Last Modified: Jan 31, 2023
This is a legally binding agreement between you and NetSpring Data, Inc., a Delaware corporation having its principal place of business at 805 Veterans Blvd, Suite 305, Redwood City, CA 94063 (“NetSpring”). Please carefully read the terms and conditions of this NetSpring Subscription Agreement (collectively with any schedules and/or exhibits hereto, all Order Documents (as defined below), and any future modifications hereof, this “Agreement”). By registering for and/or accessing, browsing, installing, copying, loading, using or subscribing to the Software (as defined below), the Documentation (as defined below) and/or the Services (as defined below), or by clicking “I Agree,” or by executing an Order Document, or otherwise affirmatively manifesting your intent to be bound by this Agreement, you signify that you have read, understood, and agree to be bound by this Agreement. If you do not agree to all of the terms of this agreement, or if you do not have full legal authority to accept and enter into this Agreement, then you may not access, browse, install, copy, load, use or subscribe to the Software or the Documentation in any manner.
If you are agreeing to be bound by this Agreement (in any of the manners set forth above) on behalf of a company, organization, or other entity, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to this Agreement; (ii) have read this Agreement; (iii) understand this Agreement; and (iv) agree to this Agreement on behalf of such entity. As used in this Agreement, each of “Customer” and “you” means “you, an individual, on behalf of yourself and the entity customer you represent,” and “your” has the corresponding meaning. Customer and NetSpring may each be referred to herein individually as a “Party,” and, collectively, as the “Parties.”
NetSpring reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time. You agree to review this Agreement periodically for changes. When NetSpring changes the terms hereof in a material manner, it will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to this Agreement. If any such revision is unacceptable to you, your only remedy is to terminate any NetSpring user account you may have and to stop accessing, browsing, installing, copying, loading, using and subscribing to the Software, Documentation and Services.
“Affiliate” means, with respect to a party, any legal entity (such as a corporation, partnership, or limited liability company) that controls, is controlled by, or is under common control with such party. For the purposes of this definition, the term “control” means (i) beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) a fifty percent (50%) or greater interest in the net assets or profits of a partnership or other business organization without voting securities.
“Applicable Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction applicable to the Parties’ performance of their obligations or exercise of their rights under this Agreement.
“Authorized Reseller” means a reseller, distributor or other partner authorized by NetSpring to license or otherwise make available Software, Documentation, and/or Services.
“Authorized Server” means NetSpring’s or its third-party providers’ servers, or, if authorized by NetSpring to be used by Customer in connection with the Software pursuant to this Agreement, Customer’s or its third-party provider’s server.
“Documentation” means any manuals, instructions, help files or other documents or materials that NetSpring provides or makes available to Customer that describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“End Users” means Customer’s employees, contractors and representatives, in each case, that are authorized to access and use the Software and the Documentation on Customer’s behalf.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including, without limitation, the trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State.
“Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible intellectual property and similar proprietary rights in any jurisdiction throughout the world, including any and all (i) rights associated with works of authorship, including copyrights and moral rights, (ii) trademark, service mark, trade dress, logos, domain name and trade name rights and similar rights and all goodwill associated with any of the foregoing, (iii) trade secret rights and know-how, (iv) inventions, patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights and other similar proprietary rights, whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, applications, renewals, reversions, restorations, extensions, continuations, continuations-in-part, divisions, reexaminations or reissues of any of the foregoing, now or hereafter in force (including all rights in any of the foregoing).
“License Fees” means the fees due for the license to the Software, as set forth in the applicable Order Document.
“Order Form” means any order form that is signed by authorized representatives of both Parties (or by representatives of Customer and of an Authorized Reseller), expressly references this Agreement, and specifies the Software and any Services to be provided to Customer, along with the pricing, subscription term, and other specific terms and conditions applicable to same.
“Purchase Order” means a purchase order for Software and any Services that expressly references this Agreement, is submitted to NetSpring (or to an Authorized Reseller) by Customer, and is accepted by NetSpring (or the applicable Authorized Reseller).
