NTEN Corporation (NTEN), a Delaware corporation with offices as 6001 America Center Drive, Suite 250, San Jose, CA 95002 (“NTEN“, “we” or “us“)
Last updated: September, 2018: Effective as of: September, 2018
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
THE TERMS AND CONDITIONS SET FORTH BELOW (THE “TERMS“) GOVERN YOUR USE OF THE WEBSITE LOCATED AT WWW.NTEN.COM (THE “SITE“) AND THE PRODUCTS AND SERVICES (COLLECTIVELY, THE “SERVICES”). THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “YOUR”) AND NTEN AND GOVERN YOUR ACCESS TO, AND USE OF, THE SERVICES AND THE SITE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, THE SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE. YOUR USE OF THIS SITE AND/OR THE SERVICES WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
WE MAY MODIFY THE TERMS AT ANY TIME, IN OUR SOLE DISCRETION. IF YOU CONTINUE TO USE THE SERVICES AFTER WE’VE NOTIFIED YOU THAT THE TERMS HAVE BEEN MODIFIED, YOU ARE AGREEING TO BE BOUND BY THE MODIFIED TERMS. IF YOU DON’T AGREE TO BE BOUND BY THE MODIFIED TERMS THEN YOU MAY NO LONGER USE THE SERVICES. BECAUSE OUR SERVICES CONTINUE TO EVOLVE, WE MAY CHANGE OR DISCONTINUE ALL OR ANY PART OF THE SERVICES, AT ANY TIME AND WITHOUT NOTICE, IN OUR SOLE DISCRETION.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT: (i) IF YOU ARE ACTING ON YOUR OWN BEHALF, YOU ARE AT LEAST 18 YEARS OF AGE; OR (ii) IF YOU ARE REGISTERING ON BEHALF OF A COMPANY, OR OTHER LEGAL ENTITY, THEN YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE ALL AUTHORITY NECESSARY TO BIND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT TO THESE TERMS. IF ACTING FOR A COMPANY OR OTHER LEGAL ENTITY THE TERMS “YOU” AND “YOUR” WILL REFER TO THAT ORGANIZATION.
1. Definitions. Capitalized terms in the Agreement have the following meanings when used in the Agreement or any exhibit or attachment thereto:
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, another entity. For the purposes of the foregoing, “own,” “owned,” or “ownership” means ownership of fifty percent (50%) or more of the stock or other equity interest entitled to vote for the election of directors or an equivalent body. The entity will be deemed to be an Affiliate only so long as such ownership or control exists.
“Intellectual Property Rights” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.
“Licensee Data” means any data or information provided by You to NTEN for NTEN’s use in providing the Services.
“Order” means any sales order or other order form entered into between You and NTEN or an authorized NTEN reseller or distributor that specifies, at minimum a subscription term, the license fees to be paid by You for Your use of the Services, as well as other terms as applicable to any NTEN products or services.
“Service(s)” means the NTEN.io Services and all its associated systems, networks and services that are licensed under these Terms and Conditions and more fully described at https://NTEN.com/NTEN.io/doc/.
“Subscription Term” means the number of years, as specified in an Order, that You has subscribed to the Service. A Subscription Term commences on the Effective Date of the Agreement.
“Users” or “Named users” means the employees or contractors of You that have been designated by You and have been assigned a user name and login credentials to access the Services in order to act on behalf of You with regard to configuration of Your use of the Services and any customer support assistance from NTEN. You will be liable to NTEN for all acts or omissions of its Users.
2.1 Subscription Term. During the Subscription Term, and subject to the terms and conditions of the Agreement and payment of all applicable fees, NTEN will provide You access to the Services specified in one or more Orders signed by You and NTEN. You may designate in writing to NTEN, You Affiliates that may access and use the Services. You will either establish a single subscription to cover itself and its Affiliates, or specify in writing to NTEN which You Affiliates may enter into a separate Order and purchase a subscription to the Services on the terms and conditions of this Agreement. In this Agreement the term “You” will include Affiliates as applicable.
2.2 Services. You acknowledge and agree that the price of the Services is dependent on the flow of Your Data through the Services and the number of concurrent users accessing the Services. NTEN will measure the flow of Your Data, but will not view or analyze the content of Your Data as it flows through the Services. You will control the nature and amount of Your Data you load into the Services.
