NETENRICH MASTER SUBSCRIPTION AGREEMENT – PARTNER – DUAL ROLE
Last Modified: March 28, 2022
This Master Subscription Agreement (“MSA” or “Agreement”) is between Netenrich, Inc. (“Netenrich”), and the entity “Partner” which has accepted this Agreement through a document which references this agreement. Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in the Definitions section below. This Agreement sets forth the terms and conditions that govern orders placed under this Agreement.
This Agreement governs Partner’s access, sublicense and use of the Subscription Products identified in the Order Form (capitalized terms defined below). Partner shall be entitled to operate both as a Service Provider and as a Reseller, each as defined in Section 1 below.
The Agreement is deemed to include the Acceptable Use Policy and any other terms and policies expressly referenced herein or in other incorporated documents, all of which are expressly deemed incorporated in the Agreement by this reference.
By executing this MSA and applicable Order Form(s) and/or by indicating acceptance of such agreements by checking the applicable boxes on Netenrich’s web portal, Partner agrees to and accepts the provisions of this MSA and the applicable T&Cs that are referenced in the Order Form. Accordingly, this MSA, the T&Cs, and the Order Form(s), comprise the complete agreement and understanding between Partner and Netenrich with regard to the access, subscription and usage of any of the Subscription Products. The effective date of this Agreement (the “Effective Date”) is the date that Partner checked the applicable boxes on Netenrich’s web portal or the later of the dates signed in the signature blocks at the end of the first Order Form executed between Netenrich and Partner.
- 1.1 “Affiliate” with respect to Partner means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Partner, and: (i) that receives the benefit of the Subscription Products through Partner’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 and performance of the Subscription Products for Partner. “Affiliate” with respect to Netenrich means any foreign (i.e. non-U.S.) entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Netenrich and that provides services to Partner pursuant to this MSA.
- 1.2 “AUP” means the then-current acceptable use policy described at Acceptable Use Policy. References to “Customer” in the AUP will mean “Partner”.
- 1.3 “BAA” or “Business Associate Agreement” means an amendment to the Agreement covering the handling of Protected Health Information (as defined in HIPAA).
- 1.4 “Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinctive brand features.
- 1.5 “Documentation” means the end-user documentation, if any, which Netenrich makes available in connection with the Subscription Products.
- 1.6 “End-Client” means collectively Service Provider End-Client(s) and Reseller End-Client(s)
- 1.7 “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 marks (whether registered or not), registered designs, database rights, design rights and other proprietary rights in any jurisdictions that grant similar rights as the foregoing, including those subsisting in inventions, software, source code, object code, applications drawings, performances, software, business names, and in applications for the protection of any of the foregoing.
- 1.8 “Netenrich” means Netenrich, Inc., a Delaware Corporation, located at 2590 N. First Street, Suite 300, San Jose, California 95131.
- 1.9 “Netenrich API” means any application programming interface provided by Netenrich as part of the Subscription Products.
- 1.10 “Netenrich Software” means the software owned by Netenrich and provided 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 in Section 23 below.
- 1.11 “Order Form” means an electronic or other order form or document which specifies the Subscription Products which are being purchased / subscribed to by the Partner, and contains such other terms relating to the purchase of Subscription Products by the Partner.
- 1.12 “Partner” means the legal entity which enters into a subscription for the access and usage of specified Netenrich products or services, 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 Partner.
- 1.13 “Partner Data” means any electronic data belonging to the Partner, the End-Client, or their agents or employees, that is processed by Netenrich in the course of providing the Subscription Products to the Partner.
- 1.15 “Professional Services” means any training, implementation, consulting, development, or educational services provided by or on behalf of Netenrich pursuant to a Subscription Product.
- 1.16 “Reseller” means the role that the Partner assumes when it only resells the Netenrich Subscription Product(s) to a Reseller End-Client, obtains the Reseller End-Client’s approval of the End-Client Terms Agreement, and arranges for NetEnrich to provide such Subscription Product(s) to the Reseller End-Client.
- 1.17 “Reseller End-Client” means end-clients of Partner (in its role as Reseller) that purchase, access and use the Subscription Products pursuant to this MSA, the T&C’s and an Order Form(s), for their internal purposes and not for resell.
