Product Subscription & Services Agreement
Section 1. Access to and Use of NetGain Product(s) (“Products”) Subject to the terms and conditions of this Agreement and associated signed Customer Estimate(s) referencing this Agreement, NetGain Solutions, LLC (“NetGain”) grants to Customer a personal, revocable, non-exclusive, non-transferable, limited right and license to access Products via Customer’s NetSuite Account during the Term of this Agreement (the “License”). The License is limited to the right to access and to use Products for Customer’s own internal business purposes, and those of its affiliates, as expressly authorized under this Agreement. No right to sub-license is granted under this Agreement. Customer shall not (a) reproduce, duplicate, disseminate, copy, sell, rent, lease or loan or otherwise disclose Products to any third party or use the same for the purpose of commercial timesharing, service bureau or other rental or sharing agreements with any third party, Customer or affiliate of Customer with the permitted exception of for the purposes of backup; (b) use Products for any use other than the intended use set forth in the License and within the scope of the License; (c) reverse engineer or circumvent the security and restrictions of Products; or (d) otherwise use Products in any way not expressly provided for by this Agreement.
Customer shall take all steps necessary to protect all User Logins and passwords, to safeguard the security and integrity of Products, and to protect against the unauthorized access of Products. Customer shall immediately notify NetGain of any violation of the foregoing. Any access to Products using Customer’s User Logins and passwords shall be deemed access by Customer, except where access is the result of unauthorized disclosure of such User Logins and passwords by the negligent or willful act of NetGain. Customer will be responsible, at its expense, for establishing, purchasing and maintaining its NetSuite Account and all necessary third party software and applications, hosted applications, Internet access, hardware, storage space and services, sufficient bandwidth and network connectivity, and other requirements necessary to access and use Products in a secure environment, Customer acknowledges and agrees to a fully licensed copy of NetSuite®, which must be maintained and kept up to date by Customer, at Customer’s expense.
Section 3. Updates. During the Term of this Agreement, NetGain will maintain, correct and modify, and may upgrade and update Products (collectively, “System Updates”); provided, however, that the nature, substance, content, timing, manner and release of System Updates, if any, shall be in the sole and absolute discretion of NetGain. System Updates shall be included within Products and the License grant.
Section 4. Support. NetGain will provide email support within two (2) business days, excluding US and International holidays. Customer may request additional support at prevailing and customary rates, unless separately set forth on the Customer Estimate. Support provided hereunder does not include Training, Setup, or Consulting Services. Customer will designate at least one employee who will qualify all Customer support requests and serve as the primary points of contact for Customer with the Support services.
Section 5. Consulting Services. Customer may request and NetGain may provide consulting services (“Consulting Services”) in connection with Products. All Consulting Services are set forth in the Standard License Agreement & Statement of Work at https://www.netgain.tech/psa which sets forth the professional services to be rendered, performance schedules, pricing and any other applicable terms and conditions. All Statements of Work shall be subject to the terms and conditions of this Agreement.
Section 6. Deliverables & Contract Property. Refer to Standard License Agreement & Statement of Work https://www.netgain.tech/psa
Section 7. Customer Property. Customer shall own all rights, title and interest in and to any Customer Property. “Customer Property” means any Customer technology, or Customer-specific business processes, specifically as designated as Customer-owned property in a Statement of Work. NetGain shall have the right to use any such Customer Property solely for the purpose of providing the Professional Services to Customer hereunder.
Section 8. Confidentiality, Non-Use and Non-Disclosure. Each party will treat and hold all confidential information (“Confidential Information”) designated as confidential, or given the circumstances, that would reasonably understood by the receiving party to be confidential, and received from the other party in strict confidence and will not use or disclose to anyone, excluding a party’s employees, contractors, service providers and affiliates, any of the information except in connection with each party’s performance under this Agreement. The term “Confidential Information” shall include, without limitation, business and personal data, information concerning a party’s business, business practices, policies or plans, financial information, pricing, products, systems or customers, the terms and conditions of this Agreement, all User Logins and passwords, Customer Property, NetGain Intellectual Property, Products, and their features, functionality, work-flow, algorithms, screen displays and methods, IP addresses for Products, System Updates and all documentation relating thereto. Confidential Information does not include information that the receiving party can establish: (i) (except with respect to personal Information) becomes generally known to the public without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing Party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever, and with written demand, each party shall return to the other all Confidential Information.
