Customer Information (“Customer”)
The Customer will be clearly identified on the Netgain Quote document (“Quote”).
This standard Statement of Work (“SOW”) describes the standard license and professional services activities to be performed by Netgain Solutions, Inc. (“Netgain”) and Customer, as well as the standard terms and conditions for license and service agreements agreed to between Netgain and Customer, when both parties directly sign an Estimate provided by Netgain. The effective date of any license and SOW is the date signed on the Quote Form (“Effective Date”).
License Agreement with Netgain
Netgain has developed Native NetSuite product applications that it makes available for NetSuite customers to bundle and deploy directly within their NetSuite instance(s) for a specified term. The Quote will indicate which Netgain product(s) the Customer wishes to purchase, including the following:
Customer acknowledges the volume and pricing agreements outlined in the Quote and referenced in Section 4 Pricing & Payment Terms, and Customer agrees that the maximum volume shall not exceed the number outlined in this License Agreement.
NetLease for Lessees Product Description
NetLease was developed to support the accounting for leases under the new lease accounting standards within NetSuite, including the following:
NetLease for Lessors Product Description
NetLease for Lessors was developed to support the accounting for lessor leases under lease accounting standards within NetSuite, including the following:
NetAsset Product Description
NetAsset was developed to support the tracking and accounting for fixed and intangible assets under associated accounting standards within NetSuite, including the following:
NetLoan Product Description
NetLoan was developed to support the tracking and accounting for notes receivable and debt liabilities under associated accounting standards within NetSuite, including the following:
Ongoing Product Updates and Enhancements
Netgain will be responsible for providing periodic updates to the system and functionality as it relates to updates to accounting standard guidance and official interpretations, as well as supporting enhancements for overall system performance.
In addition to Netgain product licensing, Customer has engaged Netgain to support the deployment, installation, setup, and configuration of the Netgain Product(s) into Customer’s NetSuite instance. Netgain will perform all Professional Services remotely unless otherwise agreed to.
Standard Scope of Services
The following activities will be performed during this SOW. The primary responsibility for each activity will reside with Customer, Netgain, or both, as outlined in the Scope of Services below, unless separately indicated in the signed Quote.
Supplemental Scope of Services—Migration from Sandbox to Production
Customer may have both a Sandbox and Production NetSuite environment, in which case Customer is responsible for the complete setup and migration of data from Sandbox to Production.
Netgain will perform the activities in the Scope of Services within a single NetSuite environment (Production or Sandbox), and unless specifically identified in the signed Quote, Customer or Netgain will be responsible for activities as indicated in the table below.
Any Professional Services not expressly included in the above Scope of Services sections are considered out of scope for Netgain.
Customer Obligations
Customer acknowledges that Netgain’s ability to perform the outlined Professional Services depends upon Customer’s fulfillment of the following obligations and project assumptions:
Project timeline Quotes are based on availability of Customer resources and key decision makers. Lack of access or change to project stakeholders may impact project timelines and costs if decisions cannot be made in timely fashion, and Netgain will not be responsible for any deficiency in performing Professional Services if such deficiency results from Customer’s failure to meet the obligations above. Customer acknowledges that if Netgain’s cost of providing Professional Services are likely to increase directly because of failure to meet the obligations listed in this SOW, failure to provide reasonable Cooperation, or because of any other circumstance outside of Netgain’s control, then Netgain will provide a Change Request for any increased costs.
Professional Services Period and Timeline
The Professional Services herein must be completed within the later the completion date listed on the Quote or 90 days from the signature date of the SOW. Any portion of the Professional Services not used within the Professional Services Period will be automatically forfeited by Customer, with no further action required of either party, and Customer will not be entitled to a refund, or any credit toward additional or other Professional Services, for any unused portion of the fees paid for any unused portion of the Professional Services. Customer may not apply any portion of unused Professional Services or fees paid, for any Professional Services other than the Professional Services stated in this SOW. In order for Netgain to provide Professional Services to Customer after the Professional Services Period, Customer and Netgain must mutually agree under a separate SOW, to the terms and fees for such Professional Services. Netgain is not obligated to perform tasks related to changes in time, scope, cost, or contractual obligations until Customer and Netgain agree to the proposed change to this SOW.
License and Services Fees
Customer acknowledges that the Quoted total price indicated in the Quote is based solely on the information provided to Netgain and the assumptions documented in this SOW. Any requirement(s) not included herein, or items not contemplated, will be considered outside of the scope of this SOW and will be handled through a Change Request and may result in additional cost.
Because Professional Services are typically performed remotely, no expenses are expected under this agreement, unless otherwise agreed to and provided for in the Quote.
