END-CLIENT TERMS AGREEMENT
Last Modified: March 28, 2022
This End-Client Terms Agreement (this “Agreement”) includes the Acceptable Use Policy and any other terms and policies expressly referenced herein or in other incorporated documents. End-Client shall be deemed to be bound by this Agreement upon End-Client’s use of the Subscription Products as defined herein.
- 1.1 “Affiliate” with respect to End-Client means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with End-Client, and:
- (i) that receives the benefit of the Subscription Products through End-Client’s or such Affiliate’s purchase of the Subscription Products, or
- (ii) whose data is included, accessed or received by Netenrich in connection with the provision of the Subscription Products for End-Client.
- 1.2 “Documentation” means the end-user documentation, if any, which Netenrich makes available in connection with the Subscription Products.
- 1.3 “End-Client” means all entities who enter into a subscription for the access and usage of specified Netenrich Subscription Products for their internal purposes and not for resale, by way of the execution of an Order Form. Where an individual executes the Order Form, the separate legal entity on whose behalf such individual is acting, and its Affiliates, shall also mean End-Client.
- 1.4 “End-Client Data” means any electronic data belonging to the End-Client, or the End-Client’s agents or employees, that is processed by Netenrich in the course of rendering the Subscription Products to the End-Client.
- 1.5 “Intellectual Property Rights” means all rights in the intellectual property of any type throughout the world, including but not limited to, patents, trade secrets, copyrights, industrial designs, trademarks and service.
- 1.6 “Netenrich” means Netenrich, Inc., a Delaware Corporation, located at 2590 N. First Street, Suite 300, San Jose, California 95131.
- 1.7 “Netenrich Software” means the software owned by Netenrich and provided to End-Client in conjunction with the provision of the Subscription Products, and includes any Third-Party Software that is embedded in the Netenrich Software in accordance with definition of Third-Party Software herein.
- 1.8 “Order Form” means an electronic or other order form or document which specifies the Subscription Products which are being purchased / subscribed to by the End-Client, and contains such other terms relating to the purchase of Subscription Products by the End-Client.
- 1.10 “Professional Services” means any training, implementation, consulting, development, or educational services provided by or on behalf of Netenrich pursuant to a Subscription Product or as a separate service.
- 1.11 “Reseller” means the entity through which End-Client purchased the right to use the Subscription Products.
- 1.12 “Subscription Product(s)” means the specified products, Netenrich Software and Documentation, including any software as a service (“SaaS”), of Netenrich which are subscribed to by the Partner and/or its End-Clients in an Order Form. Subscription Products can include Professional Services.
- 1.13 “Terms and Conditions” or “T&C” means the terms and conditions that are specific to a Service provided by Netenrich, and may include a description of the Service, statement of work, service level agreement and other specifications relevant to that Service. At its sole discretion, Netenrich may offer new or revised T&Cs from time to time, which shall be deemed part of this Agreement. In the event of any conflict between the provisions in the T&Cs and this Agreement, the provisions of the T&Cs shall prevail.
- 1.14 “Term” means the term described in Section 1, including all renewals.
- 1.15 “Third Party Software” means the software owned by third party providers (including Open Source community providers), which may be embedded in the Netenrich Software or a non-embedded third-party software or tool that is used by Netenrich to facilitate the operation of the Subscription Products or the interoperation of the Subscription Products with other software or hardware.
2. Subscription Products and License Grants
- 2.1 Subscription Products: Upon valid execution of an Order Form and/or by checking the appropriate boxes on Netenrich’s portal to evidence acceptance of such Order Form, this Agreement and the associated T&Cs, and provided that End-Client has met the requirements set forth therein, Netenrich shall:
- (i) provide the Subscription Products described in the applicable T&Cs and Order Form, in accordance with applicable law, and
- (ii) use commercially reasonable efforts to keep the Subscription Products available and accessible by the End-Client in the manner set out in the T&Cs, except for: (a) planned downtime, and (b) unavailability caused by circumstances beyond the control of Netenrich including such events constituting a Force Majeure, as set out in Section 2.