“Quote” means a written offer that expressly references this Agreement, specifies the Software and any Services to be provided to Customer (and their corresponding price(s)), is provided to Customer by NetSpring (or by an Authorized Reseller), and is accepted by Customer.
“Services” means any installation, configuration, training, technical support and/or maintenance services and related documentation, in each case, as ordered by Customer and/or as set forth on the applicable Order Document.
“Software” means the software offering to be made available to Customer by NetSpring by license under this Agreement, as ordered by Customer via an Order Document, including any updates, upgrades and/or patches to such software.
“Customer Content” means any and all data or materials supplied, provided or otherwise made available by Customer in connection with Customer’s use of the Software and/or the Services.
2. Orders and Payment
2.1 Orders. Customer may place orders by issuing Purchase Orders, by accepting Quotes, or by signing Order Forms (collectively, “Order Documents”). An Order Document will be deemed accepted by Customer upon its execution by an authorized representative of Customer. Each Order Document is subject to acceptance by NetSpring (or by an Authorized Reseller), as evidenced by the signature of an authorized representative of NetSpring (or of the applicable Authorized Reseller). To the extent the various writings that comprise this Agreement conflict, the order of precedence will be as follows: the body of this Agreement, any schedules and/or exhibits hereto, any Order Form(s), any Quote(s), and any Purchase Order(s), in each case, unless the document that does not prevail according to the foregoing (the “Secondary Document”) references the applicable provision in the otherwise prevailing document (the “Primary Document”) and expressly provides that such provision will be overridden, in which case the conflicting provision in the Secondary Document will control for the purposes of such Secondary Document only. Notwithstanding anything to the contrary, to the extent there is a conflict between the terms of the body of this Agreement and the terms of any Order Document signed by an authorized representative of an Authorized Reseller, the terms of the document most protective of NetSpring will control.
2.2 License Fees. Subject to this Section 2.2, Customer will pay NetSpring (or an Authorized Reseller) the License Fees set forth in the applicable Order Document. License Fees are based on one or more of (i) Maximum Active Data (measured in gigabyte) – “Maximum Active Data” means the maximum volume of data processed by the Software at any point in time, or (ii) Query Volume – “Query Volume” means the number of queries processed by the Software in a specified period of time, or (iii) a flat platform fee that is independent of volume of data or number of queries. If pricing is based on Maximum Active Data or Query Volume, Customer acknowledges and understands that, if Customer’s use of the Software exceeds the Maximum Active Data or Query Volume specified in the applicable Order Document (an “Overage”), the Software’s performance may be degraded. In the event of an Overage, or if the Customer believes it will use the Software in a manner that would constitute an Overage at any point in time during the applicable Order Document’s term (the “Order Term”), it is recommended that Customer contact NetSpring (or an Authorized Reseller, as applicable) to re-scope the parameters of the Software and adjust its order to reflect a higher Maximum Active Data or Query Volume (“Adjusted MAD-QV”) for the remainder of the Order Term. In such case, NetSpring (or the applicable Authorized Reseller) will invoice Customer, and Customer will pay NetSpring (or the applicable Authorized Reseller), the difference between (i) the License Fees already paid by Customer hereunder (or zero, if none) and (ii) the License Fees that correspond to the Adjusted MAD-QV and the Order Term, on a pro-rated basis to account for the remainder of the Order Term. NetSpring reserves the right to invoice Customer in accordance with the mechanism set forth in the preceding sentence in the event that NetSpring becomes aware of an Overage. Customer will not receive any refund, partial refund, credit, or exchange for any use below the Maximum Active Data or Query Volume specified in the applicable Order Document, nor below the Adjusted MAD-QV, if applicable.
2.3 Invoices. NetSpring will invoice Customer the annual cost of the Software for the first year of the Order Term, as well as any Service Fees (as defined below), on or around the Software Subscription Start Date set forth in the applicable Order Document. If the applicable Order Term is longer than one (1) year, NetSpring will invoice Customer the annual cost of the Software for each additional year making up the Order Term on each one (1) year anniversary of the Software Subscription Start Date, unless the Customer notifies NetSpring at least sixty (60) days before such date that it wishes to terminate the Order Document. NetSpring will invoice Customer for any Overages and/or to account for an Adjusted MAD-QV in accordance with Section 2.2. In the case where Customer ordered Software, Documentation, and/or Services from an Authorized Reseller, the Authorized Reseller’s invoicing terms will apply.
