Updated as of June 22, 2022
This Master Service Agreement (“MSA”) is between Netsurit, Inc. a New York corporation, having an address at 224 West 30th Street, Suite 1008, New York, NY 10001 (“Netsurit”); and Client’s organization (“Client”), is effective on the date set forth in the referencing Order and Terms of Service and specifies the terms and conditions agreed between the Parties as a foundation for their relationship. BY CLICKING “I AGREE” WHEN PROMPTED, SIGNING BELOW, OR ORDERING, PURCHASING, ACCEPTING, OR USING NETSURIT SERVICES, CLIENT ACKNOWLEDGES CLIENT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO ABIDE BY ITS TERMS, INCLUDING ALL APPLICABLE TERMS OF SERVICE. IF CLIENT ACCEPTS ON BEHALF OF A BUSINESS OR LEGAL ENTITY, CLIENT REPRESENTS AND WARRANTS CLIENT HAS THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT AND “CLIENT” WILL REFER TO THAT LEGAL ENTITY. This Master Service Agreement governs Client’s use of Netsurit Services and incorporates the Terms of Service (as set forth in Section 1 below) that Client agrees to if Client uses a Service. Capitalized words are defined in the last Section or when first used throughout this Agreement.
- RIGHTS AND OBLIGATIONS
1.1. Terms of Service.
Use of all Netsurit Services is subject to the applicable Terms of Service. Client may use the Services only pursuant to such applicable Terms of Service. Client agrees to immediately notify Netsurit of any known or suspected breach of any Terms of Service or any other unauthorized use of the Services and to assist Netsurit in the enforcement of the same. In the event of a conflict between provisions that appear in different documents, the order of precedence will be the applicable Order, Terms of Service, and this Agreement. Netsurit may unilaterally amend this Section to add additional Terms of Service. 1.1.1. Managed Services
1.1.2. Support Services
1.1.3. Backup, Business Continuity and Disaster Recovery
1.1.4. Supplemental Services
1.1.5. Innovation Services
1.1.6. Block Hours
1.2. Service Levels.
The Service Level commitments applicable to the Services ordered by Client and provided by Netsurit are set forth in the Terms of Service for each Service. Service Levels do not apply during periods of force majeure or scheduled maintenance (“Excused Outages”). If Netsurit does not meet the Service Level set forth in any Service Terms, a credit will be issued to Client upon Client’s written request. Netsurit’s maintenance log and trouble ticketing systems will be used for calculating any Service Level events in accordance with the Service Level set forth in the applicable Service Terms. To request a credit, Client must submit to the Client’s Chief Technology Adviser a written request containing sufficient detail to identify the affected Service within thirty (30) days after the incident the Client alleges the Service Level in question is not met. In no event will the total credits issued to Client in any given month exceed the monthly recurring charges for the affected Service during that month. Client’s sole remedies for any outages, interruptions, failures to deliver or defects in Services are contained in the Service Levels (if any) applicable to the affected Service(s).
1.3. Client Liaison
Client will provide Netsurit with a primary Client Liaison who will act as the principle point of contact for Client, and who is authorized to act on behalf of the Client. The Client Liaison will also act as the point of contact in emergency situations. An alternate Emergency Contact shall also be designated by Client.
1.4. Third Party Applications
Client may employ third party Services or services (“Third Party Applications“). All Third Party Applications are provided by the third party, not Netsurit, pursuant to a separate agreement between Client and the third party provider. Netsurit does not endorse, support or control any Third Party Applications. Netsurit makes no representation or warranty with respect to any Third Party Application and Netsurit expressly disclaims all liability with respect to Client’s use of any Third Party Application.
If Client provides Netsurit with reports, comments, suggestions, ideas or other feedback regarding the Services or Netsurit’s business, whether written or oral (collectively “Feedback“), Client does so without any expectation of compensation. Client hereby grants Netsurit a worldwide, irrevocable, transferable, perpetual, royalty-free right and license to use the Feedback to improve the Services, develop new Services and for any other purpose, including in all media now known and later developed. Feedback is strictly voluntary and Netsurit is not required to hold it in confidence.
1.6. Aggregate Data
Notwithstanding any other provision in this Agreement or otherwise, Netsurit may evaluate and process use of Services and Content in an aggregated and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable (referred to as “Aggregate Data“). Netsurit may use such Aggregate Data to improve the Services, develop new Services, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Netsurit’s business. Netsurit does not share Aggregate Data. Netsurit retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any Client, individual or User.
1.7. Use of Log Data
Operational data concerning use of the Services, including but not limited to, information servers automatically record relating to the access and use of the Services, such as IP address, authentication tokens, machine identification, access logs, device settings and Client Portal settings (collectively, “Log Data”) are processed by Netsurit to provide and the Services, develop new Services and operate and improve Netsurit’s business and Client agrees that Netsurit may use such Log Data for such purposes.
