NETENRICH TRIAL SUBSCRIPTION AGREEMENT – NEW CUSTOMER
Last Modified: March 28, 2022
This trial subscription agreement (“Agreement”) is a legally binding contract between the legal entity identified as the Customer in the Order Form, and its Affiliates (hereafter referred to as the “Customer”), and Netenrich, Inc., a Delaware corporation located at 2590 North First Street, Suite 300, San Jose, CA 95131 (“Netenrich”), which governs the Customer’s Trial Subscription to Netenrich Software (capitalized terms defined below). Netenrich and the Customer are hereafter jointly referred to as the “Parties”.
By duly completing the Registration Process, the Customer is submitting a request for access to a Trial Subscription (“Trial Request”) of Netenrich Software. Upon Netenrich’s acceptance of the Customer’s Trial Request, the Customer will be entitled to a Trial License for the use of Netenrich Software, in accordance with the terms and conditions set out in this Agreement.
ACCORDINGLY, THE CUSTOMER IS DIRECTED TO CAREFULLY READ THIS AGREEMENT, AND ALL RELATED POLICIES REFERENCED HEREIN, AS IT CONTAINS IMPORTANT INFORMATION REGARDING THE CUSTOMER’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
1.1. “Affiliate” with respect to a Customer, means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Customer, and: (i) that receives the benefit of the Netenrich Software through Customer’s or such Affiliate’s purchase of the Netenrich Software, or (ii) whose data is included, accessed or received by Netenrich in connection with the performance of the Netenrich Software for Customer. “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 Customer pursuant to this Agreement.
1.2. “Authorization Capacity” shall have the meaning ascribed to it in Section 3.2.
1.3. “Confidential Information” means all confidential information disclosed by a party to this Agreement (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. It is clarified that Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was or becomes known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party as evidenced by written records, or (iii) is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information.
1.4. “Customer Data” means any electronic data belonging to the Customer that is processed by Netenrich in the course of any usage of Netenrich Software by the Customer.
1.5. “Customer Resources” means the covered personnel count, ingested alert or log data volume, infrastructure assets, and/or cybersecurity assets of the Customer that are identified in the Order Form, and specifically authorized by the Customer for the use of Netenrich Software.
1.6. “Documentation” means the end-user documentation, if any, which Netenrich makes available in connection with the Subscription Products.
1.7. “Effective Date” means the date on which electronic confirmation of Netenrich’s acceptance of the Customer’s Trial Request is sent to the email address identified in the Order Form.
1.8. “Intellectual Property Rights” means patents, copyright, registered designs, trademarks and service marks (whether registered or not), 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.
1.9. “Netenrich Software” (specifically Netenrich Resolution Intelligence – Platform 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 1.15 below.
1.10. “Netenrich Software IP” means Netenrich’s proprietary technology that comprises Netenrich Software, including the related service and documentation, websites, software tools, hardware designs, algorithms, software, APIs, user interface designs, architecture, documentation, network designs, know-how, and trade secrets, improvements, materials, methods, processes, formulas, techniques, deliverables and other information developed or otherwise made in whole or part by Netenrich, and all Intellectual Property Rights therein and thereto throughout the world (whether owned by Netenrich or licensed to Netenrich by a third party).
1.11. “Order Form” means the electronic document containing the specific terms governing the Trial Subscription of Netenrich Software, which is filled in with relevant information by the Customer and submitted to Netenrich.
1.13. “Registration Process” means the completion and submission of the Order Form, and the valid acceptance of this Agreement, in the manner indicated therein.
1.14. “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 Customer in an Order Form.
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.
1.16. “Trial Period” means the duration of the Trial Subscription, which shall commence on the Effective Date and extend for the duration indicated in the Order Form.
1.17. “Trial Subscription” means the subscription to a limited trial of Netenrich Software, during the Trial Period and in relation to the Customer Resources.