2.4 Taxes and Other Assessments. All payments, fees, and other charges payable by Customer to NetSpring under this Agreement are exclusive of all federal, state, local, and foreign taxes, levies, tariffs, duties, value-added taxes, export and import fees, withholding, and all other taxes or government assessments (collectively, “Taxes”). Customer will bear and be responsible for the payment of all Taxes incurred for the Software and any Services ordered by Customer (except taxes based on NetSpring’s net income), unless Customer timely provides NetSpring with a tax exemption certificate acceptable to the applicable taxing authorities. Amounts paid by Customer to NetSpring will be grossed-up for any non-refundable withholding tax imposed by a foreign governmental entity on amounts payable hereunder. Customer will provide NetSpring with such evidence as NetSpring may reasonably request to establish that all Taxes have been paid. In the case where Customer ordered Software, Documentation, and/or Services from an Authorized Reseller, the Authorized Reseller’s taxation terms will apply.
2.5 Terms of Payment. All payments made to NetSpring in connection with this Agreement will be in U.S. Dollars. Payment for Software and Services will be due thirty (30) days from the invoice date, unless otherwise agreed in writing by the Parties, with interest accruing thereafter on amounts not paid when due at the lesser of 1.5% per month and the maximum permitted by Applicable Law. NetSpring may, in its discretion, suspend Customer’s access to and use of the Software, Documentation, and/or Services until the applicable invoice is paid in full. No part of any amount payable to NetSpring hereunder may be reduced due to any counterclaim, set-off, adjustment, or other right which Customer might have against NetSpring, any third party, or otherwise. Payment will be made free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by NetSpring. In the case where Customer ordered Software, Documentation, and/or Services from an Authorized Reseller, the Authorized Reseller’s payment terms will apply.
3. Support and Other Professional Services
If Customer has ordered any Services via an Order Document, NetSpring will provide such Services; provided that Customer pays the corresponding fees (“Service Fees”) when due, in accordance with Section 2.5.
4. Permitted Use and Restrictions
4.1 Software and Documentation License. NetSpring hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Software and Documentation, solely for Customer’s internal business purposes, during the Order Term.
4.2 Restrictions. Customer will not, will ensure that each End User does not, and will not permit any third party to, use the Software other than as permitted in this Agreement and in the Documentation. Except to the extent expressly permitted in this Agreement, and without limiting the generality of the foregoing sentence, Customer will not: (i) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to derive or obtain any source code, structure, algorithm, process, technique, technology, know-how, or idea embodied by, underlying, or contained in the Software; (ii) remove any product identification or proprietary rights notices, legends, symbols or labels from the Documentation; (iii) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or otherwise provide access to the Software or the Documentation to any person or entity that is not an End User; (iv) alter, modify or create derivative works of any Software or Documentation (including the underlying source code of the Software) in any way, including, without limitation, customization, translation or localization; (v) copy all or any portion of the Software or the Documentation; (vi) use the Software on any server (including, without limitation, any remote server) that is not an Authorized Server; (vii) attempt to create a substitute or similar product or service through use of, or access to, the Software or Documentation; (viii) use the Software to store, process, or transfer any data or other information in a manner that is restricted under Export Control Laws; (ix) use the Software or Documentation on behalf of or for the benefit of any entity or person that is prohibited from using the same by Applicable Law; or (x) use the Software or Documentation in violation of Applicable Law. Customer will not use the Software to process any “protected health information” as defined under the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder (“HIPAA”). Customer will not permit any other person or entity to take any actions which Customer is prohibited from taking pursuant to this Agreement, nor will Customer facilitate any such actions. Customer is responsible for ensuring the End Users comply with all relevant terms of this Agreement, and any failure on an End User’s part to comply will constitute a breach by Customer.