1.8. Evaluation Use
If a Service is being used during a trial or evaluation, this Agreement and the applicable Terms of Service (except for the payment obligation) will apply for the purpose and term of such authorized evaluation or trial period only, and not for the term of a valid Service Subscription for the Service. Netsurit reserves the right to terminate any such evaluation use of the Service at any time in Netsurit’s sole discretion.
1.9. Use of Third Party Technology
Certain Services may involve or allow the use of third party technology, the use of which is subject to such third parties’ license terms. These terms are included as appendices to the Terms of Service, and Client’s use of a Service is deemed Client’s express consent to all such applicable terms. As to all such third party technology: (i) it is provided by Netsurit on an “AS IS” basis, without warranty of any kind, and (ii) Netsurit will not be liable for damages of any kind, including direct, indirect, incidental, special, exemplary, punitive, or consequential damages, nor will Netsurit indemnify Client for any claims related to any third party technology. Except as may be provided in the third party license terms, or in any separate agreement between Client and the provider of the applicable third party technology, Client’s sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the third party technology is to cease its use.
2. RESERVATION OF RIGHTS; LIMITATIONS REGARDING SERVICES
2.1. Intellectual Property Rights
All Intellectual Property Rights in and to Netsurit’s Services, are and will remain the sole and exclusive property of Netsurit, or, as applicable of Netsurit’s suppliers and licensors, and Client has no rights in any of the same other than as specifically set forth in this Agreement. All rights not expressly granted to Client under this Agreement are expressly reserved by Netsurit and Netsurit’s suppliers and licensors. Client may not remove or modify any Service identification or proprietary notice of Netsurit or Netsurit’s suppliers or licensors from the Services or Specifications, including any copyright and trademark notices.
2.2. Right to Change Services
Netsurit may make changes to Netsurit’s Services through updates and upgrades that offer new features, functionality, and efficiencies (“Enhancements“). Netsurit reserves the right to charge for the Enhancements or to provide Enhancements at no additional charge. Netsurit reserves the right to add new Services and Enhancements and to replace or discontinue Services or Enhancements at any time. Netsurit will use commercially reasonable efforts to provide Client notice of any material changes to the Services. Client agrees that Netsurit may and Client hereby authorizes Netsurit, at any time and from time to time, to interact remotely with any deployed Service in order to test, troubleshoot, or update Services.
2.3. Right to Interact with Services
Client agrees that Netsurit may and Client hereby authorizes Netsurit to interact remotely with any deployed Service in order to test, troubleshoot, update or analyze use of or modify the Service or the environment in which it operates.
2.4. Software is Licensed
Netsurit Software, as incorporated into any Service, is licensed, not sold. Except for the limited rights granted herein and in the applicable Terms of Service, Netsurit and Netsurit’s licensors retain all right, title, interest and Intellectual Property Rights in Netsurit Software and Netsurit Services, and all copies thereof.
Client may not nor may Client permit, facilitate or authorize any third party to: (i) use any Service other than as permitted under this Agreement or the applicable Terms of Service; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Service or its Specifications; (iii) access or use any Service in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Service, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Service, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Service; (vi) alter any disabling mechanism which may reside in a Service; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Services, or directly or indirectly permit any unauthorized third party to use or copy the Service; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Services; (ix) extract portions of the Netsurit Software or Device files for use in other applications; (x) register or remotely manage any Service through any management portal other than the Client Portal; or (xi) access any Service to (1) build a competitive Service or service; (2) copy any, or build a Service using, similar ideas, features, functions, or graphics of the Service.
2.6. Limitation on Service Use/Content
Use of the Services and Content must at all times be in compliance with all Applicable Laws. The Services and Content may not (i) be used to send any unsolicited commercial email or invitation; (ii) be used to request, collect, store, transmit or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any applicable privacy law or regulation; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise in violation of Applicable Law; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Law; (vi) contain or be used to transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Services; (vii) violate the terms of any license agreement or other agreement or Terms of Service to which the is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence (“Minors“), or to harm Minors in any way, or that would subject Netsurit to any Applicable Law governing children’s privacy or otherwise related to protecting Minors.
2.7. Netsurit’s Rights
In the event Netsurit reasonably believes any Service use or Content: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Services; or (iii) may otherwise subject Netsurit to liability, Netsurit reserves the right to refuse or disable access to the Service or Content. Netsurit may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. Netsurit will use reasonable efforts to contact the Client Liaison prior to taking such action. Notwithstanding the foregoing, Netsurit may restrict access to any Service or Content without prior notice as necessary to comply with Applicable Law or protect against threats to Netsurit’s network or any Service. 2.8. Certain Uses Not Supported. Use of the Services is not authorized, will not be supported by us, and any warranties will be void, if the Services are modified in any way or used in a manner for which they are not intended.
