ENTERPRISE SERVICES AGREEMENT
(LAST UPDATED: DECEMBER 2021)
PLEASE READ THE FOLLOWING NETFOUNDRY ENTERPRISE SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY. BY COMPLETING AND SUBMITTING AN ORDER FORM FOR SERVICES TO NETFOUNDRY (WHETHER THROUGH NETFOUNDRY’S WEBSITE, CUSTOMER PORTAL OR OTHER METHOD MADE AVAILABLE BY NETFOUNDRY), YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND, AFTER DUE CONSIDERATION, HEREBY AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE NETFOUNDRY POLICIES. YOU REPRESENT AND WARRANT THAT YOU ARE NOT A LEGAL MINOR; THAT YOU ARE COMPETENT TO ENTER INTO BINDING CONTRACTS; AND THAT YOU ARE NOT DEPENDING ON ANY PROMISES OR STATEMENTS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING ARISING OUT OF THIS AGREEMENT. THE PERSON WHO EXECUTES AND SUBMITS THIS AGREEMENT HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND ITSELF, THE COMPANY OR OTHER LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT.
“Affiliate” of a party means any entity that such party directly or indirectly controls, is controlled by, or is under common control with.
“Customer”, “you” or “your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity named in any Order Form.
“Customer Data” means all electronic data or information, including Personal Information, submitted by Customer and its End Users to NetFoundry or the Services.
“End Users” means persons who are authorized by Customer to use the Services.
“Fees” means the fees set forth in each Order Form and payable by Customer to NetFoundry for the Services.
“Harmful Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Intellectual Property Rights” means any inventions, patents, registered designs, unregistered designs, design rights, trade marks, topography rights, copyright, databases and rights in databases and all similar intellectual property or equivalent rights or forms of protection in any part of the world including, without limitation, all registrations and applications to register and the future right to apply for registration and renewal of any of the aforesaid items in any country or jurisdiction.
“NetFoundry”, “our” or “us” means NetFoundry Inc., a Delaware corporation, or its Affiliates providing the Services.
“Network” means the NetFoundry platform, which is a software-only connectivity solution that allows for the spinning up of secure, performant, application-specific zero trust networks with public Internet reach and scale.
“Order Form” means each order form for Services submitted by Customer and accepted by NetFoundry (whether through NetFoundry’s website, customer portal or other method made available by NetFoundry).
“Personal Information” means personally identifiable information or data concerning or relating to individuals which is collected or received by Customer in connection with its use of the Services, including but not limited to credit card or other financial account information, emails, email addresses, pass codes, addresses, social security numbers, driver’s license numbers, or other personal information regulated by Privacy Laws.
“Privacy Laws” means all applicable laws, regulations and orders which are relevant to the processing, security, use or disclosure of Personal Information, including but not limited to Regulation (EU) 2016/679 of the European Parliament and of the Council.
“Service Description” means the description of the relevant Service published by NetFoundry on its website or Portal.
“Service Level Agreement” means the NetFoundry service level agreement for the relevant Service purchased by Customer.
“Services” means the products and services that are ordered by Customer pursuant to an Order Form and made available by NetFoundry online through its website and/or other web pages designated by NetFoundry, including associated offline components, Software and the Network. Services exclude Third Party Applications.
“Software” means all software (in object code form) and associated written and electronic documentation and data provided to Customer by NetFoundry pursuant to this Agreement. Software excludes open source software.
“Third Party Applications” means online applications and offline software products provided by entities or individuals other than NetFoundry and that interoperate with the Services.
(a) Provision of Services. This Agreement sets forth the terms and conditions applicable to NetFoundry’s provision and Customer’s use of the Services purchased under each Order Form. The terms and conditions of this Agreement are made a part of and incorporated into each Order Form by this reference. Upon Customer’s submission of an Order Form and payment of applicable Fees, NetFoundry hereby authorizes Customer and its End Users to access and use the Services in accordance with the terms of this Agreement and the relevant Order Form and Service Description. This authorization is non-exclusive and non-transferable to any third party and is subject to Customer’s timely payment of the Fees and compliance with the terms of this Agreement.
(b) Modifications. NetFoundry reserves the right without any liability to Customer to modify any Service; provided that NetFoundry will notify Customer of any modification that materially reduces the features or functionality of the Service. Customer may terminate its subscription for such modified Service within 30 days of such notice and NetFoundry shall refund to Customer any prepaid Fees for the terminated Service for the remaining portion of the subscription term following the termination date. Customer’s failure to terminate the affected Service shall be deemed to constitute its acceptance of the modified Service.