4.3 Third-Party Software. The Software may contain copyrighted software of NetSpring’s suppliers and/or licensors (“Third-Party Proprietary Software”). All third-party suppliers and licensors retain all rights (including all copyright and other Intellectual Property Rights), title and interest in and to such Third-Party Proprietary Software and all copies thereof. Customer’s use of any Third-Party Proprietary Software will be subject to the terms and conditions of this Agreement, and, by entering into this Agreement, Customer represents and warrants to NetSpring that is has read, understood, and agrees to be bound by the applicable restrictions and other terms and conditions set forth in any Third-Party Proprietary Software documentation or printed materials, including, without limitation, any end user license agreement or other end user licensing terms applicable to such Third-Party Proprietary Software. Except as expressly provided herein, in no event will NetSpring be construed as being (or acting as) an intermediary between any provider of Third-Party Proprietary Software or its Affiliates on the one hand and Customer on the other hand. Additionally, the Software may include or utilize third-party open source software components (“Open Source Software,” and, collectively with Third-Party Proprietary Software, “Third-Party Software”). Customer’s rights to any such Open Source Software will be under the terms and conditions of the applicable open source license. CUSTOMER UNDERSTANDS AND ACKNOWLEDGERS THAT ANY THIRD-PARTY SOFTWARE THAT IS PROVIDED HEREUNDER IS PROVIDED AS-IS, WITHOUT ANY OBLIGATION OR WARRANTIES OF ANY KIND, AND NETSPRING SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR, AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO, ANY THIRD-PARTY SOFTWARE.
5. Reservation of Rights
Copies of the Software and Documentation are licensed and not sold. NetSpring and its suppliers and licensors reserve all rights (including all Intellectual Property Rights), title, and interest in and to the Software and Documentation that are not expressly granted to Customer herein. There are no implied licenses granted by NetSpring under this Agreement. Except as specified above, Customer will have no rights in or to the Software or Documentation.
6. Mobile Applications.
6.1 General. NetSpring may make Software available via a mobile device (“Mobile Application(s)”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. NetSpring does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. NetSpring hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use a compiled code copy of the Mobile Applications, solely for Customer’s internal business purposes, during the Order Term. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by Applicable Law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that NetSpring may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code, features or functionality that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party EULA, if any, authorizing use of such code, features or functionality. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and NetSpring or its suppliers and/or licensors retain all right, title, and interest in and to the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
6.2 Mobile Applications from Apple App Store. The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You and NetSpring acknowledge and agree that this Agreement is solely between you and NetSpring, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the Usage Rules set forth in the Apple Media Services Terms and Conditions. You and NetSpring acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to NetSpring as provider of the Apple-Sourced Software. You and NetSpring acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and NetSpring acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, NetSpring, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and NetSpring acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
Customer may provide, at its discretion, or NetSpring may request, input regarding the Software, Documentation and/or Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of a portion of the Software, Documentation and/or Services or another service or product (collectively, “Feedback”). Customer acknowledges and agrees that any Feedback will be considered Confidential Information of NetSpring, and Customer hereby assigns to NetSpring all right, title and interest in and to such Feedback. To the extent that the foregoing assignment cannot, as a matter of law, be accomplished, Customer agrees to grant and hereby grants to NetSpring an exclusive, perpetual, irrevocable, royalty free, sub-licensable (through multiple tiers of sublicensees), transferable, worldwide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback. In all cases, NetSpring will be entitled to use the Feedback or any portion thereof for any purpose, without restriction or remuneration of any kind. Customer further acknowledges that, by acceptance of Customer’s submission of Feedback, NetSpring does not waive any rights to use similar or related ideas previously known to NetSpring, or developed by its employees, or obtained from sources other than Customer.
8.1 Data Usage. Customer hereby grants to NetSpring a non-exclusive, royalty-free, fully paid up, worldwide license to access and use the Customer Content to: (i) provide the Software, and, if applicable, the Services to Customer; (ii) improve the Software and Services and/or create other products and services; and (iii) compile statistical, usage, and performance information related to the Software, and, if applicable, the Services.