3. Your Responsibilities.
3.1 Named Users. On or after the Effective Date, You will designate and be responsible for your Users, and will provide each user with user names and login credentials. You will be responsible for designating Your Users, but a User must either be Your employee, or a contractor or consultant under written agreement with You, and such agreement must contain confidentiality provisions no less restrictive and protective of NTEN Confidential Information as contained in the Agreement. During the term of the Agreement, You may change the individuals that are Users, but You may not exceed the number of Users Your Order. You may request a new Order at any time to increase the total number of Users permitted to access the Services. You are responsible for all access to and use of the Service by Your Users or through the use of any User’s user name and login credentials.
3.2 Use of Service.Only Users may access and use the Service and NTEN reserves the right to audit such use. Users may modify their own individual password, but may not share the password or login credentials with any other person except NTEN authorized support personnel. NTEN is not responsible for any unauthorized access and/or use by any User or by any third party that independently gains access to Your instance of the Service or Your Data. You will notify NTEN promptly if You learn or have reason to suspect there has been any unauthorized use of any User accounts or of any other breach of security of the Service. NTEN will have no liability for any loss or damage arising from Your failure to comply with the provisions of this Section.
3.3 Your Security. At all times during the term of the Agreement, You agree: (a) to maintain and update an industry standard anti-virus program within Your computer systems and networks; and (b) to use commercially reasonable efforts to implement security practices and protocols sufficient to prevent malware from entering its systems or networks.
3.4 Your Data. You are the sole and exclusive owner of all Your Data and any Intellectual Property Rights therein and are solely and exclusively responsible for the content of any Your Data. You grant to NTEN, during the Subscription Term a royalty free, worldwide, non-exclusive, non-transferable license to use and transmit Your Data solely and exclusively for the purpose of providing and improving the Service to You or Your customers. NTEN will use tools to measure the flow of Your Data through the Services and the number of concurrent Users for purposes of determining subscription levels and billing. NTEN will not view or analyze the content of Your Data, and will have no liability or obligation with regard to the content You acknowledge and agree that to the extent any Your Data contains any personally identifiable information or personal data, You will use Your best efforts to keep from disclosing any such information to NTEN or from doing or refraining from any act that would cause NTEN to become a data processor.
4. License Grant and Restrictions.
4.1. License Subject to the terms and conditions of the Agreement, and payment of the applicable fees set forth on the Order Form, NTEN grants to You during the Subscription Term a world-wide, royalty bearing, limited, non-exclusive, non-transferable license, without the right to sublicense, to remotely access and use the Service solely for Your internal business purposes, which may include the transmission of Your Data to Your customers or other third parties.
4.2. Reservation of Rights. The Service is licensed by NTEN to You, not sold, and nothing in the Agreement will be interpreted or construed as a sale. You will not have any rights in or to the Service, except as expressly granted in the Agreement, and NTEN retains all Intellectual Property Rights in and to the Service.
4.3. Restrictions and Your Obligations.
4.3.1. You may not use the Service in any manner that could damage, disable, overburden, or impair servers, networks or other devices running, or connected to, the Services;
4.3.2. You will not and will not permit any third party to: (i) access or use the Service (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service) or; (ii) copy, modify, adapt or create derivative works from any applications or functionalities made available as part of the Service or attempt to discover or gain access to the source code for such software or reverse engineer, modify, decrypt, extract, disassemble or decompile such software except to the extent that You are permitted to do so under applicable law in circumstances under which NTEN is not lawfully entitled to restrict, prevent or limit the same, and then only upon prior written notice to NTEN; or (iii) attempt to interfere with the proper working of the Service and, in particular, must not attempt to circumvent security, license control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Service, software, website, computer system or other devices used in connection with the provision of the Service; or (iv) cause or permit any robot or any automated process to act upon or interact with the Service; or (v) conduct any audit, probe, testing or assessment of the security of the Service or (vi) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of the Service; and
4.3.3. You will at all times comply with all applicable laws, statutes, ordinances, and regulations in any jurisdiction in which You operate, or provide Your Data, or that might apply in connection with Your use of the Services.