- 2.2 Conditions: Netenrich shall have no liability for any delay in the provision of Subscription Products due to the fault of the End-Client or a third party. Except as provided otherwise in an applicable T&Cs and Order Form, Netenrich reserves the right to suspend the provision of the Subscription Products for purposes of maintenance or improvement, provided that Netenrich will use reasonable efforts to provide prior notice to End-Client and minimize disruption to the Subscription Products. If End-Client with a location outside of the United States is purchasing Subscription Products, the End-Client shall execute a local country addendum if requested by Netenrich specifying any local country required terms.
- 2.3 License: Subject to the terms and conditions of this Agreement, Netenrich grants End-Client, for the duration of the Term, a worldwide, non-exclusive, non-transferable, revocable, limited license to
- (i) use the Subscription Products during the Term;
- (ii) use the Netenrich Software during the Term; and
- (iii) use and reproduce the Documentation, solely as necessary for End-Client to use the Subscription Products as set forth herein, each in accordance with the Netenrich’s Acceptable Use Policy incorporated herein by reference, and all applicable laws and regulations.
- 2.4 Software: Pursuant to the license granted in Section 3 above, the End-Client may, as appropriate under an Order Form and applicable T&Cs, use a Netenrich SaaS product and/or install and execute a component of the Netenrich Software on machines operated by or for End-Client solely to facilitate End-Client’s authorized access to and use of the Subscription Products. The Netenrich Software, which may include Third Party Software, is licensed and not sold, even if for convenience Netenrich makes reference to words such as sale or purchase anywhere in any document with the End-Client.
- 2.5 Restrictions: End-Client is expressly prohibited from, and shall not assist or allow others to:
- (a) use the Subscription Products or Netenrich Software in a manner that circumvents usage limits or technological access control measures;
- (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make any of the Subscription Products, or part thereof, available for access by third-parties, except as may otherwise be expressly stated in an Order Form;
- (c) access the Subscription Products for the purpose of developing or operating products or Subscription Products for third-parties in competition with Netenrich;
- (d) disassemble, reverse engineer, or decompile the Subscription Products, the Netenrich Software, or any component thereof;
- (e) copy, create derivative works based on, or otherwise modify the Subscription Products or Netenrich Software;
- (f) remove or modify a copyright or other proprietary rights notice in the Subscription Products or Netenrich Software;
- (g) use the Subscription Products or Netenrich Software to reproduce, distribute, display, transmit, or use material protected by copyright or other Intellectual Property Right (including the rights of publicity) without first obtaining permission of the owner;
- (h) use the Subscription Products or Netenrich Software to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation;
- (i) access or disable any Netenrich or third-party data, software, or network (other than End-Client’s instance of the Subscription Products under this Agreement); or
- (j) access or use, or permit the access or use of, the Subscription Products:
- (i) for High Risk Activities;
- (ii) in a manner intended to avoid incurring fees;
- (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State;
- (iv) in a manner that breaches, or causes the breach of, Export Control Laws;
- (v) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA; or
- (vi) to operate or enable any telecommunications service, or to place or receive calls from any public switched telephone network, including as part of an End-Client application.
- 2.6 Netenrich Ownership: Netenrich exclusively owns and retains for itself all right, title and interest in and to the Subscription Products, Netenrich Software, Professional Services if provided as part of Subscription Products, Documentation, and all other designs, engineering details, schematics, drawings, specifications, data and Intellectual Property Rights in the foregoing.
- 2.7 Trademarks: End-Client shall not alter or remove any of Netenrich’s trademarks affixed to the Subscription Products, Software or Documentation. Nothing contained in this Agreement shall grant or shall be deemed to grant End-Client any right, title or interest in Netenrich’s trademarks or trade names.
- 2.8 Third Party Services: The Subscription Products may contain features which are intended to be interoperable with third-party services or products, and if such third party withdraws, alters or restricts such services or products, Netenrich may cease or withdraw such feature from the Subscription Products, without entitling the End-Client to any refund or credit.
