PRODUCT DESIGN ENGINEERING AGREEMENT
Last Modified: August 19, 2022
This Product Design Engineering (“PDE”) Agreement (“PDE Agreement” or “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 PDE Subscription to Netenrich Software (capitalized terms defined below). Netenrich and the Customer are hereafter jointly referred to as the “Parties”.
Purpose of the PDE Agreement: This PDE Agreement provides for a Customer or potential Customer of Netenrich to obtain access to Netenrich Software free of charge in exchange for providing Feedback to Netenrich on how to improve the Product while allowing the Customer to become familiar with the features and value of the Netenrich Software.
By duly completing the Registration Process, the Customer is submitting a request for access to a PDE Subscription (“PDE Request”) of Netenrich Software. Upon Netenrich’s acceptance of the Customer’s PDE Request, the Customer will be entitled to a PDE License for the use of Netenrich Software, in accordance with the terms and conditions set out in this Agreement, and further in accordance with any existing Master Services Agreement or Master Subscription Agreement (an "MSA”) entered into by and between the parties at a date earlier than the date of this Agreement. This Agreement shall take precedence to the extent of any actual conflict between the terms and provisions in this Agreement and those in the MSA. Definitions in the MSA shall carry the same meaning in this Agreement, unless the definitions are re-defined and/or made broader 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. New Definitions
1.1. “Authorization Capacity” shall have the meaning ascribed to it in Section 3.2.
1.2. “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.
1.3. “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.
1.4. “Effective Date” means the date on which electronic confirmation of Netenrich’s acceptance of the Customer’s PDE Request is sent to the email address identified in the Order Form.
1.5. “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.
1.6. “Netenrich Software” (specifically Netenrich Resolution Intelligence Cloud 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.
1.7. “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).
1.8. “Order Form” means the electronic document containing the specific terms governing the PDE Subscription of Netenrich Software, which is filled in with relevant information by the Customer and submitted to Netenrich.
1.9. “PDE License” shall have the meaning ascribed to it in Section 2.1.
1.10. “PDE Period” means the duration of the PDE Subscription, which shall commence on the Effective Date and extend for the duration indicated in the Order Form.
1.11. “PDE Subscription” means the subscription to a limited use of Netenrich Software, during the PDE Period and in relation to the Customer Resources.
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.
2. Subscription Products and License Grants
2.1. Subject to the terms and conditions of this Agreement, and the acceptance of the Customer’s PDE 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 PDE Period (“PDE License”).
2.2. The completion of the Registration Process and submission of a PDE Request does not entitle the Customer to a PDE Subscription, and Netenrich may, at its sole discretion, choose to either accept or reject a PDE Request. In the process of evaluating a PDE 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 PDE 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 PDE Period.
2.4. The PDE License may be suspended at any point during the PDE 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 PDE 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 PDE 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 PDE 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, Warranties and Disclaimers
3.1. The Customer represents and warrants that: (i) the individual completing the Registration Process is authorized to act on the Customer’s behalf; and (ii) upon due acceptance of the PDE 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.
3.4. The Customer will not use the PDE Services for production purposes. Netenrich does not provide service level agreements for PDE Services.
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 PDE 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. Customer agrees to provide suggestions, enhancement requests, and recommendations (individually and collectively, “Feedback”) to Netenrich regarding Netenrich Software. Feedback shall include informing Netenrich about the performance, ease of use, features that may be missing, and any bugs encountered by Customer during the use of Netenrich Software. A feedback loop shall be established between Customer and Netenrich by (a) Customer meeting with Netenrich on a periodic basis, but at least monthly, or some other period that is mutually agreed upon in writing, and/or (b) Customer providing written feedback when Customer encounters an issue with Netenrich Software. Netenrich and its Affiliates shall use the Feedback without restriction and without obligation to Customer.
5. Limitations 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).
6.1. Netenrich may terminate this Agreement, and the PDE 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.
6.2. The Customer may also terminate this Agreement by requesting the deletion of its PDE account with Netenrich Software and ceasing to use Netenrich Software; however, the obligations of the Customer, as indicated in Section 7.6, shall survive any termination of this Agreement.
7.1. Netenrich will not be responsible for any delay, cessation or failure of Netenrich Software, where such event is caused by fire, strike, terrorism, embargo, pandemic, epidemic, 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.
7.2. 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.
7.3. 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.
7.4. 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.
7.5. 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.
7.6. 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, Warranties, and Disclaimers), Section 4 (Intellectual Property), and Section 5 (Limitation of Liability).
7.7. 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.
7.8. This Section 7.8 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).
7.9. 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./