- 1.18 “Service Provider” means the role that the Partner assumes when the Partner uses the Netenrich Subscription Product(s):
- (i) internally to provide Service Provider’s own services, or
- (ii) to be used directly, indirectly or in combination with one or several other products of Partner to provide its services or products to its Service Provider End Clients.
- 1.19 “Service Provider End-Client” means the end-clients of Partner (in its role as Service Provider) to whom services are provided pursuant to this MSA, the T&Cs and an Order Form(s).
- 1.20 “Subscription Product(s)” means the Netenrich Software, Documentation and the specified products and/or services, 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.
- 1.21 “Term” means the term described in Section 1, including all renewals.
- 1.22 “Terms and Conditions” or “T&C” means the terms and conditions that are specific to a Subscription Product provided by Netenrich, and may include a description of the Subscription Product, statement of work, service level agreement and other specifications relevant to that Subscription Product. 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 MSA, the provisions of the T&Cs shall prevail.
- 1.23 “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.
- 1.24 “URL” means a uniform resource locator address to a site on the internet.
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 MSA and the associated T&Cs, and provided that Partner 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 Partner 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 Partner, its End-Clients 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 Partner and minimize disruption to the Subscription Products. If a Partner Affiliate or an End-Client with a location outside of the United States (“Partner International Affiliate”) is purchasing Subscription Products, the Partner shall execute a local country addendum if requested by Netenrich specifying any local country required terms on behalf of Partner’s International Affiliate. Notwithstanding any term or provision to the contrary, the Partner shall remain primarily responsible for making all payments for Subscription Products used by its Affiliates and End-Clients, both international and domestic, under this MSA and the applicable T&Cs and Order Form.
- 2.3 License: Subject to the terms and conditions of this Agreement, Netenrich grants Partner, for the duration of the Term, a worldwide, non-exclusive, non-transferable, revocable, limited license to use for itself and to sublicense to End-Clients the Subscription Products during the Term, solely as necessary for Partner to use the Subscription Products as set forth herein. Partner shall be primarily responsible for any breach by itself or by its Service Provider End-Clients of any terms and conditions in:
- (i) this MSA,
- (ii) all applicable T&Cs and Order Forms,
- (iii) NetEnrich’s Acceptable Use Policy incorporated herein by reference, and
- (iv) all applicable laws and regulations.
- 2.4 Software: Pursuant to the license granted in Section 3 above, the Partner 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 Partner or its End-Clients solely to facilitate Partner’s or its End-Clients’ 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 Partner.
- 2.5 Restrictions: Partner is expressly prohibited from, and shall not assist or allow others (including but not limited to End-Clients) to:
- (a) use the Subscription Products 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 services for third-parties in competition with Netenrich;
- (d) disassemble, reverse engineer, or decompile the Subscription Products or any component thereof;
- (e) copy, create derivative works based on, or otherwise modify the Subscription Products;
- (f) remove or modify a copyright or other proprietary rights notice in the Subscription Products;
- (g) use the Subscription Products 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 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; or
- (i) access or disable any Netenrich or third-party data, software, or network (other than Partner’s (or its End-Clients’) instance of the Subscription Product under this Agreement).
- 2.6 Netenrich Ownership: Netenrich exclusively owns and retains for itself all right, title and interest in and to the Subscription Products, Professional Services and all other designs, engineering details, schematics, drawings, specifications, data and Intellectual Property Rights in the foregoing.
- 2.7 Trademarks: Partner shall not alter or remove any of Netenrich’s trademarks affixed to the Subscription Products. Nothing contained in this Agreement shall grant or shall be deemed to grant Partner 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 Partner 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 a Partner or its End Client exceeds the applicable usage limit, the Partner shall be liable for such additional fees in proportion to the quantity and period of the excess usage.
3. Trial Usage
- 3.1 Trial Period: If the Subscription Products subscribed to by the Reseller and Reseller End-Client in the Order Form offers a trial usage period, Netenrich shall make such Subscription Product available to the Reseller and Reseller End-Client on a trial basis for the trial period set out in the T&Cs applicable to such Subscription Product (“Trial Period”). Upon the expiry of the Trial Period and if the Reseller and Reseller End-Client does not cancel the subscription to the Subscription Product, the paid subscription of the Reseller and Reseller End-Client shall commence, and the Reseller and Reseller End-Client shall have payment obligations as set out in Section 4 – Fees and Billing.