- 2.9 Usage Limits: The Subscription Products shall be subject to the usage limits specified in the Order Form. In the event that an End-Client exceeds the applicable usage limit, the End-Client shall be liable for such additional fees in proportion to the quantity and period of the excess usage.
- 2.11 Feedback: At its option, End-Client may provide feedback and suggestions about the Subscription Products to Netenrich (“Feedback”). If End-Client provides Feedback, then Netenrich and its Affiliates may use that Feedback without restriction and without obligation to End-Client.
3. End-client Obligations
- 3.1 Compliance with Law: The End-Client acknowledges that Netenrich exercises no control over any content accessible to Netenrich in connection with the Subscription Products and hereby covenants that such content complies with all applicable federal, state, international and foreign country laws, rules and regulations. If the use, processing and/or transfer of End-Client or Authorized User data in the Subscription Products, Software and/or Documentation is subject to regulation under the European Union General Data Protection Regulation (GDPR), then the End-Client shall agree to the terms and conditions of the applicable Data Processing Agreement (DPA). Such DPA will be deemed issued under and incorporated by reference into these End-Client Terms.
- 3.2 License; Cooperation: The End-Client hereby grants to Netenrich a nonexclusive, nontransferable license to use any of End-Client’s Confidential Information (as defined below), data and content reasonably necessary for Netenrich to provide the Subscription Products, and shall provide all reasonable cooperation to Netenrich with respect to its provision of the Subscription Products, including, but not limited to, access to appropriate personnel, facilities, and equipment (including but not limited to servers, devices, and computers), prompt notification of any occurrence of damage to the Software or damage caused by the Subscription Products, or any errors, nonconformities or interruptions in the Subscription Products. End-Client must also ensure that Netenrich is provided with a minimum level of connectivity to End-Client’s servers, to be agreed by the parties, in order for Netenrich to adequately provide the Subscription Products. The End-Client acknowledges and agrees that all Subscription Products shall be provided remotely and that all on-site tasks shall be End-Client’s sole responsibility, except as otherwise set forth in the applicable T&Cs and/or Order Form. To the extent that End-Client requests Netenrich or elects to use End-Client software or Third-Party Software in connection with the Subscription Products, and provided that such software is not specifically and expressly sublicensed by Netenrich to End-Client as part of the Subscription Products, End-Client grants Netenrich a worldwide, nonexclusive, nontransferable, limited license or sublicense to use such software but only in connection with the Subscription Products as contemplated herein. To the extent that Third Party Software is specifically and expressly sublicensed by Netenrich to use for End-Client as part of the Subscription Products, End-Client shall cooperate with Netenrich in complying with any third-party flow down terms and conditions, including but not limited to, any third-party end-user license agreements.
- 3.3 Compliance: End-Client will (a) ensure that its use of the Subscription Products complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Subscription Products, (c) promptly notify Netenrich of any unauthorized use of, or access to, the Subscription Products of which End-Client becomes aware, and (d) maintain appropriate privacy policies as required in accordance with applicable laws.
4. Data Processing and Security
- 4.1 Data Processing and Security: Except as otherwise stated in this Agreement, Netenrich and its Affiliates will only access or use End-Client Data to provide the Subscription Products ordered by End-Client and will not use it for any other Netenrich products, services, or advertising. Netenrich has implemented and will maintain administrative, physical, and technical safeguards to protect End-Client Data, as further described in the Data Processing and Security Terms.
5. Update to the Subscription Products and Terms
- 5.1 Changes to Subscription Products.
- 5.1.1 Limitations on Changes: Netenrich may update the Subscription Products, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Subscription Products.
- 5.1.2 Discontinuance: Netenrich will notify End-Client at least 12 months before discontinuing any Subscription Products (or associated material functionality) unless Netenrich replaces such discontinued Subscription Products or functionality with a materially similar Subscription Products or functionality.
- 5.1.3 Support: Netenrich will continue to provide product and security updates, and Netenrich technical support services, until the conclusion of the applicable notice period under Section 1.2 “Discontinuance”.