If any applicable laws or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise prohibited by the Disclosure Order, the receiving party shall promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party shall cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by disclosing party, receiving party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency or similar entity, receiving party may disclose, without liability hereunder, that portion of the Confidential Information that is legally required to be disclosed and receiving party shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
Each party shall promptly notify the other party, as soon as reasonably practicable and not later than 72 hours from the time of confirmation by such party, of unauthorized access, use, or disclosure of any Confidential Information under its control. Each party shall reasonably cooperate with the other with respect to investigation and mitigation of any such unauthorized access, use, or disclosure.
NetGain shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Customer’s Confidential Information. NetGain shall implement processes and maintain procedures designed to comply with applicable laws and shall facilitate Customer’s compliance with its data security obligations with respect to personal information in NetGain’s possession or control to the extent that Customer is required to comply with applicable data privacy laws with respect to such personal information.
Customer shall not promote or publicly disclose or link the Internet address or location of Products in any manner, including on any public-facing web sites without the prior written consent of NetGain. This section shall survive the termination, expiration, or cancellation of this Agreement.
Section 9. Ownership of Intellectual Property. Customer shall not contest or otherwise challenge: (a) NetGain’s designation of its Confidential Information as trade secrets and commercially sensitive and confidential and proprietary information; or (b) NetGain’s ownership of its Confidential Information and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, and other intellectual property rights in and to its Confidential Information and arising therefrom (collectively, the “ NetGain Intellectual Property ”). No title or ownership of NetGain’s Confidential Information or NetGain Intellectual Property is transferred to Customer by way of this Agreement. All rights not expressly granted to Customer in the License are expressly reserved and retained by NetGain.
Section 10. Payment Terms. Customer shall pay to NetGain the fees set forth in the accompanied Estimate on or before the due dates.
Section 11. Interruption of Use. Customer acknowledges and agrees that NetGain shall not be liable for System Downtime (as defined below) or downtime caused by reasons beyond NetGain’s reasonable control, or that could not have reasonably been mitigated for, that include, without limitation, actual or threatened security concerns, Internet and connectivity failures, failure or downtime of third party software, hardware, networks and services, delays, failures or downtime of NetSuite® or Customer’s NetSuite Account and a Force Majeure and such instances shall not constitute a breach of this Agreement. Products and services may be inaccessible or unavailable, in whole or in part, for various reasons including, without limitation: (a) equipment, network, software and hardware malfunctions; and (b) maintenance and repairs, and servicing, upgrading, and testing of Products, Feature Sets and its components (collectively, “System Downtime”).
Section 12. Term of Agreement. Unless earlier terminated in accordance with section 13 below, the term of this Agreement shall be for the Initial Term and will renew for successive additional renewal terms of a minimum of twelve (12) months. The term “Term” shall mean the Initial Term and any renewal terms thereafter. All fees including the Access Fees and Support Services fees for all renewal Terms shall be at NetGain’s then prevailing rates. Each party shall have the right to terminate this Agreement in accordance with Section 13 below.
Section 13. Termination. Either party may terminate this Agreement (a) by providing notice of non-renewal to the other party within thirty (30) days of expiration of the Term or (b) if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of a failure to pay, which shall be cured within ten (10) days of notice of such failure. Either party may terminate this Agreement immediately and without notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors.
Section 14. Effect of Termination. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever: (a) the License shall automatically, and without further notice, be revoked; (b) Customer shall immediately cease all access to and use of Products and all Confidential Information and shall return the same to NetGain in accordance with section 7 above; and (c) NetGain shall have the right to terminate and deny Customer access to Products immediately and without further notice.
Section 15. Representations and Warranties of Customer. Customer represents and warrants that: (a) Customer will not use Products for any illegal purpose or in violation of any law or regulation; and (b) Customer shall only use Products for business purposes. Customer shall defend, indemnify and hold harmless NetGain from and against any actual or threatened claims arising out of or relating to any breach of the representations and warranties set forth in this section.