(c) Service Levels. NetFoundry will provide support for the Services in accordance with the then current Support Terms published on our website and any Service Level Agreement purchased by Customer for the Services. Unless you purchase a Service Level Agreement from NetFoundry for the Services, NetFoundry provides the Services on an “as-is” basis and subject to any unavailability caused by force majeure events, any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within NetFoundry’s possession or control, and denial of service attacks. Services may be also temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation.
(e) Open Source Software. Services may be provided together with, or contain, certain open source software (including APIs or SDKs) under their respective open source license agreements. Open source software does not constitute a portion of the Services and is not licensed under this Agreement, but under the respective open source licenses. Customer accepts and agrees to comply with the terms and conditions in each such open source license.
(f) Free, Trial and Beta Services. All Services provided by NetFoundry on a free, trial, evaluation or beta basis, including any SDKs, are provided on an “as-is” basis, without any warranties (express or implied) or support of any kind. NetFoundry hereby reserves the right, at any time and without any liability to Customer, to modify, discontinue or terminate Customer’s access to and use of any free, trial, evaluation or beta Service.
3. Use of Services.
(a) Access and Use. Customer shall, and shall cause its End Users to, access and use the Services in compliance with the terms of this Agreement, the applicable Order Form and Service Description (including usage limits) and the NetFoundry Policies. Customer shall be responsible for all activities of its End Users.
(b) Restrictions. Customer shall not (and shall not authorize any third party to):
(i) sell, resell, lease or otherwise transfer the Services (except as expressly authorized in the Service Description);
(ii) make the Services available to anyone other than End Users or circumvent any End User or usage limits or other timing, use or functionality restrictions built into the Services;
(iii) use the Services to store or transmit Harmful Code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or in violation of Privacy Laws;
(iv) permit or attempt to gain unauthorized access to or use of the Services and shall notify NetFoundry promptly of any unauthorized access or use;
(v) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or
(vi) access or use the Services to monitor the performance or functionality of the Services, or for any other benchmarking or competitive purposes.
5. Fees and Payment.
(a) Fees. Customer shall pay NetFoundry the Fees set forth in each Order Form. NetFoundry reserves the right to change the Fees for any Service upon 30 days prior notice. Fee changes will become effective upon the renewal of the subscription term for the Service. If you do not cancel the renewal of the subscription term for any affected Service, then you will be deemed to have agreed to the change in fees.
(b) Payment Terms. All Fees are payable in United States dollars. Fees shall become due upon (i) the submission of each Order Form and (ii) the renewal of each subscription term for the Services. Customer hereby authorizes NetFoundry to charge the payment method provided by Customer in the Order Form or through the Portal for the Fees (including Taxes) due and payable for the Services. Any amounts not paid when due shall accrue monthly interest at the lesser of 1.5% or the maximum rate allowed by law.
6. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase of Services pursuant to this Agreement. If NetFoundry has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be charged to and paid by Customer. For clarity, NetFoundry is solely responsible for Taxes assessable against NetFoundry based on its income, property and employees.
7. Intellectual Property Rights.
(a) Software. NetFoundry grants Customer a personal, limited, revocable, non-transferable and non-exclusive license during the subscription term for the Services to use and to permit its End Users to use the Software solely as necessary for its receipt and use of the Services and Network in accordance with this Agreement.
(b) Restrictions. Customer shall not: (i) modify, translate, reverse engineer, decompile, disassemble, or create copies of, or derivative works, including products, services or software, based on, the Services or Software; or (ii) remove any proprietary notices, labels, or marks from the Services.
(c) Ownership and Proprietary Rights. All trademarks, service marks, trade names, logos, designs, brands, and service names used or displayed in the Services are marks of NetFoundry or its licensors (the "Marks"). Customer agrees not to use or display the Marks in any manner without NetFoundry’s express prior written permission. Other than the license granted under Section 7(a), NetFoundry and its suppliers and/or licensors own and shall retain all right, title and interest (including without limitation all Intellectual Property Rights), in and to the Software, Network, Services and Marks. Customer agrees that only NetFoundry shall have the right to maintain, enhance or otherwise modify the Software, Network, Services and Marks. If Customer or its End Users provide NetFoundry with reports of defects in the Software, Network and/or Services or proposes or suggests any changes, enhancements or modifications (collectively “Feedback”), Customer hereby grants NetFoundry the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into NetFoundry’s software products and/or services, without any obligation or compensation to Customer or its End Users. Except as expressly set forth in this Agreement, NetFoundry reserves all rights and grants Customer no licenses of any kind, whether by implication, estoppel, or otherwise.