- 5.1.4 Backwards Incompatible Changes: Netenrich will notify End-Client at least 12 months before significantly modifying a End-Client-facing Netenrich API in a backwards-incompatible manner.
- 5.2 Changes to Terms: Netenrich may update its terms, provided the updates do not
- (a) result in a material reduction of the security of the Subscription Products
- (b) expand the scope of or remove any restrictions on Netenrich’s processing of End-Client Data as described in the Data Processing and Security Terms, or
- (c) have a material adverse impact on End-Client’s rights under the terms.
- 5.3 Permitted Changes: Sections 1 and 5.2 do not limit Netenrich’s ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to new or pre general availability products, services, offerings, or functionality.
6. Temporary Suspension
- 6.1 Subscription Products Suspension: Netenrich may suspend Subscription Products if (a) necessary to comply with law or protect the Subscription Products or Netenrich’s infrastructure supporting the Subscription Products, or (b) End-Client’s use of the Subscription Products does not comply with the AUP and it is not cured following notice from Netenrich.
- 6.2 Limitations on Subscription Products Suspensions: If Netenrich suspends Subscription Products under Section 1 (Subscription Products Suspension), then
- (a) Netenrich will provide End-Client notice of the cause for suspension without undue delay, to the extent legally permitted, and
- (b) the suspension will be to the minimum extent and for the shortest duration required to resolve the cause for suspension.
- 7.1 Technical Support: Netenrich will provide Netenrich technical support services to End-Client for the term indicated in the Order Form in accordance with the Netenrich technical support services guidelines.
- 7.2 Other Features or Support: Netenrich may develop optional tools or other functionality to support End-Client’s implementation or utilization of the Subscription Products (“Elective Offerings”). Elective Offerings are not included in, or considered a part of, the Subscription Products.
8. Confidential Information
- 8.1 Confidential Information: By virtue of this Agreement, each party may have access to information that is confidential to the other party. “Confidential Information” means any information disclosed previously or in the future by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, information, technical data, or know-how, including, but not limited to, that which relates to research, products, services, customers, markets, software, developments, inventions, processes designs, drawings, engineering, marketing or finances, which Confidential Information is designated in writing to be “confidential,” or “proprietary,” or some similar designation, or other information, technical data, or know-how, the confidential or proprietary nature of which is reasonably apparent under the circumstances. The Netenrich Software shall be deemed Confidential Information of Netenrich. Confidential Information shall not include any information that:
- (i) is or becomes available to the public without the fault or negligence of the recipient
- (ii) was already in the possession of the recipient
- (iii) is subsequently received from a third party without notice of restriction on further disclosure; or
- (iv) has been independently developed by the recipient.
- 8.2 Maintenance of Confidentiality: The Receiving Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. The Receiving Party shall make no copies of the Confidential Information of the Disclosing Party unless expressly allowed in this Agreement, or unless the Disclosing Party previously approves the same in writing. The Receiving Party shall reproduce the Disclosing Party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
- 8.3 Non-Use and Non-disclosure: The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose except to perform its obligations under this Agreement. The Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to third parties without the prior written approval of the Disclosing Party, except that a Receiving Party may disclose Confidential Information if such disclosure is required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
- 8.4 Ownership: All Confidential Information will remain the property of the Disclosing Party, and except for the limited rights expressly granted by Netenrich and by End-Client to each other under this Agreement and any applicable T&Cs and Order Form, no license under any patent, copyright, trade secret, or other intellectual property rights or other right to Confidential Information is granted or implied by the Disclosing Party to the Receiving Party by estoppel, inducement or otherwise.
9. Representations and Warranties
- 9.1 Warranties:
- a) End-Client represents and warrants that it is: (i) duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation; (ii) permitted by applicable laws and regulations to enter into and perform under this Agreement; (iii) it will perform hereunder in compliance with all applicable laws, rules and regulations, both foreign and domestic; (iv) this Agreement has been duly authorized and executed on its behalf; and (v) upon execution and delivery, this Agreement shall constitute its valid and binding obligation, enforceable in accordance with its terms.