2.9. Client’s Obligations
Client agrees to immediately notify Netsurit of any unauthorized use, copying, or disclosure of the Service or Content, of which Client becomes aware and agrees to immediately take such actions as are necessary to end and prevent any such use, copying, or disclosure. Client acknowledges and agrees that any breach of this Section will cause immediate and irreparable injury to us, and in such event, Netsurit may seek and obtain injunctive relief, without bond or other security, in addition to other remedies available at law and in equity.
3. ORDERS & PAYMENT
3.1. Ordering Services
When Client places an Order for a Service, the terms of this Agreement, and not any of Client’s pre-printed terms will govern the Order, and any of Client’s pre-printed terms will be null and void. Client may place an Order by electronically confirming any electronic or written quote along with the included Schedule of Services. Prior to submitting an Order, Client will be required to agree to this Agreement, the Order’s Schedule of Services and the applicable Terms of Service.
3.2. Order Acceptance
Client’s receipt of an order confirmation does not signify Netsurit’s acceptance of Client’s order, nor does it constitute confirmation of Netsurit’s offer to sell. Netsurit may at any time after receipt of Client’s order accept or decline Client’s order, or elect to supply less than the quantity Client ordered, for any or no reason. Netsurit may require additional verifications or information before accepting any order. Client’s order will be deemed accepted by Netsurit upon Netsurit’s delivery or registration confirmation of the Services Client ordered. Any delivery date Netsurit provides is an estimate only and Netsurit will not be liable for failure to meet any estimated delivery date. All sales of products are subject to the return policies as described in the referencing Order. Any pricing errors, unintentional misrepresentations of Service availability or features (“Errors“) will be corrected by Netsurit as soon as practicable following discovery. Netsurit reserves the right to revoke any quote, cancel any order or adjust amounts due, as applicable, where Errors affecting an order are discovered. Netsurit’s sole obligation if Netsurit cancels an order due to Error will be to refund any amount already paid.
3.3. Service Fee
Fees for Services are quoted separately on Client Order(s) by Netsurit in writing. Netsurit reserves the right to change Netsurit’s prices at any time upon 30 days’ advance notice. Client’s continued use of the Services after notice of a change to Netsurit’s fees will constitute Client’s agreement to such changes. Fees are subject to an increase of up to three (3) percent per year.
3.3.1. Any additions in either quantity or type to the Services described in the Order may incur an additional monthly fee. All costs related to changes in Service or increases in quantity are the responsibility of the Client.
3.3.2. With regard to any assistance by Netsurit to Client which is outside the scope of Services, as determined by Netsurit in its sole discretion, Client shall pay Netsurit for such services at the Hourly Rate described in the Managed Services Order. Netsurit is required to notify Client that particular assistance services may be outside the scope of the Agreement.
3.3.3. Client shall pay all fees and charges for all supplies ordered and/or purchased and/or shipped on its behalf by Netsurit.
3.3.4. Time is billed in fifteen (15) minute increments. There is a one (1) hour minimum for all on-site work.
3.3.5. There is no charge for travel time within the five boroughs of New York City. Travel outside the five boroughs is billed at the Hourly Rate based on travel time from Netsurit’s New York City office to the Client’s location plus any expenses related to the cost of transportation.
3.3.6. Labor performed outside of Business Hours is subject to a rate of time and a half.
3.4. Term Length
The term of a Service Subscription is indicated on the applicable Order. A term is either for one month (a “Monthly Term”) or for a defined number of consecutive months (a “Committed Service Term”). Certain Services and/or discounts may be available only when purchased with a Committed Service Term.
The term of a Service Subscription for a Monthly Term or a Committed Service Term will automatically renew on a month-to-month basis unless renewed by Client for an additional Committed Service Term or terminated by Client’s providing Netsurit with timely written notice of cancellation. For a Monthly Term, notice of cancellation must be received by Netsurit no later than sixty (60) calendar days prior to the effective month of cancellation. For a Committed Term, notice of cancellation must be received by Netsurit no later than sixty (60) calendar days prior to the effective month of cancellation. Any Service Subscription that is not renewed for an additional Committed Service Term or timely cancelled as required above will be renewed automatically for the following month on the date immediately following the date on which such notice of cancellation was required under this Section.