(d) IP Claims.
(i) NetFoundry shall defend, indemnify and hold harmless Customer from and against any damages, claims, expenses, and liabilities (including reasonable attorney’s fees and legal costs) incurred by Customer as a result of claims of third parties that Customer’s use of the Services in accordance with this Agreement infringes those third parties’ Intellectual Property Rights (an “Infringement Claim”); provided that: (1) Customer promptly notifies NetFoundry in writing after learning of the Infringement Claim; and (2) Customer agrees to allow NetFoundry to fully control any litigation and settlement related to such Infringement Claim.
(ii) NetFoundry shall have no liability with respect to any Infringement Claim to the extent that such Infringement Claim is based on, or would have been avoided but for: (1) the combination or use of the Service by Customer with any third party product, service, equipment or software not provided by NetFoundry; (2) the use of the Service by Customer or its End Users in breach of this Agreement; or (3) any infringement or misappropriation of any Intellectual Property Rights by Customer or End Users (other than their use of the Service in accordance with the terms of this Agreement).
(iii) If there is an Infringement Claim for which NetFoundry is responsible hereunder, NetFoundry may, at its sole option: (1) obtain for Customer the right to continue using the Services; (2) modify the Services so that they are non-infringing; (3) replace the Services with a functionally equivalent, non-infringing service; or (4) if the alternatives above are not available or commercially feasible, NetFoundry may without any liability to Customer immediately terminate any infringing Services by written notice and NetFoundry shall refund to Customer any prepaid Fees for each terminated Service for the remaining portion of the subscription term following the termination date.
(iv) Notwithstanding anything in this Agreement to the contrary, this Section 7(d) is Customer’s sole and exclusive remedy for any intellectual property infringement claims hereunder. In no event shall NetFoundry be liable to Customer for any lost profits, revenue, or business opportunities, cost of replacement services or any other consequential damages arising out of any Infringement Claim.
(a) Confidential Information. “Confidential Information” means any and all proprietary or confidential information relating to a party's business, including, without limitation, product designs, product plans, data, trade secrets, software and technology, financial information, marketing plans, business opportunities, pricing information, inventions and know-how, that are disclosed hereunder, either directly or indirectly, whether in writing, verbally or otherwise.
(b) Non-Disclosure. A party (“Recipient”) that receives Confidential Information of the other party (“Disclosing Party”) under this Agreement shall hold such Confidential Information in strict confidence and take all commercially reasonable precautions to protect such Confidential Information (including, without limitation, all precautions it employs with respect to its own Confidential Information, but in no event less than reasonable care). Recipient shall not divulge, publish or otherwise reveal any Confidential Information other than (i) to its employees, agents, Affiliates, or representatives (collectively, “Representatives”), or (ii) with the specific prior written authorization of the Disclosing Party; provided, that any Representative given access to any Confidential Information must (1) have a legitimate “need to know” directly related to the purpose of this Agreement, and (2) be subject to obligations no less strict than the terms of this Section 8. Recipient shall be responsible for any Representative's breach of this Section 8. Recipient shall not copy, use, decompile or reverse engineer any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information. If Recipient is required by law or in any legal proceeding, to disclose any Confidential Information, it will give the Disclosing Party notice prior to any such disclosure so that it may seek an appropriate protective order. If, in the absence of a protective order, Recipient is compelled in a proceeding to disclose Confidential Information, it shall furnish only that portion of the Confidential Information which is legally required and to exercise its best efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information.
(c) Exclusions. This Agreement imposes no obligations with respect to information which: (i) was lawfully in Recipient’s possession before receipt from the Disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party without restriction on disclosure; or (iv) is developed by Recipient without use of or reference to the Confidential Information and such independent development can be shown by documentary evidence.
(d) Confidentiality Period. Recipient’s obligations with respect to Confidential Information under this Agreement shall expire 2 years from the date of receipt of the Confidential Information (except that with respect to any trade secrets, including product designs and technology, the obligations shall be perpetual). These obligations shall survive any termination or expiration of this Agreement.
(e) Return Or Destruction of Confidential Information. Upon termination of this Agreement or written request by the Disclosing Party, Recipient shall: (i) immediately cease using the Confidential Information; (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within 10 days of receipt of such request; and (iii) confirm in writing that it has complied with these obligations.