2. Trial User License
2.1. Subject to the terms and conditions of this Agreement, and the acceptance of the Customer’s Trial Request by Netenrich, Netenrich will grant the Customer a non-exclusive, non-transferable, revocable, limited right to use Netenrich Software in relation to the Customer Resources, for the duration of the Trial Period (“Trial License”).
2.2. The completion of the Registration Process and submission of a Trial Request does not entitle the Customer to a Trial Subscription, and Netenrich may, at its sole discretion, choose to either accept or reject a Trial Request. In the process of evaluating a Trial Request, Netenrich may request the Customer for further information, including appropriate evidence of (i) the authority of the Customer’s signatory to complete the Registration Process on its behalf, and (ii) Authorization Capacity (defined in Section 3.2).
2.3. Any usage of Netenrich Software by the Customer beyond the Trial Period shall require a paid subscription, and shall entail the obligation to execute such additional contractual documentation that Netenrich may specify, and pay such fees as Netenrich may decide, at its sole discretion, which shall be communicated to the Customer upon the expiry of the Trial Period.
2.4. The Trial License may be suspended at any point during the Trial Period, without prior notice to the Customer, and Netenrich reserves the right to modify, suspend or discontinue, temporarily or permanently, Netenrich Software or any service to which it connects, with or without notice and without liability to the Customer.
2.5. THE CUSTOMER AGREES AND ACKNOWLEDGES THAT NETENRICH HAS NO OBLIGATION WHATSOEVER TO CONTINUE PROVIDING THE CUSTOMER WITH ACCESS TO NETENRICH SOFTWARE, AND THE CUSTOMER WILL HAVE NO CLAIM OR REMEDY FOR THE FAILURE OF NETENRICH SOFTWARE. THESE LIMITATIONS ARE IN ADDITION TO THE WARRANTY DISCLAIMERS AND LIABILITY LIMITS IN THIS AGREEMENT.
2.6. The Trial License is subject to the adherence to and fulfillment of the following conditions by the Customer:
2.6.1. The Customer, along with its employees, agents, or other personnel, shall not (and shall not instruct or otherwise permit any third party to): (i) decompile, disassemble, reverse engineer or attempt to deconstruct, identify or discover any source code, underlying ideas or other technology, user interface techniques or algorithms of Netenrich Software; (ii) encumber, transfer, distribute, sell, disclose, sublicense, assign, provide, lease, lend, or use for the benefit of any third party, any part of Netenrich Software or its components; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of Netenrich Software or any part thereof, or any similar or competitive product to Netenrich Software; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into Netenrich Software, or permit direct or indirect access to or use of Netenrich Software in a way that circumvents a contractual limit; (v) use Netenrich Software in the development or marketing of any software, service or other offering that is similar to or competes with any offering or other product of Netenrich; (vi) use any product data as a training set for machine learning or training of any artificial intelligence; (vii) use any means to gain unauthorized access to Netenrich Software, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of Netenrich Software or the data therein; (viii) interfere with or disrupt the integrity or performance of Netenrich Software or its related systems, servers or networks; (ix) share the cybersecurity intelligence and information updates provided through Netenrich Software with third parties, (x) use Netenrich Software to store or transmit malicious code, or (xi) use the product in any harmful or unlawful way, or in any violation of the Netenrich Acceptable Use Policy. Any such forbidden use shall immediately terminate the Trial License to Netenrich Software.
2.6.2. The Customer will not make any content from Netenrich Software available to any third party for any purpose, without Netenrich’s prior written consent, and the Customer will not sell, license or sub-license, distribute, or otherwise make available, Netenrich Software and/or its components, to any third party, in any form. The Customer’s usage of Netenrich Software will be restricted to the Customer Resources alone.
2.7. By registering for the Trial Subscription, the Customer gives Netenrich the right to send communications to the Customer for the purposes of customer service, technical support, promoting new products, or providing solutions in relation to Netenrich Software. Further, the Customer consents to Netenrich sharing its (non-sensitive) account information data with related third parties to give effect to, and fulfill Netenrich’s obligations under, this Agreement.