- 3.2 Terms during Trial: During the Trial Period, Netenrich shall not have any indemnity obligations to the Reseller and/or Reseller End-Client as described in Section 16 – Indemnification of this MSA and shall be entitled to terminate the usage of the Subscription Products by Reseller and/or Reseller End-Client at any time during the Trial Period, without notice, for convenience. Additional terms and conditions applicable to the Trial Period for any Subscription Product shall be set out in the T&Cs applicable to such Subscription Product.
4. Fees and Billing
- 4.1 Fees: The Partner shall pay Netenrich the fees specified in the Order Form (“Fees”). Except as specified in this MSA or the Order Form, all Fees paid by the Partner are non-refundable and payment obligations are non-cancellable during the term of the subscription in the Order Form.
- 4.2 Payment Terms: The Partner acknowledges and agrees that payment of all fees shall be made in accordance with this MSA. Where a Partner opts for payment through an ACH-enabled mode or other similar automated payment facility (“Digital Payment Mode”), the Partner authorizes Netenrich to charge the Fees to such payment facility at such intervals as specified in the Order Form, and to process any renewal subscription that may be set out therein. Where the Order Form specifies a mode of payment other than a Digital Payment Mode, Netenrich shall invoice Partner for the Fee at such intervals as specified in the Order Form, and the payment of Fees will be due within thirty (30) days after the date of invoice. All payments must be made in U.S. dollars. Failure to pay all such Fees may result in immediate suspension or termination of the Subscription Products at Netenrich’s sole discretion. The Partner shall be solely responsible for paying any collection fees or charges associated with its payments hereunder.
- 4.3 Overdue Payments: If the Digital Payment Mode fails or an invoice remains unpaid beyond the due date for the payment of Fees, Netenrich reserves the right to charge interest on the outstanding Fee at the rate of 10% per annum or the maximum rate permitted under applicable law, whichever is lower. Netenrich shall also be entitled to exercise any other rights available to it under this Agreement and/or applicable law.
- 4.4 Costs: If and to the extent that the implementation, performance or delivery of the Subscription Products require agents of Netenrich to be present at the Partner’s or its End-Client’s premises, then Partner shall reimburse Netenrich either on a flat fee or itemized basis for reasonable travel-related expenses.
- 4.5 Taxes: Payment of all taxes that may be levied upon the provision of the Subscription Products, assessable in any jurisdiction, shall be the sole responsibility of the Partner.
5. Partner Obligations
- 5.1 Compliance with Law: The Partner acknowledges that Netenrich exercises no control over any content of Partner or its Service Provider End-Clients accessible to Netenrich in connection with the Subscription Products and hereby represents, warrants and covenants:
- (i) that such content complies with all applicable federal, state, international and foreign country laws, rules and regulations, and
- (ii) that Partner shall enforce such representations, warranties and covenants against Service Provider End-Clients.
- 5.2 License; Cooperation: The Partner hereby grants on its own behalf, and agrees to obtain from each Service Provider End-Client, a nonexclusive, nontransferable license to Netenrich for the use of any of Partner’s or such Service Provider 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. Partner must also ensure that Netenrich is provided with a minimum level of connectivity to Partner’s or its Service Provider End-Clients’ servers, to be agreed by the parties, in order for Netenrich to adequately provide the Subscription Products. The Partner acknowledges and agrees that all Subscription Products shall be provided remotely and that all on-site tasks shall be Partner’s or its Service Provider End-Clients’ sole responsibility, except as otherwise set forth in the applicable T&Cs and/or Order Form. To the extent that Partner requests Netenrich or elects to use Partner 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 Partner as part of the Subscription Products, Partner (on behalf of itself and its Service Provider End-Client(s)) 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 Partner or its Service Provider End-Clients as part of the Subscription Products, Partner shall cooperate with Netenrich in complying or ensuring that its Service Provider End-Clients comply with any third-party flow down terms and conditions, including but not limited to, any third-party end-user license agreements.
- 5.3 Consents: Partner is responsible for any consents and notices required to permit
- (a) Partner’s and End-Client’s use and receipt of the Subscription Products, and
- (b) Netenrich and/or Third Party Software provider’s accessing, storing, and processing of data provided by Partner or End-Clients (including Partner Data) under this Agreement.
- 5.4 Compliance: Partner will
- (a) ensure that Partner and its End-Client’s 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 Partner becomes aware, and
- (d) maintain appropriate privacy policies as required in accordance with applicable laws.