9. Customer Data.
(a) Limited NetFoundry Data Rights. Unless NetFoundry is required to provide support to Customer or an End User in accordance with a Service Level Agreement purchased by Customer, or Customer otherwise discloses Customer Data to NetFoundry, NetFoundry will not have any access to Customer Data. In the event that Customer discloses any Customer Data to NetFoundry under this Agreement, the parties hereby agree as follows:
(i) NetFoundry shall have the limited right to access and use any such Customer Data to the extent necessary to provide the Services or support in accordance with this Agreement and Customer shall obtain all necessary consents from its End Users for NetFoundry to do so;
(ii) NetFoundry acquires no right, title or interest from Customer or its End Users under this Agreement in or to any Customer Data, including any Intellectual Property Rights therein; and
(iii) NetFoundry shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of such Customer Data.
(b) Customer Obligations. Customer shall be responsible for the accuracy, quality and legality of all Customer Data and of the means by and purposes for which it was collected, stored, transferred and used. To the extent that Customer collects, stores, transfers, discloses or otherwise disseminates Customer Data in connection with its use of the Services, Customer shall (i) collect and process Personal Information in accordance with all applicable Privacy Laws, including obtaining all consents and approvals of End Users for use and disclosure of their Personal Information, (ii) maintain data protection policies and practices in accordance with standard industry practices and applicable law, and (iii) provide prompt written notice to NetFoundry of any unauthorized access, use or disclosure of Personal Information or any security breach that could affect NetFoundry. In such event, Customer shall immediately take remedial action as required by applicable Privacy Laws.
(a) Each party warrants to the other party that: (i) such party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; and (iii) the execution, delivery, and performance of this Agreement and each Order Form constitutes the legal, valid, and binding agreement of such party.
(b) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SERVICES AND NETWORK ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. NETFOUNDRY MAKES NO OTHER REPRESENTATIONS AND GIVES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SOFTWARE, SERVICES OR NETWORK PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH IN A SERVICE LEVEL AGREEMENT PURCHASED BY CUSTOMER, CUSTOMER ACKNOWLEDGES THAT NETFOUNDRY DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITIONS THAT THE SERVICES OR NETWORK WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
11. Indemnity. Customer agrees to indemnify, defend and hold NetFoundry and its officers, directors, employees, Affiliates and agents, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees), arising out of or in connection with Customer’s or its End Users’ (a) breach of this Agreement, (b) infringement of third party Intellectual Property Rights, or (c) negligence or willful misconduct.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL NETFOUNDRY OR ITS AFFILIATES BE LIABLE TO CUSTOMER, ITS END USERS OR AFFILIATES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OPPORTUNITIES, REVENUE, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETFOUNDRY AND ITS AFFILIATES WILL NOT BE LIABLE TO CUSTOMER, ITS END USERS OR AFFILIATES FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH ANY MODIFICATION, TERMINATION, OR SUSPENSION OF THE SERVICES (INCLUDING THE COST OF SUBSTITUTE SERVICES, OR ANY INVESTMENTS OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR USE OF THE SERVICES). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NETFOUNDRY’S AND ITS AFFILIATES’ AGGREGATE LIABILITY FOR ANY CLAIM UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO NETFOUNDRY AND ITS AFFILIATES UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE MONTHS BEFORE THE LIABILITY AROSE.
13. Term and Termination.
(a) Term. This Agreement shall commence upon Customer’s acceptance of this Agreement and placement of its first Order Form and shall continue in effect until either party gives 30 days’ written notice of termination to the other party (“Term”).
(b) Order Forms. Services purchased by Customer under any Order Form commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, the Services shall automatically renew for additional periods equal to the expiring subscription term or 1 year (whichever is shorter), unless either party gives the other party notice of non-renewal at least 30 days before the end of the relevant subscription term. If any Order Form survives the termination of this Agreement, such Order Form remains subject to the terms of the Agreement until the Order Form is terminated or expires pursuant to its terms.
(c) Termination. A party shall have the right to terminate this Agreement, including any applicable Order Form, upon the occurrence of the following events: (i) the other party is in material breach of this Agreement and fails to remedy the breach within 30 days after receiving written notice of the breach; or (ii) the other party: (1) has a receiver, trustee, or liquidator appointed over substantially all of its assets; (2) has an involuntary bankruptcy proceeding filed against it; (3) becomes insolvent, dissolves or suspends its business; or (4) files a voluntary petition of bankruptcy or reorganization.