Section 16. Warranties. NetGain grants solely to Customer starting on the Access Date and lasting for the Term the following limited warranties (the “ Limited NetGain Warranties ”): (a) Products and the Feature Sets selected and paid for by Customer will substantially perform the material functions described in the user documentation NetGain provides for Products (whether in on-line, electronic or printed form); (b) all services performed under this Agreement including, without limitation, all Support Line Services, Setup, Training and Consulting Services, shall be performed in a professional workmanlike manner and (c) NetGain shall use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Products provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SALE OF GOODS. EXCEPT FOR THE LIMITED NETGAIN WARRANTIES EXPRESSLY SET FORTH ABOVE IN THIS SECTION 16, NETGAIN MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE AND ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” NETGAIN DISCLAIMS ANY AND ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AS TO NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR ANY PARTICULAR PURPOSE, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. CUSTOMER ACKNOWLEDGES THAT PRODUCTS AND FEATURE SETS MAY NOT BE ERROR FREE.
Section 17. Training Material Warranties. Customer acknowledges that NetGain may contain training materials related to the NetSuite system which describe certain actions or activities that can be performed by the user within NetSuite. NetGain makes no warranties of any kind that this training material is accurate or correct with respect to NETSUITE functionality.
Section 18. SOLE REMEDY FOR BREACH OF THE LIMITED WARRANTY and Guarantee. If at any time during the Term there is any breach of any of the Limited NetGain Warranties and Guarantees, Customer’s sole and exclusive remedy shall be as follows: Customer shall deliver written notice to NetGain of the breach, where curable, NetGain shall use reasonable efforts to correct such breach within forty- five (45) days or provide a mutually acceptable plan for correction by forty-five (45) days following the receipt of the Customer’s notice by NetGain; however, if such breach is not corrected within such forty-five (45) day period, Customer may, upon delivering to NetGain written notice of termination within seven (7) days after the expiration of the forty-five (45) day cure period, terminate this Agreement and receive a refund of any pre-paid portion of the Access Fees actually paid by Customer to NetGain for the unused portion of the then in-effect Term remaining after the date of termination. Where a breach is not curable in the Customers reasonable opinion, the Customer has the right to terminate immediately. THE FOREGOING REMEDY SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED NETGAIN WARRANTIES, AND SUCH REMEDY SHALL APPLY EXCLUSIVELY EVEN IF IT FAILS OF ITS ESSENTIAL PURPOSE.
Section 19. LIMITATION OF REMEDIES AND LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER NETGAIN NOR CUSTOMER SHALL BE LIABLE TO CUSTOMER OR ANY OF THE OTHER PARTY’S EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNS FOR ANY LOST PROFITS, LOST SAVINGS, DATA LOSS, INJURY TO GOODWILL OR REPUTATION, LOSS OF ANTICIPATED BENEFITS, DISRUPTION OR INTERRUPTION TO ITS BUSINESS, LOST CUSTOMERS, OR ANY TYPE OF INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT OR, IN THE CASE OF NETGAIN, ANY OF THE LIMITED NETGAIN WARRANTIES, PRODUCTS, OR DOCUMENTATION OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SETUP, TRAINING, CONSULTING SERVICES AND SUPPORT LINE SERVICES, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EACH PARTY AGREES THAT THE OTHER PARTY’S TOTAL, AGGREGRATE AND COMPLETE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT IN NO EVENT SHALL EXCEED 100% OF THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO NETGAIN DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY AND, IN THE CASE OF CUSTOMER, A REFUND OF ANY PRE-PAID PORTION OF THE ACCESS FEES FOR THE REMAINING AND UNUSED PORTION OF THE THEN IN-EFFECT TERM. ALL OF THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF NETGAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.
Section 20. Disablement. Notwithstanding any provision of this Agreement to the contrary, acting reasonably, NetGain shall have, among its other rights and remedies, the right to immediately temporarily or permanently disable, suspend or terminate Customer’s access to and/or use of Products, in whole or in part, with or without notice in the event that: (a) Customer’s access or use of Products interrupts or interferes with the operation of Products in any manner or creates an actual or threatened security risk. NetGain shall take all reasonable actions to inform the Customer in advance of such actions and shall provide Customer with information or a process to re-enable full uninterrupted use by the Customer.