3.6. Payment Terms
Client agrees to pay all charges applicable to the Services ordered by Client including, but not limited to, one-time charges, monthly recurring Service subscription charges, and any additional usage-based charges, including data overage or additional user charges. Fees and payments will be calculated by Netsurit solely based on records maintained by Netsurit. Client must notify Netsurit of any payment dispute in writing within fifteen (15) days of receipt of a disputed invoice. Prices do not include taxes, duties, and fees (including shipping, and handling) unless otherwise quoted. Forms of payment accepted by Netsurit include credit card, check, and ACH/wire., although the available payment options may vary based on Client’s location (each a “Payment Method”). Client must designate a Payment Method with each Order. By providing Netsurit with a Payment Method, Client authorizes Netsurit to automatically charge that Payment Method, or any updated Payment Method Client provides, for all charges and fees incurred in connection with the Service Client order. Client represents (i) that the Payment Method and related information is valid, accurate, current, and complete, and (ii) Client will maintain and promptly update the Payment Method and related information in order to keep it valid, accurate, current, and complete. Netsurit reserves the right to change Netsurit’s approved Payment Methods at any time and will use reasonable commercial efforts to alert Client to any such changes. Client must provide Netsurit with complete and accurate billing and contact information including Client’s complete legal name, street address, e-mail address and the name and telephone number of an authorized billing contact. Client agrees to update this information within three (3) days of any change. Payments are due within thirty (30) days of the invoice date. Notifications of late payments are given by Netsurit to Client at fifteen (15) days and thirty (30) days past due. Any balance thirty (30) days past due may result in suspension of all support services. Fees will continue to accrue during any such suspension. Netsurit may terminate any Service Subscription at its discretion, effective immediately, for non-payment that is not substantially cured within sixty (60) days after Client’s receipt of written notice.
3.7. Collection of Fees
All amounts payable by Client will be made without setoff or counterclaim, and without any deduction or withholding. Netsurit may charge interest at the rate of 1.5% per month (or the highest rate permitted by law) on late payments. If Netsurit is unable to collect any amount owed, Netsurit may take any other steps deemed necessary to collect such fees, and Client will be responsible for all Netsurit’s incurred costs such as collection fees, court costs and attorneys’ fees. Furthermore, in the event of non-payment of Fees, following notice of such non-payment, Netsurit may suspend or terminate Services, including access to or the right to continue to purchase new Services or use Services already purchased hereunder until payment is made in full.
3.8. Title; Risk of Loss
All new orders for physical Services will be shipped from Netsurit freight prepaid and billed to Client; title and risk of loss to such physical Services will pass to Client upon shipment from Netsurit or to any customs officials or border authority.
3.9. Shipments Made to Certain Jurisdictions
Client may be subject to import duties and taxes, which are levied when the Service arrives at the destination that Client specified or the Service is otherwise received. Any charges for customs clearance are Client’s responsibility, as Netsurit has no control over such charges and cannot foresee the amount charged (if any). Since customs policies vary from country to country, Client should contact the customs office in the country where Client has Netsurit ship Services to get more information. Client is considered the importer of record and must comply with all laws and regulations of such jurisdiction.
Client will pay and be solely liable for all taxes including sales, use, excise and any other taxes, duties or charges with respect to Netsurit’s sale of the Services to Client, but excluding taxes based on Netsurit’s net income or gross receipts and taxes from which Client is exempt by law as shown by a valid tax exemption certificate. Client agrees to indemnify and hold Netsurit harmless in the event Netsurit is required to pay such taxes, duties or other charges for which Client is responsible.
4.1. Protection of Confidential Information
Each party will (i) maintain the confidentiality of the Confidential Information of the other party (and that of any third parties to which either party has access as a result of this Agreement); (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except to the extent necessary to perform its obligations under this Agreement (iii) use the same care to prevent disclosure of the Confidential Information of the other party to third parties as it employs to avoid disclosure of its own information of a similar nature, but in no event less than a reasonable standard of care; (iv) use the Confidential Information of the other party solely for the purpose of performing its obligations under this Agreement; and (v) promptly return, or provide a copy of, as the requesting party directs, Confidential Information upon the request of the other party.
4.2. Services are Netsurit Confidential Information
The Services, including their structure, organization and source code, are comprised of commercially valuable assets belonging to Netsurit or Netsurit’s licensors, the development or acquisition of which required the investment of substantial time, effort and cost. Client acknowledges and agrees that the Services may contain trade secrets and they (and all portions thereof) are Netsurit’s Confidential Information and are proprietary to Netsurit. Accordingly, Client hereby agrees to use the highest degree of care to maintain the confidentiality of the Services.
4.3. Disclosure of Confidential Information
Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors and independent contractors (collectively “Representatives“) who have: (i) a need to know such Confidential Information in order to perform their duties; and (ii) a legal duty to protect the Confidential Information. A party receiving Confidential Information of the other party assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.
4.4. Required Disclosures
Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party required to make any such disclosure, where legally permissible in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the other party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
Except for any disclosure permitted under this Section, in the event of any disclosure or loss of Confidential Information, the receiving party will notify the disclosing party as soon as possible.