(d) Right to Suspend or Discontinue Services. If Customer is in breach of this Agreement, NetFoundry may, without limiting NetFoundry’s other rights and remedies under this Agreement, suspend provision of the Services to Customer until the breach has been remedied. No suspension of the Services by NetFoundry under this Section shall entitle Customer to any refund or abatement of the Fees payable hereunder. NetFoundry may for any reason and without any liability to Customer discontinue any Service upon notice to Customer and shall refund to Customer any prepaid Fees for such Service for the portion of the subscription term following the termination date. NetFoundry will use its commercially reasonable efforts to provide Customer with at least ninety (90) days’ notice prior to discontinuing any Service.
(e) Rights upon Termination.
(i) Upon any termination by Customer under Section 13(c), NetFoundry shall refund to Customer any prepaid Fees for each terminated Service for the remaining portion of the subscription term following the termination date.
(ii) Upon any termination by NetFoundry under Section 13(c), Customer shall pay to NetFoundry any Fees payable for each terminated Service for the remaining portion of the subscription term following the termination date.
(iii) Any refund or payment required to be made hereunder shall be paid within 30 days of the termination date.
(iv) Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available. In no event shall any expiration or termination relieve Customer of the obligation to pay any Fees payable to NetFoundry for the period prior to the effective date of termination.
(f) Survival. This Section and Sections 5, 6, 7(c), 7(d), 8, 11, 12, 18, 19, 21, 22 and 23 shall survive termination of this Agreement or any Order Form.
14. Publicity. During the Term, NetFoundry may list Customer on its website and marketing materials as a customer of NetFoundry’s. Following the execution of this Agreement, the parties may issue a joint press release highlighting the relationship contemplated by this Agreement provided that neither party may publish any press announcement related to this Agreement with the prior approval of the other party.
15. Compliance with Laws. Each party shall comply with all applicable laws and regulations related to the performance of its obligations under this Agreement and the general conduct of its business, including, without limitation, all applicable anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act, Privacy Laws, and all export, re-export and import restrictions and regulations.
16. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, pandemic or other similar events beyond the reasonable control of such party.
17. Amendments. At any time during the Term, NetFoundry may update, amend, modify or supplement the terms of this Agreement or the NetFoundry Policies upon notice to Customer. Any amendments to this Agreement shall be binding as of the effective date set forth in NetFoundry’s notice. In the event that any amendment to this Agreement materially and adversely affects Customer rights under this Agreement, Customer may terminate this Agreement within 30 days of the date of the notice of amendment. Customer’s continued use of the Services after 30 days of any notice of amendment to this Agreement shall be deemed to constitute Customer’s acceptance of the amendment.
18. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York and the parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the State of New York for any dispute arising out of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to costs and attorneys' fees.
19. Waiver of Jury Trial. Each party agrees to waive the right to trial by jury with respect to any proceeding arising out of this Agreement.
20. Notices. NetFoundry may provide routine notices and communications to Customer (including any notices of amendments to this Agreement and the NetFoundry Policies) by posting to Customer’s Portal account or by contacting Customer at any e-mail address, postal address or fax number that Customer has provided through the Customer Portal. Customer shall provide notices to NetFoundry under this Agreement to the following address: NetFoundry, Inc., 101 South Tryon Street, Suite 2700, Charlotte, NC 28280, U.S.A., Attention: Legal Department. Any legal notices under this Agreement, including without limitation notices regarding termination, breach, indemnification, or other non-routine matters, shall be effective only if delivered in writing and in compliance with this Section. Notice shall be deemed to be given: (a) as of the date delivered if delivered personally; (b) 1 day after delivery if sent by overnight courier; or (c) upon receipt if sent by certified mail, return receipt requested; in either case to the respective address for the party as set forth herein or in the Portal.
21. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this Agreement will nevertheless be given full force and effect.
22. No Waiver. No waiver will be effective unless it is in writing signed by the parties. No waiver of any breach of this Agreement will be deemed a waiver of any other breach of this Agreement.
23. Assignment. Customer may not assign this Agreement or any Order Form or transfer any of its rights or obligations hereunder, including by operation of law, without the prior written consent of NetFoundry, which may be withheld in its sole discretion. Any attempted assignment in violation of this Section will be void. This Agreement will inure to the benefit of and will be binding upon the permitted successors and assigns of the parties.
24. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement, and supersedes all prior or contemporaneous representations, understandings, proposals, and agreements. In the event of any conflict between the terms of this Agreement, any Order Form, the Service Description, NetFoundry Policies or any other document attached to and incorporated into this Agreement, the following order of precedence shall prevail: (a) first, the terms of this Agreement; (b) second, the Order Form; (c) third, the Service Description; (d) fourth, the NetFoundry Policies; and (d) fifth, all other documents attached to and incorporated into this Agreement.