8.2 Data Privacy. Customer acknowledges that it is solely responsible for compliance with any and all data privacy laws, rules, and regulations applicable to the Customer Content. To the extent any Customer Content is “personal information” as such term is defined under the California Consumer Privacy Act of 2018 (“CCPA”), NetSpring will retain, use and disclose such personal information solely for the purposes of performing its obligations under this Agreement or as otherwise permitted by the CCPA.
8.3 Rights to Data. Customer represents and warrants that: (i) it has all rights to grant NetSpring any and all data and rights granted under and/or in connection with this Agreement; (ii) such grants are made in compliance with all Applicable Laws; and (iii) such grants will not cause NetSpring to be in violation of any Applicable Law.
8.4 Data Backup. The Software and Services do not replace the need for Customer to maintain regular data backups or redundant data archives. NETSPRING HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF ANY OF CUSTOMER’S DATA.
9.1 Confidential Information. As used in this Agreement, the term “Confidential Information” means any information that is not generally available outside of the disclosing Party, and that is disclosed by the disclosing Party or otherwise obtained by the receiving Party, in each case, as a result of and/or in connection with this Agreement and/or the activities contemplated hereunder, whether in written, oral, graphic, machine-readable or other form, including but not limited to that which relates to benchmarks, performance data or test results, computer software (including but not limited to source and object code), computer hardware, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics, processes, data, designs, drawings, hardware configuration, research, development, and other technical, business, financial, customer, marketing, and product development plans, forecasts, strategies, agreements with third parties, and information or data obtained from third parties in confidence. Without limiting the generality of the foregoing, NetSpring’s Confidential Information will be deemed to include, regardless of marking, all portions of the Software, Documentation and Services.
9.2 Use of Confidential Information. The receiving Party will use the disclosing Party’s Confidential Information only for the purposes of performing its obligations and exercising its rights under this Agreement, and not for any other purpose. Subject to Section 9.3, the receiving Party will hold in confidence, and will not disclose to any person or entity any Confidential Information. The receiving Party will use at least the same degree of care in handling the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information, but, in any event, no less than a reasonable standard of care. The receiving Party will notify the disclosing Party in writing immediately upon becoming aware of the occurrence of any unauthorized use or disclosure of the disclosing Party’s Confidential Information.
9.3 Affiliates, Employees, and Contractors. The receiving Party may disclose Confidential Information to those of its Affiliates, directors, advisors, employees, or contractors (collectively, “Representatives”) who have a need to know such Confidential Information in order to fulfill the receiving Party’s obligations or exercise the receiving Party’s rights under this Agreement; provided that (i) each such Representative is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein and (ii) under no circumstances may the receiving Party disclose Confidential Information to competitors of the disclosing Party. The receiving Party will, at its sole expense, take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of Confidential Information, and the receiving Party will be solely responsible for any breaches of the terms of this Article 9 by its Representatives.
9.4 Exceptions. The obligations of the receiving Party specified in this Article 9 will not apply, and the receiving Party will have no further obligations, with respect to any of the disclosing Party’s information to the extent that such information is: (i) generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the receiving Party; (ii) in the receiving Party’s possession at the time of disclosure otherwise than as a result of the receiving Party’s breach of any legal obligation; (iii) known to the receiving Party through disclosure by a source other than the disclosing Party that, to the knowledge of the receiving Party, has the legal right to disclose such information; or (iv) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information. Additionally, the receiving Party may disclose Confidential Information to the extent that it is required to be disclosed by the receiving Party to comply with a court order or Applicable Laws; provided that the receiving Party (a) gives prompt written notice of such requirement to the disclosing Party to enable it to seek a protective order or other appropriate remedy, and (b) takes commercially reasonable and lawful actions to avoid and/or minimize the extent of such disclosure and to obtain confidential treatment for any disclosed Confidential Information.
9.5 Publicity. Neither Party will issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement or referencing the other Party without the prior written approval of the other Party. Notwithstanding the foregoing, Customer hereby authorizes NetSpring to use and display Customer’s name and logos solely to refer to Customer as a customer of NetSpring.