- b) Netenrich represents and warrants that the Subscription Products shall be provided in accordance with commercially reasonable industry standards in connection with the applicable T&Cs and Order Forms and this Agreement.
- c) End-Client represents and warrants that: (i) End-Client’s services, products, materials, data, and information that may be used by Netenrich to provide Subscription Products in connection with this Agreement as well as End-Client’s use of Subscription Products does not as of the Effective Date, and will not during the Term, operate in any manner to violate the rights of any third party, (ii) End-Client has obtained the necessary consent and/or authority to sublicense from any third party as may be applicable for Netenrich to use and/or access such third party’s Confidential Information, networks, content, data and/or Third Party Software in connection with providing the Subscription Products.
- d) Breach of Warranties. In the event of any breach, or reasonably anticipated breach, of End-Client’s warranties herein, in addition to any other remedies available at law or in equity, Netenrich will have the right to immediately, in Netenrich’s sole discretion, suspend any Subscription Products to End-Client if deemed reasonably necessary by Netenrich to prevent any harm to Netenrich or its business.
- 9.2 Warranty Disclaimer by Netenrich: EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, NETENRICH AND RESELLER (INCLUDING THEIR AFFILIATES, SUB-CONTRACTORS AND AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS, MAKE NO, AND DISCLAIM ALL, EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SUBSCRIPTION PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD-PARTY PURCHASES. THE SUBSCRIPTION PRODUCTS ARE PROVIDED BY NETENRICH ON AN “AS IS” BASIS, AND EXCLUDES ALL WARRANTIES THAT ARE NOT SPECIFICALLY SET OUT IN THIS SECTION 9. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION AND/OR WAIVER OF CERTAIN WARRANTIES. TO THE EXTENT END-CLIENT’S USE OF THE SUBSCRIPTION PRODUCTS IS GOVERNED BY THE LAWS OF SUCH JURISDICTION AND SUCH EXCLUSIONS AND/OR WAIVERS ARE NOT ENFORCEABLE BY VIRTUE OF THIS AGREEMENT BEING GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND THE UNITED STATES, THE FOREGOING EXCLUSIONS SHALL BE ENFORCED SOLELY TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAWS OF SUCH JURISDICTION.
10. Limitations of Liability
- 10.1 Exclusions: Neither party will be liable to the other for any lost revenue, lost profits, loss of customers, savings, replacement goods, loss of technology, rights or services, incidental, punitive, indirect or consequential damages, loss or corruption of data or software, loss of use of systems or networks (or the recovery of such), or interruption of business or loss of business opportunity, even if Netenrich or the other party is advised of the possibility of such damages, whether under a theory of contract, tort, strict liability or otherwise.
- 10.2 Maximum Liability: EXCEPT FOR BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION) OR SECTION 11 (INDEMNIFICATION), NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY OR ITS EMPLOYEES, SUBSIDIARIES, AND AFFILIATES, SUCCESSORS, SUPPLIERS, LICENSORS, AGENTS AND PERMITTED ASSIGNS IN CONNECTION WITH THIS AGREEMENT (TOGETHER WITH THE T&Cs AND ORDER FORM) WILL EXCEED THE TOTAL AMOUNT PAID BY END-CLIENT TO RESELLER IN CONNECTION WITH THE ORDER THAT IS THE SUBJECT OF SUCH DISPUTE FOR THE SIX (6) MONTH PERIOD PRIOR TO WHEN THE EVENT CAUSING SUCH LIABILITY AROSE.
- 10.3 Basis of the Bargain; Failure of Essential Purpose: End-Client acknowledges that Netenrich has set its prices and entered into this Agreement in reliance upon the limitations of liability set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
- 10.4 Waiver of Rights under Agreement with Reseller: Notwithstanding any language to the contrary in any agreement End-Client has entered into with Reseller, End-Client hereby agrees and acknowledges that all of its rights and remedies as to any dispute arising out of this Agreement shall be adjudicated and resolved exclusively in accordance with this Agreement. As such, in connection with such dispute, End-Client expressly waives any and all rights and remedies that it may have otherwise had against Netenrich in any other agreement with Reseller.