- 5.5 Use Restrictions: In its role as Service Provider, Partner will not, and will ensure that its End-Clients will not –
- (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Subscription Products (except to the extent such restriction is expressly prohibited by applicable law)
- (b) resell, sublicense, transfer, or distribute the Subscription Products, or supply the Subscription Products to any third party who will resell, sublicense, transfer, or distribute the Subscription Products (except as provided in Section 7 (End-Client Criteria)
- (c) 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;
- (vi) to operate or enable any telecommunications service, or to place or receive calls from any public switched telephone network, including as part of a Partner Application; or
- (vii) to provide a hosting, outsourced, or managed services solution to unaffiliated third parties, except as part of its services and/or product solution.
- 5.6 Misleading Statements: Partner will not make any unauthorized, false, misleading, or illegal statements in connection with this Agreement or regarding Netenrich and/or Third Party Software provider, its Affiliates or any of their products or services, including the Subscription Products. Partner will not make any representations, warranties, or commitments concerning the Subscription Products on behalf of Netenrich and/or Third Party Software provider. Netenrich will not be responsible for any representations, warranties, or commitments made by Partner concerning the Subscription Products.
- 5.7 End-Client Criteria: In its role as Service Provider, Partner may sell the Subscription Products as part of its services and/or product solution to End-Clients, and, in its role as Reseller, Partner may resell Subscription Products to End-Clients, in each case provided that
- (a) Partner will conduct sufficient due diligence to conclude with reasonable assurance that each End-Client:
- (i) is a legitimate business in good standing,
- (ii) is not engaged in any known activities that would lead to a foreseeable risk of a violation of the requirements of this Agreement, and
- (iii) will conduct business ethically and competently, in compliance with all applicable laws;
- (c) Partner will ensure that End-Clients will not
- (i) develop Intellectual Property that incorporates or uses the Subscription Products or Software, or
- (ii) infringe or misappropriate Netenrich and/or Third Party Software provider’s Intellectual Property Rights. If Netenrich becomes aware of Partner soliciting or selling its services and/or product solution to an End-Client that engages in illegal or deceptive trade practices or any other behavior prohibited by this Agreement, then Netenrich will notify Partner and Partner will terminate such End-Client’s right to use the Subscription Products.
- (a) Partner will conduct sufficient due diligence to conclude with reasonable assurance that each End-Client:
6. End-Client Agreements
In its role as Reseller, Partner will comply with the following sections:
- 6.1 Requirements for End-Client Agreements: Partner will ensure that any sale of its services and/or product solution to an End-Client is governed by an enforceable End-Client Agreement. Partner may not place an Order Form with Netenrich for the purchase of Subscription Products for any End-Client before Partner has entered into a End-Client Agreement with that End-Client for such Purchase. End-Client Agreements
- (a) will contain terms no less restrictive than the terms in this Agreement; and
- (b) will not contain any terms that
- (i) grant End-Clients any rights with respect to the Subscription Products that are broader than the rights granted to Partner in this Agreement, and
- (ii) are inconsistent with, or expand Netenrich’s obligations or liability beyond what is in, this Agreement. Partner must
- (a) keep copies of all End-Client Agreements;
- (b) track and keep records of all online acceptances of End-Client Agreements; and
- (c) provide such copies and/or online acceptance details to Netenrich upon request. Partner must enforce each End-Client Agreement with at least the same degree of diligence used by Partner to enforce similar agreements for its own products and services, but in no event less than a commercially reasonable degree of diligence.
- 6.2 Liability for End-Client Agreements: Without affecting any commitments made by Netenrich to Partner under this Agreement, Netenrich is not responsible for and will have no liability to Partner or End-Clients in relation to
- (a) any End-Client Agreement and
- (b) Partner’s provision, access, or use of the Subscription Products to, or on behalf of, End-Clients. Partner will be solely responsible for the sales process with respect to the sale of its services and/or product solution, including solicitation of potential End-Clients, entering into End-Client Agreements with End-Clients, and all billing and collection of fees from End-Clients.
7. Data Processing and Security
- 7.1 Data Processing and Security: Except as otherwise stated in this Agreement, Netenrich and its Affiliates will only access or use Partner Data to provide the Subscription Products ordered by Partner 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 Partner Data, as further described in the Data Processing and Security Terms.