10. Limitation of Liability
10.1 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF NETSPRING AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS ARISING IN ANY WAY OUT OF THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES, OR THEIR USE OR DISPOSITION, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY.
10.2 CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NETSPRING NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS WILL BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO LOSS OR INACCURACY OF, OR DAMAGE TO, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE, OR IMPAIRMENT OF OTHER ASSETS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT NETSPRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Limited Warranties
11.1 Software Warranty. For a period of ninety (90) days from delivery to Customer, NetSpring warrants that the Software will, under normal use, materially conform to the applicable Documentation. Customer’s sole remedy, and NetSpring’s sole liability, for a failure of the Software to comply with the foregoing warranty will be: (i) for NetSpring to repair or replace the non-conforming Software; or (ii) if repair or replacement is not reasonably practicable in NetSpring’s sole discretion, to terminate any applicable Order Document (without liability to NetSpring) and to grant Customer a refund of any payments actually made by Customer to NetSpring for such Software. This warranty will not apply in the event of: (a) use of Software not in accordance with the Documentation; (b) any Overage; (c) accident for which NetSpring is not responsible; (d) modification of the Software by anyone, or in any manner, not approved by NetSpring; (e) physical or operating environment not in accordance with the specifications or Documentation; (f) improper maintenance by anyone not approved by NetSpring; or (g) failure caused by a product or hardware not provided or approved by NetSpring, or by a server (including, without limitation, any remote server) that is not an Authorized Server. NetSpring does not warrant that use of Software will be uninterrupted or error-free.
11.2 Services Warranty. NetSpring warrants that it will perform Services in a professional manner, using reasonable care and skill in accordance with industry standards.
11.3 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS ARTICLE 11, NETSPRING DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF NETSPRING KNOWS OR SHOULD HAVE KNOWN OF SUCH PURPOSE), PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. NETSPRING IS NOT LIABLE FOR ANY WARRANTY OR REPRESENTATION MADE BY AN AUTHORIZED RESELLER OR ANY PARTY OTHER THAN NETSPRING. EXCEPT PURSUANT TO THE LIMITED WARRANTIES SET FORTH IN THIS ARTICLE 11, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT NETSPRING AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE, DOCUMENTATION, AND SERVICES, INCLUDING, WITHOUT LIMITATION, UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. EXCEPT PURSUANT TO THE LIMITED WARRANTIES SET FORTH IN THIS ARTICLE 11, NETSPRING AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, OR SERVICES, OR ANY RESULTS OF USE THEREOF, WILL BE FREE OF DEFECTS, ERRORS, OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT, OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
12.1 NetSpring Indemnity.
(a) Indemnification Obligations. NetSpring will, at its own option and expense, defend and settle any action, suit, or other proceeding (collectively, “Claim”) brought by a third party against Customer or Customer’s Affiliates, or its or their respective officers, directors, agents, or employees (collectively, the “Customer Indemnitees”) alleging that the Software infringes any Intellectual Property Right of such third party, and will indemnify and hold harmless the Customer Indemnitees from and against all damages, costs, and reasonable expenses (including but not limited to attorneys’ fees and settlement costs) that are finally awarded against the Customer Indemnitees by a court of competent jurisdiction or agreed to in a settlement.
(b) Exclusions. NetSpring’s obligations under Section 12.1(a) do not apply to the extent that a Claim arises from: (i) Software or any portion thereof that (1) is or was developed, in whole or in part, in accordance with Customer’s specifications or instructions, if the Claim relates to such Customer specifications or instructions, (2) was modified by any party not authorized by NetSpring (including Customer), if the Claim relates to such modification, or (3) is or was combined or integrated with other products (hardware or software), processes, or materials (including Customer products or other products provided by Customer or any third party), if the Claim relates to such combination; or (ii) Customer’s continued allegedly infringing activity after being notified thereof in writing by NetSpring or by a third party or after receiving a modification delivered at NetSpring’s expense that would have avoided the alleged infringement. Subsections (i) and (ii) of this Section 12.1(b) will be collectively referred to as the “Excluded Claims.”