- 11.1 End-Client agrees to indemnify, defend and hold harmless Netenrich, its employees, subsidiaries, and affiliates, successors, suppliers, licensors, agents and permitted assigns from and against all third party suits and claims, including reasonable attorneys’ fees and court costs (“Claim”) to the extent such Claim is based, in whole or in part, on
- (i) End-Client’s illegal, improper or unauthorized use of the Subscription Products
- (ii) bodily injury or death of any person, or damage to real and/or tangible personal property directly caused by the gross negligence or willful misconduct of End-Client, its Affiliates, personnel or agents in connection with the provision of the Subscription Products hereunder, or
- (iii) any breach by End-Client of its representations, warranties or covenants under this Agreement, and all applicable T&Cs and Order Forms. End-Client shall pay all damages or settlements resulting from the Claim, but End-Client shall not enter into any settlement that affects Netenrich’s rights or interest without Netenrich’s prior written approval, which will not be unreasonably withheld. Netenrich reserves the right to participate in any litigation regarding a Claim under this section with counsel of its own choosing at its own expense.
- 11.2 Netenrich agrees to indemnify, defend and hold harmless End-Client, its employees, subsidiaries, and Affiliates, successors, suppliers, licensors, agents and permitted assigns from and against all Claims to the extent such Claim is based on
- (i) allegations that the Subscription Products or Netenrich Software has infringed the intellectual property rights of a third party, or
- (ii) any grossly negligent or wilful breach by Netenrich of its representations, warranties or covenants under this Agreement and the applicable T&Cs and/or Order Form. Netenrich shall pay all damages or settlements resulting from the Claim, but Netenrich shall not enter into any settlement that affects End-Client’s rights or interest without End-Client’s prior written approval, which will not be unreasonably withheld. End-Client reserves the right to participate in any litigation regarding a Claim under this section with counsel of its choosing, at its own expense.
However, Netenrich will have no obligation or liability for any Claim under Section 2 to the extent arising in whole or in part from:
- (a) any access to or use of the Subscription Products not expressly authorized under this Agreement, to the extent the Claim would have been avoided without such unauthorized access or use;
- (b) End-Client Data or End-Client Technology; or
- (c) access to or use of the Subscription Products:
- (i) in violation of applicable law
- (ii) after termination of this Agreement
- (iii) as modified to End-Client’s specifications or by anyone other than Netenrich or its contractors, if the Claim would have been avoided but for such modifications; or
- (iv) combined with anything not provided by Netenrich, if the Claim would have been avoided but for such combination.
Provided further that where the Claim alleges that the Netenrich Software infringes any third party intellectual property rights, Netenrich may, at its sole discretion:
- (a) contest the Claim;
- (b) obtain permission from the claimant for End-Client’s continued use of its instance of the Subscription Products or any relevant Netenrich Software;
- (c) avoid such Claim by replacing or modifying End-Client’s access to and use of its instance of the Subscription Products or any relevant Netenrich Software, as long as this such replacement or modification is substantially similar in nature; or, if Netenrich determines the foregoing (a), (b), and (c) are not commercially practicable, then (d) terminate End-Client’s access to and use of the affected Subscription Products on 60 days’ prior notice, whereupon the End-Client shall be entitled to a refund of any Fees paid in advance for the remaining duration of the Term post such termination; it is clarified that the End-Client shall not be entitled to any refund of Fees for the period of the Term already elapsed, during which the End-Client accessed and used the Subscription Products.
- 11.3 In addition to the provisions set out above, the obligations of Netenrich and End-Client under Sections 1 and 11.2 are conditioned on the indemnified party (a) notifying the indemnifying party promptly in writing of any actual or threatened Claim, (b) the indemnified party giving the indemnifying party sole control of the defense of such Claim and of any related settlement negotiations, and (c) the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. Neither party will publicize any settlement without the prior, written consent of the other party.