5. Fees and Payment Terms
5.1. Fee. You will pay the fees due to NTEN set forth in the Order in U.S. dollars (collectively “Fees”). Unless otherwise set forth in the Agreement, all Fees will be due within thirty (30) days from the date of the invoice. All Fees are non-refundable and non-cancelable. NTEN may notify You if it approaches its usage limits specified in the Order. If You exceed the usage parameters specified in the Order, then NTEN will notify You, and You will have thirty (30) days to enter a new Order for additional usage rights. If You fail to execute a new Order within thirty (30) days, NTEN reserves its rights to suspend the Service or limit Your use of the Service to those in Your existing Order. Subscription Fees are paid annually in advance. NTEN will invoice You thirty (30) days prior to the anniversary of the Effective Date at NTEN’s then current pricing for a new Subscription Term. All undisputed late payments will accrue interest at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is lower. Such interest will be in additional to any other rights and remedies of NTEN.
5.2. Multi-Year Subscription Terms and Termination Fee. In the event You have purchased a Subscription Term in excess of one (1) year, You agree to be bound to pay all Fees for the full Subscription Term specified in the Order. As a convenience to You, NTEN will permit You to pay the full Fees for the Subscription Term in equal annual installments, in advance, commencing on the Effective Date. You agree that the payment of the full Fees through annual installments does not change Your commitment to pay all Fees for the Subscription Term specified in the Order. Notwithstanding the foregoing, You may, upon prior written notice to NTEN, not less than sixty (60) days before the anniversary of the Effective Date, terminate the balance of a Subscription Term by payment to NTEN of a termination fee (“Termination Fee”). The Termination Fee will be equal to the difference between the price actually paid for the Service by You from the Effective Date to the date of termination and NTEN’s list price for the Service ordered by You as of the Effective Date and any applicable anniversary of the Effective Date. By way of example and not limitation, if You ordered a three (3) year Subscription Term and gave notice of Your intent to terminate at the end of year two, the calculation of the Termination Fee would be as follows: On the Effective Date the annual Fee for a one-year Subscription Term to the Service is $100, but You received a 20% discount and commited to pay $240 for the three-year Subscription Term. One year after the Effective Date, NTEN’s Fee for a one-year Subscription Term increased to $110. In year one, You paid $80, but the list price for that year was $100, so the difference of $20 is part of the Termination Fee. In year two, You paid $80, but the list price for year two was $110, so the difference of $30 is part of the Termination Fee. The total Termination fee in the example is $50.
5.3. Disputed Invoices. In the event You reasonably and in good faith dispute any fee(s) set forth on any invoice or record of payment issued by NTEN, You must notify NTEN in writing, setting forth the reasons for and the amount of such dispute (a “Dispute Notice”), no later than ten (10) days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days. Upon resolution of the dispute by the parties, additional amounts due from You, if any, in relation to the applicable invoice must be remitted to NTEN within ten (10) days following such resolution. If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of the Agreement and pursue any or all legal remedies available to it.
5.4. Fee Increases. NTEN reserves the right at any time to increase the Fees for the Service or institute new charges for Services upon reasonable notice to You, such notice to be not less than thirty (30) days prior to such change being effective. Fee increases will not apply to the then current Subscription Term for You and will only apply to new Orders.
5.5. Taxes. Other than federal and state net income taxes imposed on NTEN’s income in the United States, You will bear all taxes, duties, levies, fees and other governmental charges (collectively, “taxes”) resulting from the Agreement and Your use of the Services. You will pay any additional taxes as are necessary to ensure that the Fees received after all such taxes are paid are equal to those specified in the Agreement as if the taxes did not exist.
5.6. Billing Information. You certify that any information provided directly or indirectly to NTEN, including contact information, is accurate. You also agree to maintain and update such information as necessary so that it remains accurate and current. In the event that any information provided is inaccurate or not up-to-date, NTEN reserves the right to suspend the Service or terminate the Agreement.
