Master Service Agreement
PLEASE READ THE FOLLOWING NETFOUNDRY MASTER SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY. BY EXECUTING AND SUBMITTING THIS AGREEMENT TO 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. 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. IF YOU ARE A COMPANY OR OTHER LEGAL ENTITY, THE PERSON WHO EXECUTES AND SUBMITS THIS AGREEMENT HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE COMPANY OR OTHER LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT.
1. Definitions. For the purposes of this Agreement all capitalized and undefined terms used herein shall have the meanings set forth on Exhibit A.
(a) Provision of Services. This Agreement provides the terms and conditions applicable to Customer’s use of the Services. Upon execution of this Agreement and an Order Form, NetFoundry hereby authorizes Customer and its End Users to access and use the Services in accordance with the terms of this Agreement. 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) Service Levels. Unless Customer purchases a Support Program Package from NetFoundry for the Services, NetFoundry provides the Services on an “as-is” basis and subject to any unavailability caused by circumstances beyond NetFoundry’s control, including any force majeure events and 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. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation.
(c) Modification or Discontinuation of Services. NetFoundry may in its sole discretion modify or discontinue all or any portion of the Services at any time upon giving Customer at least thirty (30) days prior written notice.
(d) Third Party Applications. NetFoundry or third parties may from time to time make available to Customer third party products or services, including but not limited to Third Party Applications and implementation, customization and other consulting services. Any acquisition by Customer of such third party products or services, and any exchange of data between Customer or its End Users and any such third party, is solely between Customer or the applicable End User, as the case may be, and the applicable third party. NetFoundry does not warrant or support any third party products or services, whether or not they are designated by NetFoundry as “certified” or otherwise, except as expressly specified in an Order Form. If Customer or any of its End Users installs or enables Third Party Applications for use with the Services, Customer acknowledges that NetFoundry may allow providers of those Third Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Services. NetFoundry shall not be responsible for any disclosure, modification or deletion of any Customer Data resulting from any such access by Third Party Application providers. The Services may contain features designed to interoperate with Third Party Applications. To use such features, Customer may be required to obtain access to such Third Party Applications from their providers. If the provider of any such Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, NetFoundry may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
4. Responsibilities and Restrictions.
(a) Customer’s Responsibilities.
(ii) Customer shall be responsible for all activities of its End Users.
(iii) 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.
(b) Restrictions. Customer shall not (and shall not authorize any third party to):
(i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services;
(ii) sell, resell, lease or otherwise transfer the Services;
(iii) remove any proprietary notices, labels, or marks from the Services;
(iv) access the Services in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the Services;
(v) use the Services to store or transmit 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;
(vi) use the Services to store or transmit Harmful Code;
(vii) permit unauthorized access to or use of the Services and shall notify NetFoundry promptly of any unauthorized access or use;
(viii) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or
(ix) attempt to gain unauthorized access to the Services or their related systems or
5. Fees and Payment.
(a) Fees. Customer shall pay NetFoundry the Fees set forth in each Order Form. Unless otherwise stated in the applicable invoice, NetFoundry reserves the right to change the Fees for the Services upon thirty (30) days’ notice to Customer.
(b) Payment Terms. Unless otherwise stated in the applicable Order Form, all Fees shall be paid within thirty (30) days after the date of the invoice therefor and are payable in United States dollars. Any amounts not paid when due shall accrue annual interest at the lesser of 18% 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, excluding only taxes based on NetFoundry’s income. If NetFoundry has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer within thirty (30) days of NetFoundry’s invoice therefor.
7. Ownership and Proprietary Rights. 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, and Services. Customer agrees that only NetFoundry shall have the right to maintain, enhance or otherwise modify the Software, Network, and Services. 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, including, without limitation, the Services, without any obligation or compensation to Customer or its End Users. 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. 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.
(a) Confidential Information. “Confidential Information” means any and all proprietary or confidential information relating to a party's business disclosed hereunder, either directly or indirectly, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date.
(b) 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.
(c) Non-Disclosure. A party (“Recipient”) which receives Confidential Information of the other party (“Disclosing Party”) under this Agreement shall hold Confidential Information in strict confidence and take all necessary 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 and bound by the terms of this Agreement. Recipient shall be responsible for each Representative's compliance with the terms of this Agreement. 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.
(d) Confidentiality Period. Recipient’s obligations with respect to Confidential Information under this Agreement shall expire five (5) 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 seven (7) business days of receipt of such request; and (iii) upon request of the Disclosing Party, confirm in writing that it has complied with these obligations.
9. Customer Data.
(a) Customer Obligations.
(i) Without limiting any other provision of this Agreement, Customer shall collect and process Personal Information in connection with its use of the Services in compliance with all applicable Privacy Laws.
(ii) Customer’s data protection policies and practices are, and will be maintained, at a minimum in accordance with standard industry practices applicable to data protection, information security and privacy.
(iii) Customer shall provide immediate written notice of any unauthorized access, use or disclosure of Personal Information or any security breach that could affect NetFoundry or could impact the Network or the Services. In such event Customer shall immediately take remedial action as required by the applicable Privacy Laws and as requested by NetFoundry.
(b) Limited NetFoundry Data Rights. In the event that NetFoundry is disclosed or given access to any Customer Data in providing the Services 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 in accordance with this Agreement and Customer shall obtain all necessary consents from the persons providing the Customer Data for NetFoundry to do so.