4.6. Injunctive Relief
Each party acknowledges that any breach of any provision of this Section (Confidentiality) by the receiving party, or its Representatives may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
4.7. Return of Confidential Information.
Unless it is expressly authorized to retain the other party’s Confidential Information, a party will promptly return or use commercially reasonable efforts to destroy, at the other party’s option, the other party’s Confidential Information upon request or upon termination of this Agreement.
5. TERM AND TERMINATION
5.1. Term. This Agreement will commence on Client’s acceptance of this Agreement by electronic or written means and continue until terminated in accordance with the provisions of this Section (the “Term“). The Term of this Agreement is independent of the term applicable to any individual Service Subscription, which will in each case be set forth in the Order.
5.2. Termination for Convenience
Netsurit may terminate this Agreement, at any time, without cause, upon 30 calendar days written notice. In addition, Netsurit may terminate providing a particular Service, at any time, without cause, upon 30 calendar days written notice, without terminating this Agreement.
5.3. Termination for Material Breach
Each party will have the right to terminate this Agreement upon notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice thereof. Netsurit may terminate this Agreement and/or any individual Service Subscription at its discretion, effective immediately, for non-payment that is not substantially cured within thirty (30) days after receiving written notice. Notwithstanding the above, Netsurit may terminate this Agreement immediately for cause for any violation by Client of Section – “Reservation of Rights/Limitation Regarding Services” or Section – “Compliance with Laws”. Netsurit may also terminate this Agreement immediately upon notice to Client if Client if disparages Netsurit or Netsurit’s Services or engages in abusive or threatening conduct or communications toward Netsurit.
5.4. Effect of Termination
Immediately upon either of Netsurit serving the other with notice of termination, Client may not order any additional Services without Netsurit’s express written consent and Netsurit reserves the right to terminate Client’s Service(s). Upon termination, (i) any amounts Client owes to Netsurit will be immediately due and payable; (ii) all rights and licenses granted hereunder will terminate and Client must cease the use of the Services. Both parties will immediately cease use of all Confidential Information of the other party and will use commercially reasonable means to irretrievably delete such Confidential Information.
5.5. Deletion of Data
To the extent that termination of this Agreement also leads to termination of Netsurit Services, Netsurit reserves the right to permanently and irrevocably delete or disable access to all related accounts and Content from any remotely located servers owned by Netsurit or under Netsurit’s control, without liability for such deletion, immediately upon the termination of such Netsurit Services.
Notwithstanding anything to the contrary, the following provisions will survive termination of this Agreement: those that by their express terms survive or by their nature may be reasonably inferred to survive, as well as Sections 4 through 12.
6.1. Mutual Warranties
Each party represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of its place of incorporation or formation; (ii) it has the authority to enter into this Agreement and to perform its obligations and grant the rights and licenses provided herein; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
6.2. Third Party Hardware Warranty
Netsurit has no warranty obligations with respect to any Hardware purchased for Client by Netsurit that are developed by third parties. All third party hardware is subject to the warranties, if any, of the related third party.
6.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETSURIT DISCLAIMS ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NETSURIT DOES NOT WARRANT THAT THE SERVICES WILL MEET ANY CONTENT OWNER, ADMINISTRATOR, OR USER REQUIREMENTS OR THAT THE OPERATION OF ANY SERVICE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED. NETSURIT MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY SERVICE’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.
6.4. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NETSURIT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6.5. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE SERVICES WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER.
6.6. No Revenue Guarantee
Client acknowledges and agrees that Netsurit makes no promise or guarantee that Client will obtain or receive any minimum revenue or profit as a result of this Agreement or using the Services.
7. LIMITATIONS AND EXCLUSIONS OF LIABILITY
7.1. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL NETSURIT OR NETSURIT’S LICENSORS OR SUPPLIERS BE LIABLE TO CLIENT OR TO ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF NETSURIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NETSURIT BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICES.
7.2. TO THE FULLEST EXTENT ALLOWED BY LAW, NETSURIT’S TOTAL LIABILITY (AND THAT OF NETSURIT’S SUPPLIERS/LICENSORS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO DIRECT DAMAGES ONLY IN AN AMOUNT EQUAL TO THE FEES RECEIVED BY NETSURIT RELATED TO THE INDIVIDUAL SERVICE INSTANCE, IN THE 3 CALENDAR MONTHS PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY; PROVIDED THAT IN NO EVENT WILL NETSURIT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES CLIENT PAID TO NETSURIT FOR ALL SERVICES IN ANY 3 CALENDAR MONTH PERIOD.
7.3. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.4. Essential Basis
Client acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in Section – “Warranty” and this Section form an essential basis of this Agreement and have been relied on by both of us, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement and the fees applicable to the Services would be substantially different.