Adjustments to License Agreements based on Volume Changes
The maximum volume (which may vary based on Product Type) shall not exceed the number Customer has purchased, as indicated on the Quote. Customer may, from time to time during any subscription term, purchase additional volume in excess of the volume agreed in the Quote. If Customer wishes to purchase additional volume, Customer shall send a request to Netgain, and the Customer discount applied in the Quote shall also be applied to the pricing for the updated tier.
Additional License and SOW Terms & Conditions in Exhibit A
This Netgain Product Licensing Agreement and Professional Services Statement of Work is subject to the additional terms and conditions outlined in Exhibit A: Terms & Conditions.
A Netgain Quote may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of the Quote executed in ink by both parties. The Quote and standard SOW is valid through the date indicated on the Quote and shall become binding upon execution by Customer and acceptance by Netgain.
With Signature of the Quote, Netgain and Customer acknowledge that they may have had previous discussions related to the performance by Netgain of Professional Services for Customer and the possible strategies which may be used by Netgain to implement Products and functionality within NetSuite. This standard SOW and the Quote/Order Form (including any Exhibits hereto) will constitute the entire understanding between Customer and Netgain and is intended as the final expression of the agreement regarding the Software Services Agreement and Professional Services to be provided by Netgain. The parties expressly disclaim any reliance on any and all prior agreements, understandings, RFPs, verbal and/or written communications related to the Professional Services to be provided by Netgain. Any amendment or modification to this SOW shall not be valid, enforceable, or binding on the parties unless such amendment or modification (i) is a written instrument duly executed by the authorized representatives of both parties and (ii) references this standard SOW and identifies the specific Sections contained herein which are to be amended or modified.
Professional Services Agreement Terms & Conditions
1. Training Scope of Services
1.1. Training Deliverables. Customer is prohibited from: (a) reselling or sublicensing any training Deliverables.
1.2. For Onsite Delivery. When provided for in the SOW, Customer is responsible for providing appropriate training facilities for the training delivery, including without limitation Internet connectivity, student access to a Demo Account to which Customer may be granted access, projector, student computers and other reasonable classroom amenities.
2. Change Request Process
If Customer or Netgain requests a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within three (3) business days of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. Netgain will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Such charges shall not exceed the previously agreed day rates. Executed Change Orders shall be deemed part of, and subject to, this SOW. If the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management for resolution.
3. Project Materials
3.1 NetSuite Custom Records and Custom Transactions. Netgain products require the use of Custom Records and Custom Transactions. These SuiteCloud features are governed by NetSuite’s SuiteCloud Terms of Service, which can be accessed at www.netsuite.com/termsofservice.
3.2 Deliverables. Netgain shall own all rights, title and interest in and to the Deliverables (excluding any Customer Confidential Information provided to Netgain for its provisioning of Professional Services), and related intellectual property rights. Netgain shall have the right to use any such Customer Confidential Information solely for the purpose of providing the Professional Services to Customer hereunder. Deliverables are Netgain Confidential Information and Customer may not reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, create derivative works of, assign, sell, lease, rent, license, sublicense or grant a security interest in all or any portion of the Deliverables. Subject to terms and conditions of this SOW and during the Term, Netgain hereby provides Customer with a limited, non-exclusive, nontransferable (except in connection with an assignment under Section 14 of this SOW and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service.
3.3 Tools. Notwithstanding any other provision of this SOW: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Netgain to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables or as otherwise agreed by Customer; and (ii) the term “Deliverables” shall not include the Tools. Tools are Netgain Confidential Information.
4. Professional Services Warranty
4.1 Professional Services Warranty. Netgain warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Professional Services in accordance with this SOW; and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards. Netgain’s ability to successfully perform hereunder is dependent upon Customer’s provision of timely information, access to resources, and participation. If through no fault or delay of Customer the Professional Services do not conform to the foregoing warranty, and Customer notifies Netgain within ninety (90) days of Netgain’s delivery of the Professional Services, Customer may require Netgain to re-perform the non-conforming portions of the Professional Services.
4.2 Disclaimer. SECTION 4.1 ABOVE SETS FORTH THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES RELATED TO THE PROFESSIONAL SERVICES, DELIVERABLES, AND TOOLS UNDER THIS AGREEMENT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NONINFRINGEMENT. EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES AND DELIVERABLES PROVIDED TO CUSTOMER ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS.
5. Payment Provisions
5.1 Fees and Payment. All fees payable are due upon receipt of the invoice unless otherwise specified in your Quote/Order. Customer shall pay the fees and expenses as specified in the applicable Quote or SOW.