(ii) NetFoundry acquires no right, title or interest from Customer or End Users under this Agreement in or to any Customer Data, including any intellectual property rights therein.
(iii) NetFoundry shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of such Customer Data.
(iv) NetFoundry shall not (1) modify Customer Data except to the extent required to provide the Services, (2) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (3) access Customer Data except to provide the Services and prevent or address service or technical problems, or as agreed by the parties in connection with Customer support matters.
(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 constitutes the legal, valid, and binding agreement of such party.
(b) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES 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 SERVICES 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, CUSTOMER ACKNOWLEDGES THAT NETFOUNDRY DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITIONS THAT THE SERVICES WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
12. LIMITATION OF LIABILITY. EXCEPT FOR (A) A PARTY’S BREACH OF THE TERMS OF SECTION 9 (CONFIDENTIALITY), (B) CUSTOMER’S OBLIGATIONS ARISING UNDER SECTION 12 (INDEMNITY), AND (C) CUSTOMER’S BREACH OR MISAPPROPRIATION OF NETFOUNDRY’S INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW (I) NEITHER PARTY'S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WILL EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, AND (II) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13. Term and Termination.
(a) Term. This Agreement shall commence as of the Effective Date and shall continue in effect until either party gives thirty (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 one year (whichever is shorter), unless either party gives the other party notice of non-renewal at least thirty (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 for Convenience. Unless an Order Form expressly provides otherwise, (i) NetFoundry may terminate and/or discontinue the Services under an Order Form upon thirty (30) days’ prior written notice to Customer without any further obligation or liability to Customer, and (ii) Customer shall have no right to terminate an Order Form for convenience.
(d) Termination for Cause. Each party shall have the right to terminate an Order Form upon delivery of written notice to the other party 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 ten (10) 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.
(e) Suspension of 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.
(f) Rights upon Termination.
(i) Upon any termination (1) for cause by Customer or (2) for convenience by NetFoundry, NetFoundry shall refund Customer any prepaid Fees paid by Customer for the remainder of the service terms of all terminated Order Forms after the effective date of termination.
(ii) Upon any termination for cause by NetFoundry, Customer shall pay any unpaid Fees covering the remainder of the service terms of all terminated Order Forms after the effective date of termination.
(iii) 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.
(g) Survival. This Section and Sections 6, 8, 10, 11, 12, 14, 17, 18, 20, and 23 and any other section that by its nature is intended to survive shall survive termination of this Agreement or any Order Form.
14. Compliance with Laws. Each party shall comply with all applicable laws and regulations 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 of all agencies and/or authorities of any applicable countries.
15. Use of NetFoundry’s Services is permitted only in compliance with US trade sanctions. By accepting these terms and conditions, you certify that you and your business are (i) not located in or a resident of Cuba, Iran, North Korea, Syria or the Crimea region of Ukraine; (ii) not the government of, or an entity that is owned or controlled by the government of, Cuba, Iran, North Korea, Syria or Venezuela; (iii) not a national of Cuba; (iv) not a Specially Designated National and Blocked Person (SDN) and (iv) not owned 50% or more by one or more SDNs. By accepting these terms and conditions, you agree to not use the software for any end use prohibited pursuant to the US Export Administration 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 or other similar events beyond the reasonable control of such party, provided that the party relying upon this Section 16: (a) gives prompt written notice thereof; and (b) takes all steps reasonably necessary to mitigate the effects of the force majeure event.
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 U.S. state in which NetFoundry’s principal business office is located 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. Customer 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 by posting to Customer’s Customer Portal account or by contacting Customer at any e-mail address, postal address or fax number that Customer has provided through the Customer Portal. 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) one (1) day after delivery if sent by overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested; in either case to the respective address for the party as set forth herein or in the Customer 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.
25. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, taken together, shall constitute a single agreement. A document signed and transmitted electronically is to be treated as an original and shall have the same binding effect as an original signature on an original document.
Exhibit A to NetFoundry Master Services Agreement
(a) “Affiliate” of a party means any entity that such party directly or indirectly controls, is controlled by, or is under common control with.
(b) “Customer Data” means all electronic data or information, including Personal Information, submitted by Customer and its End Users to the Services.
(c) “End Users” means persons who are authorized by Customer to use the Services.
(d) “Fees” means the fees (as specified in each Order Form) payable by Customer to NetFoundry for the Services.
(e) “Harmful Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
(f) “Intellectual Property Rights” includes 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.
(g) “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.
(h) “Personal Information” shall mean 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.
(i) “Privacy Laws” shall mean 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.
(j) “Order Form” means the documents for placing orders pursuant to this Agreement that are entered into between NetFoundry and Customer from time to time, including any service schedules or scopes of work attached thereto. The form of Order Form is attached as Exhibit B. No Order Form shall be binding on NetFoundry unless and until it has been executed by NetFoundry.
(k) “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.
(l) “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.
(m) “Support Program Package” means the support program package for the Services that may be purchased by Customer in accordance with the terms of any Order Form.
(n) “Third Party Applications” means online applications and offline software products provided by entities or individuals other than NetFoundry and are clearly identified as such, and that interoperate with the Services.