contained in Section 9.2 above, Service Provider's exclusive remedy, and Nimsoft's entire liability, shall be (i) in the case of an Error in the Services, the correction of Errors that cause breach of the warranty, or if Nimsoft in its discretion decides it is unable or impracticable to make the Services operate as warranted, Nimsoft may to terminate this Agreement and refund any pre-‐paid unused Subscription fees; and (ii) in the case of a breach of warranty with respect to the consulting services, the re-‐performance of the consulting services, or if Nimsoft is unable to perform the consulting services as warranted, Service Provider shall be entitled to recover the fees paid to Nimsoft for the nonconforming consulting services. 10. Indemnification 10.1 Nimsoft Indemnification. Nimsoft agrees to indemnify Service Provider against any losses or damages finally awarded against Service Provider incurred in connection with a third party claim alleging that the Service Provider's use of the unaltered Services or System infringes or misappropriates any U.S. or European Union member states' patent, copyright, or trade secret of such third party, provided that Service Provider (a) provides prompt written notice of such claim to Nimsoft, (b) grants Nimsoft the sole right to defend such claim, and (c) provides to Nimsoft all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, Nimsoft may, at its sole option: (i) revise the Services and/or System so that they are no longer infringing; (ii) obtain the right for Service Provider to continue using the Services and System, or (iii) terminate the Agreement upon ten (10) days notice (and refund any pre-‐paid unused subscription fees). Notwithstanding the foregoing, Nimsoft shall have no liability or indemnification obligations for: (a) any modification of the Service by any party than Nimsoft; (b) use of the Service in combination with any third party hardware or software (to the extent that such liability would not arise without such combination); (c) for any open source code contained within the Services, if any; (d) any use of the Service not in conformance with the Documentation; or (e) any use of the Service after Nimsoft has provided instructions to terminate such use. THIS SECTION 10.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF NIMSOFT AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS. 10.2 Indemnification by Service Provider. Subject to the Agreement, Service Provider will defend, indemnify and hold Nimsoft harmless against any loss or damage incurred in connection with claims made or brought against Nimsoft by a third party alleging damages from Service Provider's breach of this Agreement, including that the collection and use of Service Provider Data infringes the rights of a third party; provided, that Nimsoft (a) provides prompt written notice of such claim to Service Provider, (b) grants Service Provider the sole right to defend such claim, and (c) provides to Service Provider all reasonable assistance. 11. Limitation of Liability IN NO EVENT WILL NIMSOFT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF NIMSOFT FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE TOTAL AMOUNT PAYABLE TO NIMSOFT UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTHS. 12. General Provisions 12.1 Governing Law; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of New York, excluding its conflict of laws provisions. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Suffolk County, New York for any action arising hereunder. 12.2 Independent Contractors. The relationship of Nimsoft and Service Provider is that of independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-‐employee, or agents of each other. 12.3 Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by: (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-‐paid, U.S. express mail or national express courier with a tracking system to the address specified in the applicable Product Schedule; or (b) electronic mail. Notices will be deemed given on the day actually received by the party to whom the notice is addressed. 12.4 Assignment. The Agreement may not be assigned by Service Provider by operation of law or otherwise, without the prior written consent of Nimsoft, which consent will not be unreasonably withheld. 12.5 Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent (a "Force Majeure Event"). This clause will not apply to the payment of any sums due under the Agreement by either party to the other incurred prior to the Force Majeure Event. 12.6 Compliance with Laws. Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the Services, this includes without limitation export or re-‐export of the Services in compliance with all U.S. export laws (in no event shall the Services or System be exported to or accessed in Cuba, Iran, North Korea, Syria or Sudan). 12.7 Publicity. Nimsoft may use Service Provider's name and logo in Nimsoft's marketing program including use on Nimsoft's Service Provider website, marketing literature, and in press releases as part of its description of customers. 12.8 Miscellaneous. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights. The Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile signatures are valid signatures for enforcement of the Agreement. 12.9 Incorporation and Interpretation. The Agreement constitutes the entire agreement between Nimsoft and Service Provider with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings. Additional Product Schedules may be added to this Agreement by reference to this Agreement, provided that each such Product Schedule is signed by both parties. No term or condition contained in Service Provider's purchase order or similar document will apply unless specifically agreed to by Nimsoft in writing, even if Nimsoft has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Nimsoft. In the event of a conflict between this Agreement and the Product Schedule, the Product Schedule will govern.