3. Representations and Warranties
3.1. The Customer represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation; (ii) it is 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) the individual completing the Registration Process is authorized to act on the Customer’s behalf; and (v) upon due acceptance of the Trial Request by Netenrich, this Agreement shall constitute a valid and binding obligation, enforceable against the Customer in accordance with its terms.
3.2. The Customer represents and warrants that it has the full right, power, and authority to consent to and authorize the use of Netenrich Software in relation to the Customer Resources (“Authorization Capacity”), and that it shall immediately notify Netenrich of the occurrence of any event that negates or invalidates the Authorization Capacity.
3.3. The Customer acknowledges and understands that the servicing of the Customer Resources by Netenrich Software may expose vulnerabilities and could result in the disruption of Customer’s systems or business. Accordingly, the Customer agrees that (i) it shall ensure backups of all data contained in or available through the Customer Resources, prior to the use of Netenrich Software; (ii) it shall ensure necessary confidentiality for any information provided by Netenrich Software about the Customer Resources; and (iii) Netenrich shall have no liability towards any of the foregoing.
4. Intellectual Property
4.1. All right, title, and interest in and to the Netenrich Software IP, and any changes, derivatives, corrections, developments, bug fixes, enhancements, updates and other modifications, improvements thereto, is the exclusive property of, and vested solely in, Netenrich. Nothing in this Agreement will confer on the Customer any ownership or interest in any Netenrich Software IP, other than the Trial License set forth herein, and the Customer agrees and acknowledges that it shall not have any right, interest, title, or claim over any aspect of Netenrich Software.
4.2. The Customer understands that the Netenrich Software may include programs, software, or code that are licensed under an open source software (“OSS”) license model, or from a third party licensor (“3PL”). Such OSS and 3PL programs, software, and code are subject to the terms, conditions, and obligations of their respective licenses with Netenrich and might require additional obligations. If Netenrich receives such communications, then Netenrich may need to make changes to its obligations and rights to the Customer.
4.3. Feedback. At its option, Customer may provide feedback and suggestions about the Subscription Products to Netenrich (“Feedback”). If Customer provides Feedback, then Netenrich and its Affiliates may use that Feedback without restriction and without obligation to Customer.
5. Warranties and Disclaimers
5.1. Limitations. Customer will not use the Trial Services for production purposes. Netenrich does not provide service level agreements for Trial Services.
6. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, UNDER NO CIRCUMSTANCE SHALL NETENRICH BE LIABLE TO THE CUSTOMER, IN ANY MANNER, FOR ANY (I) DAMAGES OF ANY KIND, (II) LOST PROFITS; (III) LOSS OF BUSINESS; (IV) LOSS OF GOODWILL, OPPORTUNITY, OR REVENUE; OR (V) ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CUSTOMER’S USAGE OF NETENRICH SOFTWARE, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR THE USE OF NETENRICH SOFTWARE, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NETENRICH’S, OR ITS AFFILIATES OR AUTHORIZED RESELLERS’, TOTAL LIABILITY TO THE CUSTOMER, FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED US$100 (UNITED STATES DOLLARS ONE HUNDRED).
7.1. Protection of Confidential Information. Receiving Party shall not disclose Disclosing Party’s Confidential Information to any third party except as permitted by this Agreement. Receiving Party shall only use Disclosing Party’s Confidential Information to fulfill its obligations under this Agreement. Receiving Party shall use the same degree of care to protect the confidentiality of the Confidential Information that it uses to protect its own confidential and proprietary information (but in no event less than reasonable care). Receiving Party may disclose Confidential Information to its employees, consultants, and agents who reasonably need to know such Confidential Information for purposes of this Agreement, provided that Receiving Party shall ensure that such employees, consultants, and agents are bound by obligations of confidentiality substantially the same as its obligations under this Section 7. Receiving Party shall be liable for any disclosures of Confidential Information by its employees, consultants, and agents in violation of the obligation hereunder.
