Self Service Subscriptions Agreement
(LAST UPDATED: NOVEMBER 2021)
THESE TERMS OF SERVICE GOVERN YOUR SUBSCRIPTION FOR, AND USE OF, NETFOUNDRY’S FREE, TRIAL AND PAY AS YOU GO SERVICES ("SERVICES").
BY (1) CREATING AN ACCOUNT WITH NETFOUNDRY AND CLICKING “SIGN UP” OR SIMILAR CHECK BOX PRESENTED TO YOU TO SUBSCRIBE FOR THE SERVICES OR (2) USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
YOU REPRESENT AND WARRANT THAT YOU (1) ARE NOT A LEGAL MINOR, (2) ARE COMPETENT TO ENTER INTO BINDING CONTRACTS, (3) ARE NOT DEPENDING ON ANY PROMISES OR STATEMENTS OTHER THAN THOSE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, AND (4) HAVE THE AUTHORITY TO BIND YOURSELF OR THE ENTITY YOU REPRESENT TO THESE TERMS OF SERVICE. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING ARISING OUT OF THESE TERMS OF SERVICE.
Upon signing up for a Service and payment of any applicable fees through your NetFoundry account, NetFoundry authorizes you and your End Users to access and use the Services in accordance with these Terms of Service and the relevant description of the Service published by NetFoundry on its website or Portal (“Service Description”). NetFoundry reserves the right without any liability to you to discontinue or modify any Service at any time. We will give you 30 days’ notice prior to discontinuing any Service.
You and your End Users agree to use the Services in accordance with these Terms of Service, the relevant Service Description and the NetFoundry Policies. You will be solely responsible for your and your End Users activities in using the Services.
You will not (and will not authorize any third party to): (1) sell, resell, lease or otherwise transfer the Services; (2) 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; (3) 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; (4) permit or attempt to gain unauthorized access to or use of the Services and shall notify NetFoundry promptly of any unauthorized access or use; (5) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (6) access or use the Services to monitor the performance or functionality of the Services, or for any other benchmarking or competitive purposes.
We will provide you support for the Services in accordance with the then current Support Terms published on our website and any Service Level Agreement purchased by you 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.
You will be required to pay the fees for Pay as You Go Services at the time of signing up for those Services. In addition, if you use Services in excess of the usage limits set forth in the applicable Service Description, you will also be required to pay fees for such excess usage at the then current rates charged by NetFoundry. All fees are payable in United States dollars.
We reserve the right to change the fees for any Service upon 30 days prior notice to you. 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.
Except for any Services discontinued by us, fees are not refundable. If you decide to cancel a subscription term for any Service, you will forfeit all fees paid by you for the entire subscription term. If we discontinue any Service, NetFoundry will issue you a refund of any prepaid Fees for the remainder of your subscription term for the affected Service.
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature (“Taxes”). You are responsible for paying all Taxes associated with your purchase of Services. If NetFoundry has the legal obligation to pay or collect Taxes for which you are responsible, the appropriate amount shall be charged to and paid by you. NetFoundry is solely responsible for Taxes assessable against NetFoundry based on its income, property and employees.
In order to create an account and sign up for Services you may be required to provide NetFoundry with your credit card information. Any credit card information that you provide us must be valid, and kept current by you during the subscription term for the Services. By providing us with credit card information, (1) you represent and warrant that you are authorized to use such credit card, and (2) you are authorizing NetFoundry to charge your credit card on a monthly, annual, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Services that you sign up for, including fees for excess usage.
INTELLECTUAL PROPERTY RIGHTS
NetFoundry grants you a personal, limited, revocable, non-transferable and non-exclusive license during the subscription term for the Services to use and to permit your End Users to use the Software solely as necessary for your receipt and use of the Services and Network in accordance with these Terms of Service.
You will not: (1) 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 (2) remove any proprietary notices, labels, or marks from the Services.
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 ("Marks"). You will not to use or display the Marks in any manner without NetFoundry’s express prior written permission.
Other than the limited license granted to you under these Terms of Service, NetFoundry and its licensors own and retain all right, title and interest (including without limitation all Intellectual Property Rights), in and to the Software, Network, Services and Marks. You agree that only NetFoundry and its licensors have the right to maintain, enhance or otherwise modify the Software, Network, Services and Marks. If you or your End Users provide us with reports of defects in the Software, Network and/or Services or proposes or suggest any changes, enhancements or modifications (“Feedback”), you hereby grant 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 you or your End Users.
Except as expressly set forth in these Term of Service, NetFoundry reserves all rights and grants you no licenses of any kind, whether by implication, estoppel, or otherwise.
A party that receives Confidential Information of the other party agrees to hold such Confidential Information in strict confidence and take reasonable care and precautions to protect such Confidential Information from disclosure. The recipient agrees not to divulge, publish or otherwise reveal any Confidential Information other than to its employees, agents or representatives who have a legitimate “need to know” directly related to the performance of these Terms of Service. These Terms of Service impose no obligations with respect to information which: (1) was lawfully in a recipient’s possession before receipt from the disclosing party; (2) is or becomes a matter of public knowledge through no fault of recipient; (3) was rightfully disclosed to recipient by a third party without restriction on disclosure; or (4) is developed by recipient without use of or reference to the Confidential Information and such independent development can be shown by documentary evidence.