12. Term and Termination
- 12.1 Term: These End-Client Terms are effective between the End-Client and Netenrich as of the date of acceptance of an applicable Order Form by and between Reseller and NetEnrich and shall, subject to the terms and conditions hereof, remain in effect for the duration of the subscription specified in such Order Form(s) (“Term”).
- 12.2 Termination: NetEnrich will have the right to suspend or terminate providing Subscription Products under an Order Form if End-Client breaches any material term or condition in the Order Form or these End-Client Terms and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within ten (10) business days after receipt of written notice of the breach from Netenrich.
- 12.3 Effect of Termination: Upon the effective date of termination of this Agreement or an applicable T&C and Order Form, or at the end of the Term: (i) Netenrich may immediately cease providing Subscription Products, and the End-Client shall cease all access and usage of the Subscription Products; and (ii) all payment obligations of End-Client will become due and payable immediately. Neither party shall make or retain any copies of any returned Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
- 12.4 Survival: The following provisions will survive any termination of this Agreement: Sections 1 (Definitions), 2.6 (Netenrich Ownership), 2.7 (Trademarks), 3 (End-Client Obligations), 8 (Confidential Information), 9 (Representations and Warranties), 10 (Limitations of Liability), 11 (Indemnification), 12 (Term and Termination) and 13 (Miscellaneous Provisions).
- 12.5 Solicitation of Employment after Termination: End-Client agrees that for one (1) year after the date of termination of the Subscription Products, it will not knowingly directly or indirectly solicit or take away employees or consultants of Netenrich. This provision shall not restrict in any way the right of either Party to solicit generally in the media for required personnel, and shall not restrict employees, contractors, recruiters or representatives of the other Party from pursuing, on their own initiative, employment opportunities from or with such Party.
13. Miscellaneous Provisions
- 13.2 High Risk Activity: Unless expressly set out in the Order Form or the applicable T&Cs, the Subscription Products are not designed or intended for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage, or other high risk activities of this nature.
- 13.2 Force Majeure: Netenrich will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
- 13.3 Marketing: Upon prior written consent from End-Client, Netenrich may refer to End-Client by trade name, trademark, and logo and may briefly describe End-Client’s business, in Netenrich’s marketing materials and web site.
- 13.4 Government Regulations: End-Client agrees to comply with all laws and regulations applicable to such party in the course of performance of its obligations under this Agreement and all T&Cs and Order Forms. End-Client acknowledges that the Subscription Products provided under this Agreement, T&Cs and Order Forms: (i) may include technology, authentication and encryption that may be subject to the customs and export control laws and regulations of the United States (“U.S.”), (ii) may be provided or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which End-Client or its systems are located, and (iii) may also be subject to the customs and export laws and regulations of the country in which the Subscription Products are provided or received. The End-Client also may be subject to import or re-export restrictions in the event End-Client transfers the Subscription Products from the country of delivery, and the End-Client is responsible for complying with applicable restrictions. Netenrich’s acceptance of any T&Cs and Order Forms for Subscription Products is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government. Netenrich will not be liable for delays or failure to deliver Subscription Products resulting from End-Client’s failure to obtain such license or to provide such certification.
- 13.5 Governing Law; Dispute Resolution, Severability; Waiver: This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law) and specifically excluding the United Nations Convention on the International Sale of Goods. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. End-Client hereby consents to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the County of Santa Clara, California for the purposes of adjudicating any matter arising from or in connection with this Agreement.
- 13.6 Amendment: This Agreement and any T&Cs and Order Forms may be amended only in a writing that is duly signed by NetEnrich.
- 13.7 Assignment: Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except that each party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
- 13.8 End-Client as Government Agency: This Section 8 is applicable in the event that Subscription Products are provided to an End-Client that is the U.S. Government or any of its agencies. The Netenrich Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable and any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a) with use governed by the terms of DFAR Section 227.7015(b).
- 13.9 Prohibited Usage: The Subscription Products and the Netenrich Software may be subject to export laws and regulations of the United States, and the End-Client represents that it is not named on any denied-party list or located in an embargoed country, under the laws of the United States, and the End-Client agrees to prevent any usage that violates any United States export law or regulation.