(c) Effect of Infringement. In the event that the Software is held in a suit or proceeding to infringe any Intellectual Property Right of a third party and the use or licensing of such Software is enjoined, or NetSpring reasonably believes that it is likely to be found to infringe or likely to be enjoined, then NetSpring may, in its sole discretion and at its cost and expense: (i) procure for Customer the right to continue using such Software in accordance with this Agreement; (ii) modify such Software so that it becomes non-infringing; or (iii) replace such Software with a product that is substantially similar in functionality and performance. If neither (i), (ii), nor (iii) is reasonably practicable, in NetSpring’s sole discretion, then NetSpring may terminate any applicable Order Document (without liability to NetSpring) and grant Customer a pro-rated refund of any payments actually made by Customer to NetSpring for such Software.
(d) Sole Remedy and Exclusive Liability. This Section 12.1 states Customer’s sole remedy and NetSpring’s exclusive liability in the event that the Software or any portion thereof infringes on the Intellectual Property Rights of any third party.
12.2 Customer Indemnity. Customer will defend, indemnify, and hold NetSpring and its Affiliates, and its and their respective officers, directors, agents, or employees (collectively, the “NetSpring Indemnitees”) harmless from and against any Claims brought by a third party (including, without limitation, government authorities), which arise from, result from, or relate to (i) any failure or alleged failure of Customer or of any Customer Representative to comply with any Applicable Law; (ii) any breach of this Agreement; (iii) the grossly negligent or willful acts of Customer or of its Representatives; (iv) the failure by Customer to pay any taxes for which it is responsible, including, but not limited to, unemployment or similar taxes, insurance premiums and workers’ benefits when due; (v) the infringement or alleged infringement of Intellectual Property Rights or other rights of a third party in connection with the data or other materials, provided directly or indirectly, by or on behalf of Customer to NetSpring; or (vi) the Excluded Claims.
12.3 Mechanics of Indemnity. The indemnified Party agrees to: (i) give the indemnifying Party prompt written notice of any Claim for which the indemnified Party is seeking indemnification, or the threat of any of the above for which the indemnified Party anticipates seeking indemnification; (ii) grant sole authority to control the defense and settlement to the indemnifying Party; and (iii) reasonably cooperate with the indemnifying Party in connection with the foregoing, at the indemnifying Party’s expense and cost. Notwithstanding the foregoing, the indemnifying Party will not settle any Claim requiring any admission of fault by the indemnified Party without the indemnified Party’s prior written consent. Moreover, the indemnified Party will have the right to participate, at its own expense, in the Claim.
13.1 Term. The term of this Agreement will begin on the date Customer agrees to this Agreement (in any of the manners set forth at the top of this page) and will continue in effect unless and until terminated pursuant to the terms of this Agreement.
13.2 Termination. In addition to the Parties’ other termination rights set forth in this Agreement, either Party may terminate this Agreement and all outstanding Order Documents, or any particular Order Document, for cause, effective immediately: (i) if the other Party breaches any material term of this Agreement and such breach is not curable; (ii) if the other Party breaches any material term of this Agreement, and such breach is not curable, but the other Party does not cure the breach within thirty (30) days of the date the non-breaching Party gives written notice to the breaching Party specifying the breach and demanding its cure; or (iii) if the other Party becomes insolvent or the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or makes a general assignment for the benefit of its creditors.
13.3 Effects of Termination. Upon termination of this Agreement: (i) each Party will promptly return to the other Party all Confidential Information of such other Party; and (ii) Customer will pay all accrued and unpaid fees and expenses hereunder. The termination or expiration of an individual Order Document will leave this Agreement, and any other Order Document(s), unaffected and in full force and effect, unless otherwise terminated. Any and all provisions of this Agreement that, by their nature or effect, are required or intended to be observed, kept, or performed after the termination of this Agreement will survive any termination of this Agreement. Without limiting the generality of the foregoing, the following sections and articles will survive any termination of this Agreement: Sections 2.4, 2.5 and 13.3, and Articles 1, 5, 7-12 (inclusive) and 14.