8. Intellectual Property
- 8.1 Intellectual Property Rights: Except as expressly described in this Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other’s content or Intellectual Property. As between the parties, Partner retains all Intellectual Property Rights in Partner Data and Partner applications, and Netenrich retains all Intellectual Property Rights in the Subscription Products and Netenrich Software. Partner will maintain, and will not delete, cover or alter, Netenrich’s Brand Features or proprietary rights notices included in and on the Subscription Products.
- 8.2 Feedback: At its option, Partner may provide feedback and suggestions about the Subscription Products to Netenrich (“Feedback”). If Partner provides Feedback, then Netenrich and its Affiliates may use that Feedback without restriction and without obligation to Partner.
9. Updates to the Subscription Products and Terms
- 9.1 Changes to Subscription Products.
- 9.1.1 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.
- 9.1.2 Discontinuance: Netenrich will notify Partner 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.
- 9.1.3 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”.
- 9.1.4 Backwards Incompatible Changes. Netenrich will notify Partner at least 12 months before significantly modifying a Partner-facing Netenrich API in a backwards-incompatible manner.
- 9.2 Changes to Terms: Netenrich may update the URL 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 Partner Data as described in the Data Processing and Security Terms, or (c) have a material adverse impact on Partner’s rights under the URL Terms.
- 9.3 Permitted Changes: Sections 9.1 and 9.2 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 Subscription Products, offerings, or functionality.
10. Temporary Suspension
- 10.1 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) Partner’s or an End-Client’s use of the Subscription Products does not comply with the AUP and it is not cured following notice from Netenrich.
- 10.2 Limitations on Subscription Products Suspensions: If Netenrich suspends Subscription Products under Section 1 (Subscription Products Suspension), then
- (a) Netenrich will provide Partner 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.
- 11.1 Technical Support: Netenrich will provide Netenrich technical support services to Partner during the Order Term in accordance with the Netenrich technical support services guidelines. Partner is responsible for the technical support of its Partner applications and Partner services and/or products.
- 11.2 Other Features or Support: Netenrich may develop optional tools or other functionality to support Partner’s implementation or utilization of the Subscription Products (“Elective Offerings”). Elective Offerings are not included in, or considered a part of, the Subscription Products.
12. Brand Features; Publicity
- 12.1 Brand Features:
- 12.1.1 By Netenrich: Netenrich grants Partner a non-exclusive, non-royalty bearing, and non-sublicensable license during the Term to display Netenrich’s Brand Features solely for the purpose of Partner’s marketing of its services and/or products incorporating the Subscription Products, subject to, and in accordance with, this Agreement and the trademark guidelines.
- 12.1.2 By Partner: Partner grants to Netenrich a non-exclusive, non-royalty bearing, and non-sublicensable license to include Partner’s Brand Features during the Term in presentations, materials related to the Subscription Products, marketing materials and web site.
- 12.2 Brand Features Limitations:
- 12.2.1 Restricted Use: Each party may use the other party’s Brand Features only as expressly permitted in this Agreement. A party may revoke the other party’s right to use its Brand Features under this Agreement with written notice to the other and a reasonable period to stop the use.
- 12.2.2 Goodwill: All goodwill arising from the use by Partner of Netenrich’s Brand Features will belong to Netenrich. All goodwill arising from the use by Netenrich of Partner’s Brand Features will belong to Partner.
- 12.3 Publicity: Neither party will make any public statement regarding this Agreement without the other party’s prior written approval. The parties do not need to seek approval from the other party if the former party is repeating a public statement that is substantially similar to a public statement previously approved by the other party in accordance with this Agreement.
13. Confidential Information
- 13.1 Confidential Information: By virtue of this Agreement, each party (including a Service Provider End-Client) 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. Partner will ensure that any Service Provider End-Clients also comply with the terms of this Section 13. “Confidential Information”. The Subscription Products 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.
- 13.2 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.
- 13.3 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.
- 13.4 Ownership: All Confidential Information will remain the property of the Disclosing Party, and except for the limited rights expressly granted by Netenrich and by Partner (on behalf of itself and its Service Provider End-Clients) to each other under this MSA 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.
14. Representations and Warranties
- 14.1 Warranties:
- a) Each Party 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 further 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 MSA.