8.1. Indemnification by Netsurit
Netsurit agrees to defend Client from and against third party claims that a Service in the form supplied to Client under this Agreement infringes or misappropriates a third party’s patent, copyright or trademark rights and Netsurit will indemnify and hold Client harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Netsurit in settlement in connection with any such claim. Netsurit’s indemnification obligations will not apply to (i) claims of infringement to the extent based on Client’s combination of the Service with other Services, services, software or marks if the infringement could have been avoided by the use of such Service not in such combination; (ii) any modifications to the Service not made by us; (iii) any damages incurred as a result of Client’s failure to use any update to the Service Netsurit provides; or (iv) use of a Service in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions“). If Netsurit determines that a Service is or may be subject to an infringement claim, Netsurit may, at Netsurit’s option: (1) procure for Client the right to continue using the Service in accordance with this Agreement or (2) replace or modify the Service so it becomes non-infringing. If Netsurit determines that neither of these options is commercially practicable, Netsurit may terminate this Agreement or Client’s ability to further use such Service upon written notice to Client. This Section represents Client’s sole and exclusive remedy and Netsurit’s sole and exclusive liability for any infringement claims based on the Services.
8.2. Client’s Indemnification of Netsurit
Client agrees to defend Netsurit, Netsurit’s licensors and affiliates, and the officers, directors, employees and representatives of each of them (each a “Netsurit Indemnified Party“), from and against all damages and costs incurred as a result of a third party claim and Client will indemnify and hold any and all Netsurit Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Client in settlement in connection with any such claim, to the extent the claim arises out of (i) Client’s breach of this Agreement; (ii) Client’s negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against us; (iii) any of the IP Exclusions referenced in Section 9.1.; (iv) Client’s failure to secure Content, any personally identifiable information or Confidential Information in accordance with this Agreement, any applicable Business Associate Agreement, and Applicable Law.
The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
9. COMPLIANCE WITH LAWS
9.1. All Applicable Laws
Client represents, warrants, and covenants that in the performance of this Agreement, Client will comply, and will cause Client’s employees, directors, officers, suppliers and independent contractors to comply with all Applicable Laws and regulations related to Client’s activities under this Agreement. Client will not cause Netsurit or Netsurit’s affiliates to be in violation of any Applicable Laws or regulations. Client will respond to Netsurit’s requests for information, to the extent reasonable and related to Netsurit’s efforts to ensure compliance with Applicable Laws and regulations.
9.2. Compliance and Required Permits
Client will obtain all licenses and approvals and other authorizations required and will otherwise comply with all laws governing the importation the Services and will pay (and reimburse Netsurit if Netsurit is required to pay) all related governmental charges and related expenses.
Client will at Client’s own expense, make, obtain and maintain in force at all times during the term of the Agreement, all reports, licenses, permits and authorizations required to perform Client’s obligations under this Agreement.
9.4. Corrupt Practices
Client will comply with all applicable laws, statutes, regulations and sanctions relating to anti-bribery and anti-corruption compliance, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 as amended (the “FCPA“), any guidance issued by the U.S. government from time to time regarding the FCPA, the United Kingdom Bribery Act 2010 (“UKBA“), any guidance issued by the UK government from time to time regarding the UKBA, and other applicable anti-corruption, anti-fraud, embezzlement, anti-money laundering, and anti-terrorist financing laws and regulations (collectively, “Anti-Corruption Laws“).
Client will use Client’s best efforts to promptly advise Netsurit in writing of any statute, regulation or other law that is not the United States, if applicable, that is or comes into effect during the term of the Agreement and that affects the importation, exportation, sale promotion, provision or protection of the Service or services or which otherwise has a material effect on the parties’ rights or obligations under the Agreement.
9.6. Government Registration
If any approval or registration of this Agreement (“Required Registrations“) is required, either initially or at any time during the Term, in order to give the Agreement legal effect within any jurisdiction, or with respect to exchange regulations or requirements so as to assure the right of remittance abroad of sums due to us, Client agrees, at Client’s sole expense, to take whatever steps may be necessary to secure such Required Registrations, immediately and prior to commencing any activities which are subject to such approval or registration.
Client will maintain and comply with policies and procedures which are (i) substantially consistent with the foregoing representations, warranties, covenants and certifications, and (ii) in compliance with all Applicable Laws and regulations applicable to Client and Netsurit, including, but not limited to, the laws described in this Section – “Compliance with Laws”.
9.8. Notification and Cooperation
Client has in good faith provided to Netsurit and/or Netsurit’s agents and advisors all documents and information of the character and type requested by Netsurit in writing in the course of any corporate and anti-corruption due diligence review of Client. Client will immediately notify Netsurit if Client has any information or suspicion that there may be a violation of Applicable Laws or regulations, including, but not limited to, the laws described in this Section – “Compliance with Laws”, in connection with this Agreement. Client will reasonably cooperate with Netsurit in regard to any matter, dispute, or controversy related to this Agreement and in which Netsurit may become involved and of which Client may have knowledge. Such obligation will continue after the expiration or termination of this Agreement.