13.4 Suspension. Notwithstanding any other provision of this Agreement, NetSpring may, in its sole discretion and without liability, suspend Customer’s access to and use of the Software, Documentation, and/or Services to prevent damages or risk to, or degradation of, the same and/or any Authorized Servers or systems of NetSpring and/or its licensors, or to comply with any Applicable Law.
14. General Provisions
14.1 Non-Exclusivity. This Agreement is non-exclusive. Each Party is free to enter into agreements with others and to conduct its business without restriction.
14.2 Waiver. No delay or omission by either Party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver given on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion. No waiver will be effective unless it is in writing and signed by an authorized representative of the Party giving the waiver.
14.3 Assignment. Neither Party will assign or transfer this Agreement to a third party without the other Party’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party may assign or transfer this Agreement (in whole or in part), without the other Party’s consent, to: (i) an Affiliate; or (ii) any entity which acquires all or substantially all of its capital stock or assets related to this Agreement through purchase, merger, consolidation, or otherwise, provided that such entity is not a direct competitor of the other Party. Any assignment in violation of the foregoing will be void. The provisions of this Agreement will be binding and inure to the benefit of the Parties and their successors and permitted assigns.
14.4 Notices. All notices, demands, requests and other communications given under this Agreement will be in writing and be given by personal delivery, certified mail (return receipt requested) or nationally recognized overnight courier service to the applicable address set forth in the most recent Order Document, or by electronic delivery to the applicable email address set forth in the most recent Order Document (or to such address or email address which has been subsequently designated by the applicable Party by a notice made in accordance with this Section 14.4).
14.5 Governing Law; Venue. This Agreement and performance hereunder will be governed by the substantive laws of the State of California, without regard to its conflict of law rules. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal or state court with jurisdiction over Santa Clara County, California, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court of competent jurisdiction as it deems necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, Intellectual Property Rights and/or other proprietary rights.
14.6 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable as written, that provision will, to the extent practicable, be reformed so as to give effect to the intentions of the Parties, and the other provisions of this Agreement will remain in full force and effect.
14.7 Compliance with Laws. Each Party will comply with all Applicable Laws in its performance of this Agreement. Without limiting the generality of the foregoing, Customer acknowledges that the Software and Documentation are subject to U.S. export controls, and Customer will not export, re-export, divert, transfer, or disclose, either directly or indirectly, any Software, Documentation, information, or data, or any portion thereof, to any country outside of the United States or to the nationals of any such country, except as permitted by this Agreement and in strict compliance with relevant U.S. laws and regulations, including but not limited to U.S. export laws and regulations, and will cooperate fully with NetSpring in any official or unofficial audit or inspection that relates to these controls. Customer represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties.
14.8 U.S. Government Use. The Software provided under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise set forth in this Agreement, use, duplication, and disclosure by civilian agencies of the U.S. Government will not exceed those minimum rights set forth in FAR 52.227-19(c) or successor regulations. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the software license terms contained in this Agreement, as stated in DFARS 227.7202 or successor regulations. U.S. Government rights will apply only to the specific agency and program for which the Software is obtained.
14.9 Force Majeure. Neither Party will be responsible for any delay or failure in its performance of any obligation hereunder (other than payment obligations) due to causes beyond its reasonable control, including, without limitation, labor shortage or dispute, governmental act, epidemic, pandemic, contagion, flu, serious illness or plagues, disease, emergency, outbreak, fire, flood, earthquake, Acts of God or any other natural disaster or failure of the Internet or other wireless networks; provided that the Party invoking this Section 14.9: (i) provides prompt notice to the other Party, and (ii) resumes performance promptly when conditions allow it to do so.
14.10 Entire Agreement. This Agreement sets forth the complete and exclusive agreement between the Parties relating to the subject matter contained herein, and supersedes all prior oral and written agreements, understandings, and communications with respect thereto. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of each Party.
14.11 Contact. Please contact NetSpring at [email protected] with any questions regarding this Agreement, the Software, the Documentation, and/or the Services.