- c) Partner represents, warrants and covenants that:
- (a) Partner shall agree to, and is hereby legally bound by, the terms of this MSA and all applicable T&Cs and Order Forms,
- (b) in its role as Service Provider,
- (i) Partner’s and its Service Provider End-Clients’ services, products, materials, data, and information that may be used by Netenrich to provide Subscription Products in connection with this Agreement and Partner’s and its Service Provider End-Clients’ 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) Partner has obtained the necessary consent and/or authority to sublicense from each Service Provider End-Client or other third party as may be applicable for Netenrich to use and/or access such End-Client’s or third party’s Confidential Information, networks, content, data and/or Third Party Software in connection with providing the Subscription Products,
- (iii) Partner shall be fully liable for any breach of the terms of this MSA and all applicable T&Cs and Order Forms by its Service Provider End-Client(s), and
- (c) in its role as Reseller, Partner shall have each Reseller End-Client agree to, and be legally bound by, the End-Client Terms and all applicable T&Cs and the associated Order Form(s).
- d) Breach of Warranties: In the event of any breach, or reasonably anticipated breach, of Partner’s representations, warranties or covenants 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 Partner and/or its End-Clients if deemed reasonably necessary by Netenrich to prevent any harm to Netenrich or its business.
- a) Each Party represents and warrants that it is:
- 14.2 Warranty Disclaimer by Netenrich: EXCEPT AS EXPRESSLY STATED IN THIS SECTION 14, NETENRICH (INCLUDING ITS 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 EXCLUDE ALL WARRANTIES THAT ARE NOT SPECIFICALLY SET OUT IN THIS SECTION 14. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION AND/OR WAIVER OF CERTAIN WARRANTIES. TO THE EXTENT PARTNER’S (OR ITS END-CLIENTS’) 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.
15. Limitations of Liability
- 15.1 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.
- 15.2 Maximum Liability: EXCEPT FOR BREACH OF SECTION 13 (CONFIDENTIAL INFORMATION) OR SECTION 16 (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 PARTNER TO NETENRICH IN CONNECTION WITH THE ORDER FORM FOR A SERVICE PROVIDER END-CLIENT OR FOR PARTNER ITSELF THAT IS THE SUBJECT OF SUCH DISPUTE FOR THE SIX (6) MONTH PERIOD PRIOR TO WHEN THE EVENT CAUSING SUCH LIABILITY AROSE. IF THE DISPUTE IS IN CONNECTION WITH AN ORDER FORM FOR A RESELLER END-CLIENT, THEN THE TOTAL AMOUNT OF AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY SUCH RESELLER END-CLIENT TO PARTNER OVER THE SIX (6) MONTH PERIOD PRIOR TO WHEN THE EVENT CAUSING SUCH LIABILITY AROSE.
- 15.3 Basis of the Bargain; Failure of Essential Purpose: Partner 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.
- 16.1 Partner 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) Partner’s (and/or its Service Provider End-Clients’) 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 Partner, (or its Service Provider End-Clients), personnel or agents in connection with the provision of the Subscription Products hereunder, or
- (iii) any breach by Partner of its (or of the Service Provider End-Clients of their) representations, warranties or covenants under this MSA, and all applicable T&Cs and Order Forms. Partner shall pay all damages or settlements resulting from the Claim, but Partner 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.
- 16.2 Netenrich agrees to indemnify, defend and hold harmless Partner, 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 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 MSA 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 Partner’s rights or interest without Partner’s prior written approval, which will not be unreasonably withheld. Partner reserves the right to participate in any litigation regarding a Claim under this section with counsel of its choosing, at its own expense.
Notwithstanding the above, Netenrich will have no obligation or liability for any Claim under Section 16.2 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) Partner Data or Partner Technology; or
- (c) access to or use of the Subscription Products:
- (i) in violation of applicable law,
- (ii) or after termination of this MSA,
- (iii) as modified to Partner’s (or its End-Clients’) 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 Subscription Products infringe any third party intellectual property rights, Netenrich may, at its sole discretion:
- (a) contest the Claim;
- (b) obtain permission from the claimant for Partner’s (or its End-Clients’) continued use of its instance of the Subscription Products;
- (c) avoid such Claim by replacing or modifying Partner’s (or its End-Clients’) access to and use of its instance of the Subscription Products, 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 Partner’s (or its End-Clients’) access to and use of the affected Subscription Product on 60 days’ prior notice, whereupon the Partner 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 Partner shall not be entitled to any refund of Fees for the period of the Term already elapsed, during which the Partner accessed and used the Subscription Products.