10. GOVERNING LAW; DISPUTE RESOLUTION
10.1. Governing Law
All disputes, controversies, actions or proceedings relating to, or arising out of, this Agreement and/or the creation, production, manufacture, distribution, promotion, marketing, advertising (including oral and written statements), use of or sale of any and all of Netsurit’s Services and Services (collectively “Claims”), shall be governed exclusively governed, construed and enforced exclusively in accordance with the laws of the state of New York, USA, without reference to conflicts of law principles and nothing in this Agreement will be deemed to exclude or limit the liability of either party which cannot be limited or excluded by such applicable law. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement nor to any dispute arising out of this Agreement.
10.2. Dispute Resolution. Any dispute, controversy or claim arising out of the Agreement or the interpretation thereof (a “Dispute”) shall be resolved as provided in this Section. Prior to the initiation of formal dispute resolution procedures, the Parties shall first meet as often, and for such duration and as promptly as the Parties reasonably deem necessary to discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute. If Client and Netsurit are unable to resolve the Dispute within thirty (30) days after the referral of the Dispute to them, then each of Netsurit and Client will appoint one (1) senior executive who is not involved on a day-to-day basis with the subject matter of the Agreement and will negotiate the matter in good faith in an effort to resolve the Dispute without the necessity of any formal proceedings. Formal proceedings for the resolution of a Dispute may not be commenced until the earlier of: (i) the good faith determination by the appointed senior executives that amicable resolution through continued negotiation of the matter does not appear likely; or (ii) thirty (30) days following the date that the Dispute was first referred to the appointed senior executives. The provisions of paragraphs (i) and (ii) will not be construed to prevent a Party from instituting formal proceedings to the extent necessary to avoid the expiration of any applicable limitations period or to pursue equitable rights or injunctive remedies deemed reasonable necessary to protect its interests.
11.1. Netsurit has implemented and maintains physical, technical and administrative measures designed to help secure Content under Netsurit’s control against accidental or unlawful loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and Client acknowledges and agrees that despite the reasonable measures employed, the Services and Content are not guaranteed against all security threats or other vulnerabilities.
11.3. Client acknowledges and agrees that Client is responsible, and in no event will Netsurit be responsible, for any physical, administrative, or technical controls related to Services or Content not under the exclusive control of Netsurit, including but not limited to access to Client’s location(s), passwords or other access credentials, LAN or internet connectivity, etc..
12. ADDITIONAL PROVISIONS
12.1. Nature of Relationship. Each of the Parties enters into this Agreement as an independent contractor and neither of Party may act or represent itself as an agent or joint venturer of the other.
12.2. Non-Solicitation. During the term of this Agreement and for a period of six (6) months thereafter, neither party will solicit for employment any employees of the other party or its affiliates.
12.3. Government Contracts. If the Services are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding on Netsurit unless Netsurit specifically agreed in writing.
12.4. Construction. The Section headings in this Agreement are for convenience of reference and will not be deemed to be a part of this Agreement. Any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of this Agreement.
12.5. Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
12.6. Electronic Communications. Client consents to receive communications from Netsurit in electronic form and agrees that all agreements, including this Agreement, notices, disclosures, and other communications that Netsurit provides to Client electronically satisfy any legal requirement as if in writing.
12.7. Assignment. Client may not assign this Agreement or any rights or obligations hereunder (including with respect to any individual Service or Content), without Netsurit’s express written consent. Any assignment or transfer in violation of the foregoing will be null and void. Netsurit reserves the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of Netsurit. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
12.8. Force Majeure. Any delay in or failure of performance of either of Netsurit (excluding obligations to pay for Services) will not constitute a default under this Agreement or give rise to any claim for damages to the extent such delay or failure of performance is caused by an event beyond Netsurit’s control.
12.9. No Waiver. The failure to enforce or the waiver by either party of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
12.10. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
12.11. English Language. This Agreement has been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
12.12. Notices. All notices required or permitted hereunder will be in writing and delivered by nationally recognized overnight courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to Client will be sent to Client at the main address specified as Client Liaison or the billing contact Client provides. Notices to Netsurit must be sent to 224 West 30th Street, Suite 1100, New York, NY 10001 Attn: Financial Department. In addition, Netsurit may send any notice required or permitted hereunder to Client at the email address specified for the Client Liaison recorded in the Client Portal and such notice will be deemed effective upon Netsurit’s receipt of email delivery notification.
12.13. Remedy. The rights and remedies of the parties will be cumulative (and not alternative). In the event of any litigation between the parties relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and court costs from the other party.