7.2. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or governmental authority to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall limit any disclosure of Confidential Information pursuant to this Section 7 to the extent strictly necessary to comply with the applicable request by such governmental entity. Any disclosure of Confidential Information pursuant to this Section 7 shall not affect the confidential treatment of such disclosed Confidential Information.
7.3. The Receiving Party agrees that a breach of the obligation hereunder may result in immediate and irreparable harm to Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction, or permanent injunction.
7.4. All data regarding the Customer’s covered personnel, ingested alert or log data, infrastructure assets, and/or cybersecurity assets (including data that Netenrich obtains through the Customer’s use of Netenrich Software), and the Customer Data, will be deemed the Customer’s Confidential Information. All data and information contained within or materially relating to Netenrich Software will be deemed Confidential Information of Netenrich.
8.1. The Customer agrees to indemnify and hold harmless Netenrich, its Affiliates, and their respective officers, directors, employees, agents, licensors and other providers, against all third party claims, actions, proceedings, suits, liabilities, losses, damages, government investigations, fines, actions, costs and expenses (including attorneys’ fees) to the extent arising out of or relating to any breach of the Customer’s obligations, representations and warranties under this Agreement, or its use of Netenrich Software.
8.2. Customer shall pay all damages or settlements resulting from a claim under Section 8.1, but Customer 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.
9. Governing Law & Jurisdiction
9.1. This Agreement and matter connected to this Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of California, USA, without regard to any conflict of law principles that would apply another law, and specifically excluding the United Nations Convention on the International Sale of Goods.
9.2. 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.
10.1. Netenrich may terminate this Agreement, and the Trial License, at any time without any prior notice to the Customer, at its sole discretion, for any reason whatsoever. Upon notification of termination, the Customer shall cease all usage of Netenrich Software.
10.2. The Customer may also terminate this Agreement by requesting the deletion of its trial account with Netenrich Software and ceasing to use Netenrich Software; however, the obligations of the Customer, as indicated in Section 11.7, shall survive any termination of this Agreement.
11.1. Netenrich will not be responsible for any delay, cessation or failure of Netenrich Software, where such event is caused by fire, strike, terrorism, embargo, explosion, earthquake, flood, war, water, the elements, labor dispute, government requirements, acts of God, acts or omissions or cessation of public transportation carriers or suppliers, or other causes beyond Netenrich’s control.
11.2. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect, and enforceable.
11.3. 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.
11.4. The Customer agrees that it shall comply with all applicable laws and regulations of the jurisdiction in which it accesses or uses Netenrich Software. The Customer agrees that it shall not use Netenrich Software for any unlawful purpose.
11.5. Each of the parties is an independent contractor, and neither party is an agent or partner of or joint venturer with the other party, and neither party will, by virtue of this Agreement, have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
11.6. This Agreement is not assignable or transferable by the Customer without Netenrich’s prior written consent; any attempt to do so shall be void. However, Netenrich may transfer this Agreement without seeking the Customer’s consent.
11.7. The following clauses, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination of this Agreement: Section 3 (Representations and Warranties), Section 4 (Intellectual Property), Section 5 (Warranties & Disclaimers), Section 6 (Limitation of Liability), Section 7 (Confidentiality), and Section 8 (Indemnification).
11.8. Netenrich reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, Netenrich will provide at least seven (7) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Netenrich’s sole discretion.
11.9. This Section 11.9 is applicable in the event that Netenrich Software is used by a customer that is the U.S. Government or any of its agencies. Netenrich Software, along with its constitutive elements and documentation, is 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).
11.10. Netenrich Software may be subject to export laws and regulations of the United States, and the Customer represents that neither it nor its Affiliates are named on any denied-party list or located in an embargoed country, under the laws of the United States, and the Customer agrees to prevent any usage that violates any United States export law or regulation.