- 16.3 In addition to the provisions set out above, the obligations of Netenrich and Partner under Sections 1 and 16.2 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. The indemnifying party will not publicize any settlement without the indemnified party’s prior, written consent.
17. Term and Termination
- 17.1 Term: This MSA is effective between the Partner and Netenrich as of the date of execution or acceptance of this MSA as set forth in the introductory section of this MSA. Subject to the terms and conditions hereof, this MSA shall remain in effect for the duration of the subscription specified in any active Order Form(s) (“Term”).
- 17.2 Termination: Either party will have the right to terminate this Agreement or any applicable T&Cs and Order Form if the other party breaches any material term or condition 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. Either party may terminate this Agreement or an applicable T&C and Order Form if the other party:
- (i) terminates or suspends its business activities;
- (ii) makes an assignment for the benefit of creditors;
- (iii) becomes subject to the control of a trustee, receiver or similar authority; or
- (iv) becomes the subject of any petition or proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
- 17.3 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 Partner shall cease all access and usage of the Subscription Products; and
- (ii) all payment obligations of Partner 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.
- 17.4 Survival: The following provisions will survive any termination of this Agreement: Sections 1 (Definitions), 6 (Ownership), 2.7 (Trademarks), 4 (Fees and Billing), 5 (Partner Obligations), 6 (End-Client Agreements), 8 (Intellectual Property), 13 (Confidential Information), 14 (Representations and Warranties), 15 (Limitations of Liability), 16 (Indemnification), 17 (Term and Termination), and 18 (Miscellaneous Provisions).
- 17.5 Solicitation of Employment after Termination: Each Party agrees that for one (1) year after the date of termination of services, it will not knowingly directly or indirectly solicit or take away employees or consultants of the other Party. 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.
18. Miscellaneous Provisions
- 18.1 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.
- 18.2 Force Majeure: Except for the obligation to pay money, neither party will 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.
- 18.3 Government Regulations: Each party agrees to comply with all laws and regulations applicable to such party (and, in the case of Partner in its role as Service Provider, the Service Provider End-Clients) in the course of performance of its obligations under this MSA and all T&Cs and Order Forms. Partner acknowledges that the Subscription Products provided under this MSA, 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 rendered, provisioned, or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which Partner (or the End-Clients) 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 rendered or received. The Partner (and its End-Clients) also may be subject to import or re-export restrictions in the event Partner (or its End-Client) transfers the Subscription Products from the country of delivery and the Partner 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 Partner’s or its End-Clients’ failure to obtain such license or to provide such certification.
- 18.4 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. The parties hereby consent 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.
- 18.5 Amendment: This Agreement and any T&Cs and Order Forms may be amended only in a writing that is duly signed by both parties.
- 18.6 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.
- 18.7 Notices: Any notice or communication required or permitted to be given hereunder may be delivered through electronic email or physical service to the address(es) indicated in the Order Form, and such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
- 18.8 Entire Agreement: This Agreement, including all T&Cs and Order Forms, exhibits and documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
- 18.9 Partner as Government Agency: This Section 9 is applicable in the event that Subscription Products are provided to a Partner (or its End-Client) that is the U.S. Government or any of its agencies. The Subscription Products are deemed to be “commercial computer software” and “commercial computer software documentation” 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).
- 18.10 Prohibited Usage: The Subscription Products may be subject to export laws and regulations of the United States, and the Partner represents that neither it nor its End-Clients are named on any denied-party list or located in an embargoed country, under the laws of the United States, and the Partner agrees to prevent any usage that violates any United States export law or regulation.
- 18.11 Network Security and Privacy Liability: Partner will additionally maintain network security and privacy liability insurance with coverage limits of not less than US$5,000,000 per claim, that includes coverage for:
- (a) Partner’s unauthorized disclosure of, or failure to properly handle, personal or other confidential data; and
- (b) financial loss, including any related defense expense, resulting from Partner’s wrongful acts in rendering Subscription Products to Customers pursuant to the Agreement. If Partner’s professional liability policy includes coverage for network security and privacy liability, then a US$5,000,000 aggregate of coverage will be acceptable between the Professional Liability limits and the Network Security and Privacy Liability Limits.