6. Support Services During the term of the Agreement, and for so long as You are current with Your payment of Fees, NTEN will provide You with Support Services as specified in its then current Support Services Agreement
7.1. Generally. “Confidential Information” will mean confidential or other non-public proprietary information that is disclosed by either party to the other under the Agreement, including without limitation, Software, software code and designs, hardware, product specifications and documentation, financial data, business, marketing and product plans, or technology, and Customer information. You acknowledge and agree that the Service contains proprietary and trade secret information that is the sole and exclusive property of NTEN and is NTEN’s Confidential Information.
7.2. Obligations of Confidentiality. Each party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other party to any third party and to use the Confidential Information of the other party for no purpose other than the purposes expressly permitted by the Agreement. Each party will only permit access to the other party’s Confidential Information to those of its or its Affiliates’ employees, contractors and advisors having a need to know and who have signed or are bound by confidentiality obligations or agreements containing terms at least as restrictive as those contained in the Agreement. Each party will maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information of the other party with at least the same degree of care as it uses to protect its own Confidential Information, but in no event with less than reasonable care.
7.3. Exclusions from Obligations. A party’s obligations of confidentiality under the Agreement will not apply to information which such party can document the information (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law, (ii) was known to the party prior to the time of disclosure without the breach of any agreement or fiduciary duty or the violation of any law, (iii) is proven by contemporaneous records to be independently developed by the party prior to receiving such Confidential Information and without use or reference to the Confidential Information.
7.4. Legally Required Disclosure. In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party then such party will provide the other party written notice of any such requirement immediately after learning of any such requirement, and take commercially reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding. Any disclosure will be the minimum disclosure as recommended by a party’s legal counsel and no disclosure will remove the obligations of confidentiality to any remaining Confidential Information nor permit any other disclosure of the Confidential Information in other circumstances.
7.5. Injunctive Relief. Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of the Agreement will cause the other party irreparable damage for which remedies at law may be inadequate. Accordingly, the non-breaching party will have the right to seek an immediate injunction in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to the non-breaching party.
7.6. Return of Confidential Information. Upon written request by either party hereto, the other party will promptly return all documents and other tangible materials representing the requesting party’s Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or records created in the ordinary course of business that are kept by a party and used only for contract compliance and enforcement purposes subject to continuing confidentiality.
8. Third Party Sites.
8.1. Third Party Sites. The Service may link You to other sites on the internet or otherwise include references to information, documents, materials and/or services provided by third parties. You acknowledge and agrees that all use of third party sites is at Your sole risk and that NTEN is not liable or responsible for any use of such third party sites or the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such third party sites, or for errors or omissions in any references to other parties or their products and services.
9. Term and Termination
9.1. Term and Renewals. The initial Subscription Term will be as set forth in the Order (“Initial Term”), unless earlier terminated as provided in the Agreement. The Initial Term will automatically renew for successive one (1) year Subscription Terms, at NTEN’s then current Fee for a Subscription Term, unless either party notifies the other not less than ninety (90) days before the end of the then current Subscription Term.
9.2. Termination. Either party may terminate the Agreement effective immediately if the other party is in breach of any material obligation, representation or warranty under the Agreement and fails to cure such breach (if capable of cure) within thirty (30) days after receiving written notice specifying the nature of the breach from the non-breaching party. Either party may immediately terminate the Agreement upon written notice at any time if (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt, (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within 60 calendar days, (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law, (iv) the other party discontinues its business, (v) a receiver is appointed over all or substantially all of the other party’s assets or business, or (vi) the other party is dissolved or liquidated or otherwise ceases to function as a going concern.
9.3. Suspension. NTEN may suspend the Services or any portion thereof for (1) emergency network repairs, threats to or actual breach of network security; (2) any failure to pay undisputed Fees or any material breach of the Agreement by You (3) any legal, regulatory, or governmental prohibition, order or decree affecting the Service. NTEN will promptly notify You of any interruption or termination.
9.4. Effects of Termination. Within thirty (30) days (or earlier upon NTEN’s reasonable written request) after the date of termination of the Agreement for any reason, You will (i) pay NTEN Fees for all Services up to the effective date of such termination and all other amounts owed by You to NTEN under the Agreement including, but not limited to, all Fees owed by You as of the effective date of termination according to the payment schedule set forth in the Order, regardless of the date of termination; In the event of the expiration or termination of the Agreement, You will immediately terminate all access to and use of the Service, and pay any Fees or other amounts owed to NTEN. Each party will have thirty (30) days to return or destroy all Confidential Information it holds that belongs to the other party.