You agree to be responsible for the accuracy, quality and legality of all Your Data and of the means by and purposes for which it was collected, stored, transferred and used. If you or your End Users collect, store, transfer, disclose or otherwise disseminate Your Data in connection with your use of the Services, you agree to (1) 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, (2) maintain data protection policies and practices in accordance with standard industry practices and applicable law, and (3) promptly notify us of any unauthorized access, use or disclosure of Personal Information or any security breach that could affect the Services or Network and to immediately take any action required by applicable Privacy Laws.
NetFoundry shall have the right to access and use Your Data for the sole purpose of providing you the Services or support in accordance with these Terms of Service. NetFoundry acquires no right, title or interest from you or your End Users in or to Your Data, including any Intellectual Property Rights therein. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
THIRD PARTY APPLICATIONS
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 these Terms of Service, but under the respective open source licenses. You acknowledge and agree to the terms and conditions in each such open source license and to comply with all such terms and conditions.
EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS OF SERVICE, 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 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 ANY SERVICE LEVEL AGREEMENT PURCHASED BY YOU, NETFOUNDRY DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITIONS THAT THE SERVICES OR NETWORK WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
You agree 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 your or your End Users’ (1) breach of these Terms of Service, or (2) infringement of third party Intellectual Property Rights.
LIMITATION OF LIABILITY
IN NO EVENT WILL NETFOUNDRY OR ITS AFFILIATES BE LIABLE TO YOU, YOUR END USERS OR AFFILIATES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OPPORTUNITIES, REVENUE, USE, OR DATA), EVEN IF NETFOUNDRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETFOUNDRY AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU, YOUR END USERS OR AFFILIATES FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH ANY MODIFICATION, DISCONTINUATION, TERMINATION, OR SUSPENSION OF THE SERVICES (INCLUDING THE COST OF SUBSTITUTE SERVICES, OR ANY INVESTMENTS OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICES). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NETFOUNDRY’S AND ITS AFFILIATES’ TOTAL LIABILITY FOR ANY CLAIM UNDER THESE TERMS OF SERVICE WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE.
The subscription term of each Service will commence on the date you sign up for the Service and will end on the expiration date specified in the applicable Service Description. The subscription term of each Service will automatically renew for additional periods equal to the expiring subscription term, unless either party sends a notice of non-renewal at least 30 days before the end of the current subscription term.
NetFoundry may terminate a subscription for Services upon the occurrence of one of the following events: (1) your breach of these Terms of Service and failure to remedy the breach within 30 days after notice of the breach; (2) your material breach of these Terms of Service that cannot be remedied; or (3) if you: (a) have a receiver, trustee, or liquidator appointed over substantially all of your assets; (b) have an involuntary bankruptcy proceeding filed against you; (c) become insolvent, dissolve or suspend your business; or (d) file a voluntary petition of bankruptcy or reorganization.
If NetFoundry terminates a subscription for Services in accordance with the terms above, you will forfeit all fees paid for the remainder of the subscription term for the Services.
NetFoundry may, without limiting any other right that may be available, suspend your use of the Services until your breach has been remedied. No suspension of the Services by NetFoundry will entitle you to any refund of fees paid for the Service.
Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available to NetFoundry. In no event will any expiration or termination of a subscription relieve you of the obligation to pay the fees for the period prior to the effective date of termination.
COMPLIANCE WITH LAWS
Each party shall comply with all applicable laws and regulations related to the performance of its obligations under these Terms of Service 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.
We may send you notices and communications by posting to your Portal account or by contacting you directly at any e-mail address or postal address that you provide through the Portal.
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.
These Terms of Service shall be governed and construed in accordance with the laws of the State of New York and you 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 these Terms of Service and your use of the Services.
WAIVER OF JURY TRIAL
Each party agrees to waive the right to trial by jury with respect to any proceeding arising out of these Terms of Service.
If any provision of these Terms of Service is determined to be invalid or unenforceable, then the remaining provisions will nevertheless be given full force and effect.
No waiver will be effective unless it is in writing signed by the waiving party. No waiver of any breach of these Terms of Service will be deemed a waiver of any subsequent breach.
You may not assign these Terms of Service or transfer any of rights or obligations thereunder, including by operation of law, without the prior written consent of NetFoundry. Any attempted assignment in violation of these Terms of Service will be void. This Agreement will inure to the benefit of and will be binding upon the permitted successors and assigns of the parties.
These Terms of Service constitute the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, proposals, and agreements. In the event of any conflict between these Terms of Service, any Service Description, the NetFoundry Policies or any other document incorporated herein by reference, the following order of precedence shall prevail: (1) these Terms of Service; (2) the Service Description; (3) the NetFoundry Policies; and (4) all other documents incorporated herein by reference.
“Confidential Information” means any proprietary or confidential information relating to a party's business, that is disclosed by either party to the other in connection with these Terms of Service, either directly or indirectly, whether in writing, verbally or otherwise.
“End Users” means persons who are authorized by you to use 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”, “we” 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.
“Personal Information” means personally identifiable information or data concerning or relating to individuals which is collected or received in connection with your use of your NetFoundry account the Portal or 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 Level Agreement” means the current version of the applicable Service Level Agreement for the Service, to the extent purchased by you.
“Software” means all software (in object code form) and associated written and electronic documentation and data included in the Service provided to you by NetFoundry. Software excludes open source software.
“Third Party Applications” means applications and software products, including APIs and SDKs, provided by entities or individuals other than NetFoundry and that interoperate with the Services.
“You” or “Your” means you individually or the entity for which you are accepting these Terms of Service and subscribing for Services.
“Your Data” means all electronic data or information, including Personal Information, submitted by you and your End Users to NetFoundry or the Services.