12.14. Entire Agreement. This Agreement, the Terms of Service or other applicable terms, together constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on Netsurit unless it is in writing and either generated by Netsurit directly on an Order or signed by Netsurit. Any inconsistent or additional terms contained in any of Client’s purchase orders, sales confirmations or any other communications are deemed material changes which Netsurit hereby expressly rejects. Netsurit’s fulfillment of any Order will not constitute acceptance of any such additional or inconsistent terms and conditions.
12.15. Updates to this Agreement. Netsurit may update this Agreement from time to time. Netsurit will notify Client of changes by posting the updated Agreement on the appropriate Online Portaland/or by sending a message to the primary account user for Client’s organization. Client is responsible for checking the Online Portal regularly and for maintaining a current electronic address for Client’s account so Netsurit may notify Client of important updates. The updated Agreement will be effective 30 days from Netsurit’s notice unless Client notifies Netsurit that Client objects within such 30 days. By continuing to participate as a Client without objection after such 30 day period, Client agrees to comply with the updated Agreement.
13.1. “Applicable Laws” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by this Agreement.
13.2. “Business Hours” are 9:00 AM to 6:00 PM Eastern Time Monday through Friday, with scheduled on site visits starting at 10:00 AM.
13.3. “Confidential Information” means any information (other than Feedback, Aggregate Data and Log Data), whether oral, written, electronic, or in any other format, regarding this Agreement, the Services, services, Intellectual Property Rights, pricing, discounts, marketing and business plans, Beta Services, Online Portals, other information not generally known to the public and any other information received under circumstances reasonably interpreted as imposing an obligation of confidentiality; provided that, “Confidential Information” does not include any information that: (i) was publicly available at the time of disclosure; (ii) became publicly available after disclosure through no fault of the receiving party; (iii) was known to the receiving party prior to disclosure by the disclosing party or (iv) was rightfully acquired by the receiving party after disclosure by the disclosing party from a third party who was lawfully in possession of the information and was under no legal duty to the disclosing party to maintain the confidentiality of the information. In addition, that in the event disclosure is required by subpoena or other compulsory government demand or order, the receiving party shall provide the disclosing party with prompt notice of such requirement and shall seek an appropriate protective order prior to such disclosure.
13.4. “Configuration” means the individual components that make up the Client System. Configurations can include devices, Services, software, etc… and are itemized and inventoried in the Client Portal.
13.5. “Content” means data, content or other materials stored, backed-up, hosted, displayed, transmitted, routed, virtualized, processed or communicated using a Service.
13.6. “Client Portal” means a secured web-based application where Client can view and access Service Tickets, Configurations and Client System, Reports, Agreements and other account information.
13.7. “Client System” is defined as the components of the Client network that may include Services and hardware devices and that are itemized in the Client Portal as active Configurations.
13.8. “Netsurit Software” means software technology and other Intellectual Property Rights of Netsurit and its licensors in or comprising any Service, including any embedded software on or comprising Devices.
13.9. “Device” means any (i) storage or backup and disaster recovery Service instance, regardless of whether it is physical hardware, virtual or imaged form; (ii) any networking Service instance.
13.10. “Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
13.11. “Official” means (i) a director, officer, employee, contractor, or agent of any government, military, or state-owned or affiliated entity or organization; (ii) any department, agency, corporate entity, instrumentality or political subdivision of any government or military; (iii) any person or commercial entity acting in an official capacity for or on behalf of any government or military; (iv) any candidate for political office, any political party or any official of a political party; or (v) any officer, employee, contractor, or agent of any public international organization such as the United Nations or the World Bank.
13.12. “Order” means the Client’s written authorization requesting Netsurit to furnish either Services, labor or goods to the Client. When requesting Services, the Order includes a Schedule of Services.
13.13. “Priority” means the rating of the impact of a service level issue. The following priorities are defined:
- “High Priority” impacts core function and/or operations for multiple users
- “Medium Priority“ impacts single, non-VIP user.
- “Low Priority” minimum impact to Client. Workaround in place or available.
13.14. “Schedule of Services” means the specifications described on the Client Order(s) that define the specifics of Service Plan options. 13.15. “Services” means any Service made available by Netsurit, including Netsurit Services, Devices, Netsurit Software, as well as all Enhancements and Specifications related to all of the foregoing, that a Client uses according to the terms and conditions of this Agreement. “Specifications” means the policies, documentation, user manuals and any technical publications and materials, as applicable, made available by Netsurit relating to the Services. Specifications may be published on an Online Portal. 13.16. “Service Subscription” means the subscription the Client has agreed to by authorizing the Order specifying the related Services. 13.17. “Terms of Service” means individually and collectively, the terms and conditions set forth in Section 1.1 applicable to the use of each Service.