9.5. Survival. Upon expiration or termination of the Agreement the provisions of Sections 1, 3.4, 4.2, 5, 7, 9.4, 9.5, 10, 11, 12, and 16 will survive and any other provisions, which expressly or by implication are intended to survive will survive.
10. Waranty and Disclaimers.
10.1. Warranty. NTEN warrants that it will use commercially reasonable efforts to make the Service available at all times except for regularly scheduled maintenance, and that the Service will operate or be provided in material conformity with the applicable NTEN specifications for the Service in Your Order. NTEN warrants that the functionality of the Service will not be materially decreased during a Subscription Term. For any breach of this warranty, Your sole and exclusive remedy, and NTEN’s sole and exclusive liability, will be for NTEN to correct any reported failure in the Service causing a breach of this warranty. NTEN will have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any material failure or breach. Subject to the foregoing warranty, NTEN reserves the right, for any reason, in NTEN’s sole discretion and without notice to You, to modify or change the Service, or to provide additional features or functions, or to enhance, delete or modify its format or presentation.
10.2. Disclaimer of Warranties. EXCEPT FOR NTEN’S EXPRESS WARRANTY, YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NTEN AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NTEN AND ITS LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NTEN OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, EXCLUDING SUCH COSTS AS APPLICABLE TO THE SERVICE ITSELF. THE APPLICATION IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
11. Limitation of Liability
11.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT OR THE INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE AND ANY NON-ECONOMIC LOSSES, EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. Limitation of Damages. EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT, INFRINGEMENT OR MISUSE OF CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S INDEMNITY OBLIGATIONS FOR THIRD PARTY CLAIMS HEREIN, NEITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY YOU TO NTEN DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL EITHER PARTY’S INDEMNITY LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF ONE MILLION DOLLARS ($1,000,000).
11.3. Allocation of Risk and Material Term. THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
12.1. Definitions.For purposes of this Section on indemnity, the following terms will have the meanings defined herein:
“Claims” means all third party claims, actions, demand, and legal proceedings of any kind.
“Damages” means all liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses payable to a third party and the indemnified party’s reasonable legal support costs and expenses.
12.2. NTEN Indemnity. Providing You have paid the Fees for the Services, NTEN will defend, indemnify and hold You and Your Affiliates and their respective successors, assigns, officers, directors and employees harmless from and against any and all Claims and Damages based upon or arising out Claims that the Software infringes any patent issued by the United States, Canada, European Union or a country therein, Switzerland or Japan, or any copyright, trade mark, trade secret, or any other proprietary right held by any third party. NTEN’s indemnity obligations will not apply to any infringement claims arising out of, or resulting from: (i) any Service, product or service developed in accordance with Your specifications; (ii) any modifications of the Service made by anyone other than NTEN if the alleged infringement relates to such modification, (iii) a combination of the Service with other software, products, services, processes or materials not provided by NTEN where the alleged infringement relates to such combination, (iv) Your continued alleged infringing activity, after having been notified by NTEN that such activity is or may be infringing; (v) use of the Service not strictly in accordance with this or any other written Agreement signed by an officer of NTEN; (vi) any default or failure to pay undisputed Fees; or (vii) any “open source” software included in or used with the Services.
12.3. Injunction. If the use of any Services furnished hereunder is enjoined as a result of such suit, or if the use of any Services furnished hereunder is, or in the opinion of NTEN is likely to be, enjoined, NTEN will, at NTEN’s option, (i) obtain for You the right to use the Services; or (ii) will substitute an equivalent product reasonably acceptable to You and extend this indemnity thereto or, (iii) at NTEN’s discretion, terminate the Agreement and reimburse You any pre-paid Fees for the then current Subscription Term. This remedy does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright to any Services of Your design or formula.
12.4. Exclusive Remedy. This Section 12 states NTEN’s sole and exclusive liability, and Your sole and exclusive remedy, for the actual or alleged infringement of any third party Intellectual Property Right by NTEN.