Section 21. Indemnity. NetGain shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, awards, judgments, liabilities, costs, and expenses (including reasonable legal fees) arising from any actual or threatened third party claim that Products infringes any United States patent, copyright, trade secret or other third party intellectual property right. These obligations shall be contingent upon Customer: (a) giving prompt written notice to NetGain of any claim, demand, or action for which indemnity is sought; and (b) fully cooperating, at NetGain’s expense, in the defense or settlement of any such claim, demand, or action. NetGain shall have no liability for any claims of infringement that are based on use of Products in any manner not authorized by this Agreement. NetGain shall have the right to satisfy its obligations under this section by, at NetGain’s option in its sole discretion: (a) procuring for Customer, at NetGain’s expense, the right to continue to use Products; (b) replacing or modifying Products, at NetGain’s expense, so that Products is no longer subject to the claim of infringement; or (c) terminating this Agreement and refunding to Customer all amounts pre-paid under this Agreement for the remaining and unused portion of the then in-effect Term. THE FOREGOING OBLIGATIONS OF INDEMNITY SET FORTH IN THIS SECTION CONSTITUTE NETGAIN’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR THREATENED CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
Section 22. Entire Agreement and Amendments. This Agreement embodies the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. The parties expressly declare and understand that no promises, inducements, consideration or agreements not herein expressed have been made to them. This Agreement may not be modified or amended except by a written instrument executed by both parties. Except to the extent expressly specified otherwise, if there is any conflict between this Agreement and any of the other Agreement documents, then the following order of precedence applies: (i) any amendment to this Agreement between the Parties, (ii) this Agreement, (iii) the Estimate and (iv) the Standard License Agreement & Statement of Work.
Section 23. Interpretation. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement and this Agreement shall be construed as having been jointly drafted by the parties. The parties acknowledge and agree that titles and headings for particular paragraphs, sections and subsections of this Agreement have been inserted solely for reference purposes. As a result, section and paragraph headings, titles or captions should not be used to interpret or construe the terms of this Agreement.
Section 24. Governing Law, Arbitration and Attorneys’ Fees. This Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Colorado. In the event of a dispute or alleged breach of this Agreement, the parties will work together in good faith first, for a period of no fewer than 30 days, to resolve the matter by escalating it to higher levels of management and, then if unable to resolve the matter giving rise to the dispute, will follow the arbitration provisions set forth in this section. Thereafter, any dispute, controversy or claim arising out of or relating to Products, any services, the Consulting Services, or this Agreement, or its negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The arbitration and all proceedings shall take place in State of Colorado. There shall be a single arbitrator selected by the parties in accordance with the Commercial Rules of the American Arbitration Association; however, the arbitrator shall be a member of the State of Colorado bar and shall have no less than ten (10) years’ experience in computer law and commercial matters. The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. In any dispute arising out of or relating to this Agreement, the prevailing party shall receive an award of its reasonable attorneys’ fees and costs in any proceeding, including on appeal and enforcement.
Section 25. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
Section 26. Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under this Agreement by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
Section 27. NetSuite. Customer acknowledges and agrees that: (a) Products operates on the third-party NetSuite® platform; (b) the NetSuite® platform is owned and operated by NetSuite Inc.; (c) NetGain’s ability to develop, provide, support, service and maintain Products is dependent upon consent and authorization from NetSuite Inc. pursuant to a written agreement between NetGain and NetSuite Inc. (the “Developer Agreement”); (d) NetSuite and its representatives may have the ability to access Customer’s data and information; (e) Subject to taking all reasonable actions to secure continued content & authorization, NetGain shall have the right to terminate this Agreement upon the termination, cancellation or expiration of the NetSuite Developer Agreement for any reason; (f) In the event of a termination of the NetSuite Developer Agreement NetGain will seek to provide for the continued use of Products, in whole or in part, for the remainder of the term of this Agreement on the condition that all services, support and other obligations of NetGain shall be responsibility of NetSuite Inc. or the Customer and that NetGain shall have no liability for any such continued use or services. In such case of Termination by NetGain then all fees paid and payable by the Customer to NetGain for the current subscription shall be refunded in full.
Section 28. Notice. All notices, requests, demands, or other hereunder shall be in writing and shall be deemed given if delivered personally or if sent via overnight delivery to the parties’ mailing address. Additionally, NetGain may deliver notice using electronic means available as a function or feature of Products, and delivery of any notices by NetGain to Customer under the System shall be deemed received upon Customer’s login to Products.
Section 29. Force Majeure. Neither party shall be liable in damages, in breach or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by any act of God, flood, fire, storm, strike, lockout, war, riot, insurrection or any other cause beyond the reasonable control of the party whose performance is affected (a “ Force Majeure ”) to the extent the same directly prevents or delays the performance of such party’s obligations hereunder; provided that all reasonable actions have been taken to resolve such disruption.