12.5. Your Indemnity. You agree to defend, indemnify, and hold harmless NTEN and its respective directors, officers, employees, representatives, agents, successors, assigns, Licensees and distributors from and against any and all Claims and Damages arising out of or in connection with: (i) Your breach of this Agreement; (ii) any Claims against or arising from Your Data; (iii) any Claim that an act or omission by You gave rise to any death or bodily injury or damage to any tangible or personal property; (vi) any violation by You of any governmental or regulatory laws, rules, ordinances, or regulations; or (iv) Claims arising from Your use of the Services.
12.6. Procedure. In the event of any Claims, for which a party seeks indemnification as set forth in this Section 11, the indemnified party will: (i) promptly notify the indemnifying party, (ii) at the indemnifying party’s expense, reasonably cooperate with the indemnifying party in the defense thereof, and (iii) not settle any such Claims without the indemnifying party’s consent which the indemnifying party agrees not to unreasonably withhold or delay. The indemnifying party will keep the indemnified party reasonably informed at all times as to the status of any claim. No settlement will include any admission of fault or any public statement by the indemnified party without the indemnified party’s prior written consent which will not unreasonably be withheld or delayed.
13. US Government Rights. The Service is a “commercial item” as that term is defined at FAR 2.101. If You is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), NTEN provides the Services, including any related software, technology, technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Service), only those rights in technical data and software customarily provided to the public as defined in the Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in the Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency will obtain only those rights in technical data and software customarily provided to the public as defined in the Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with NTEN to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under the Agreement.
14. Export Control. You acknowledge and agree that You will not import, export, or re-export, directly or indirectly the Service to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of various other countries. You further agree to defend, indemnify and hold NTEN harmless for any losses, costs, claims or other liabilities arising out of Your breach of this Section.
15. Feedback. During the term of the Agreement You may provide NTEN with oral feedback and/or written feedback related to the Services or NTEN products, services or technology, including, but not limited to, a report of any errors which You may discover in the Service, products, services or technology or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to NTEN (“Feedback”) will be the property of NTEN. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback it gives to NTEN including the related Intellectual Property Rights, and agree to assist (at NTEN’s expense) in perfecting and enforcing such rights.
16.1. Force Majeure. Except for an obligation to pay Fees, the parties hereto will be excused from any failure to perform any obligation hereunder to the extent such failure is caused by war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God, or any causes of like or different kind beyond the control of the parties, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate the Agreement by written notice to the non-performing party if such condition continues for a period of thirty (30) days
16.2. Assignment. You may not assign, by operation of law or otherwise, Your rights or obligations under the Agreement without the express written consent of NTEN, which will not unreasonably be withheld or delayed. Notwithstanding anything to the contrary in the Agreement, in no event will any such assignment result in an expansion of the scope of the license granted herein. In particular, such assignment will not create rights that did not exist prior to the assignment, nor will such assignment result in an expansion of the scope of the use specified in any Order.
16.3. Severability, Entire Agreement, Waiver. In the event any provision of the Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of the Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the subject matter herein, whether written or oral. The failure of NTEN to exercise or enforce any right or provision of the Agreement does not constitute a waiver of such right or provision, which will still be available to NTEN.
16.4. No Third Party Beneficiaries. Nothing in the Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of the Agreement.
16.5. Marketing. You agree to permit NTEN’s reasonable reference to Your status as a user of the Service, including captioned quotations in product literature or advertisements, websites, articles, press releases, marketing literature, presentations and the like, and occasional use as a reference for potential new users.
16.6. No Solicitation. To promote an optimum working relationship, the parties agree in good faith not to knowingly solicit for employment, directly or indirectly, employ or otherwise engage any employee who has been involved in rendering or receiving Services hereunder as an employee of the other party without that party’s prior written consent. This restriction will apply during the term of and for a period of one (1) year after the termination of the Agreement. The provisions of this Section will not restrict the hiring of any person who: (i) has not been involved in rendering or receiving services, on behalf of NTEN or You, under the Agreement; (ii) as of the time of hiring, has not been an employee of the other party at any time during the preceding one hundred eighty (180) days; or (iii) responds to a public notice for employment.