5.2 Taxes. Netgain fees do not include any local, state, federal or foreign taxes, VAT, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this SOW, excluding only taxes based on Netgain’s income. If Netgain 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 unless Customer provides Netgain with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Term and Termination
6.1 Term. This Subscription License Quote and SOW shall commence on the Effective Date of the agreement, Quote/Order Form or SOW referencing this Subscription License and SOW and shall continue for the length of time referenced in the Quote/Order or Subscription License and SOW Forms for the Subscription License and Professional Services. Each new Subscription License and SOW shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable Subscription License and SOW, or as otherwise set forth in the applicable Subscription License and SOW. Once signed by both parties, a Subscription License and SOW and/or an Quote/Order Form shall be non-cancellable, except as otherwise explicitly stated in such Subscription License and SOW or Quote/Order Form.
6.2 Termination. This Subscription License and SOW will terminate automatically when the Main Terms and all Subscription Licenses and SOWs and agreements referencing this Subscription License and SOW are terminated or expired. Additionally, either party may terminate this Subscription License and SOW for convenience upon written notice in the event there are no active Subscription License and SOWs hereunder. Upon termination or expiration of this Subscription License and SOW, Customer shall have no rights to continue use of the Deliverables and Tools.
7. Confidentiality
For purposes of this SOW, “Confidential Information” means: (a) the terms of this SOW; (b) the pricing and other terms reflected in all SOWs and (c) any commercial, financial, marketing, business, technical or other data, security measures and Professional Services Agreement procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this SOW or an SOW, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by Netgain or on behalf of Netgain regarding Netgain’s products and services (for purposes of providing or improving Netgain products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Customer-specific information.
Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this SOW or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Either party may disclose Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
8. No Rendering of Accounting Advice
Netgain neither accepts requests for accounting advice or services nor offers accounting advice or services. Any accounting, tax, or financial information provided during the term of this Statement of Work is provided for informational purposes only and is not intended to substitute for obtaining accounting, tax, or financial advice from a professional accountant. Information provided by Netgain through Customer’s relationship is not intended to create, and receipt does not constitute, an accountant-client relationship. Customers are advised not to act upon provided information without seeking the service of a professional accountant acting in that capacity.
9. Limitations of Liability for Professional Services
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE APPLICABLE SOW FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, ACCOUNTING DIFFERENCES, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE APPLICABLE SOW, THE MAXIMUM LIABILITY OF NETGAIN AND ITS AFFILIATES ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT OR THE APPLICABLE SOW WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, ACCOUNTING DIFFERENCES, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE SHALL BE THE AMOUNT PAID BY CUSTOMER UNDER ALL ACTIVE AGREEMENTS BETWEEN THE PARTIES. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT OR THE APPLICABLE SOW WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS IN THIS SECTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT OR THE APPLICABLE SOW. NOTHING IN THIS AGREEMENT EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
10. Subcontracting
Netgain’s relationship with Customer pursuant to this SOW will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this SOW shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this SOW. Netgain reserves the right to use third parties (who are under a covenant of confidentiality with Netgain), including, but not limited to, offshore subcontractors to assist with the Professional Services, including, without limitation, any data migration, configuration, implementation and custom code development processes. Such right to subcontract is subject to written approval by the Customer in advance.
11. Non-Impediment
Provided that Netgain does not use any Customer Confidential Information except as permitted herein, nothing in this SOW shall be construed as precluding or limiting in any way the right of Netgain to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or competitive with the Professional Services and/or Deliverables hereunder).
12. Use of Logo
Unless otherwise stated in the Estimate, Customer hereby grants to Netgain the express right to use Customer’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as a Netgain customer. Netgain hereby grants to Customer the express right to use Netgain’s logo solely to identify Netgain as a provider of products and/or services to Customer. Other than expressly stated herein, neither party shall use the other party’s logo or similar company information without prior written permission of the other party.
13. Assignment
This SOW shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this SOW without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this SOW relates.
14. Entire Agreement
The parties acknowledge that they have had previous discussions related to the performance by Netgain of Professional Services for Customer and the possible strategies which may be used by Netgain to implement the Service to achieve the requirements identified by Customer. This SOW, together with the attached exhibits that are incorporated by reference constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this SOW and such exhibits. The parties expressly disclaim any reliance on any and all prior agreements, understandings, RFPs, verbal and/or written communications related to the Professional Services to be provided by Netgain. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this SOW be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this SOW, regardless of any failure of Netgain to object to such terms, provisions, or conditions. No other act, document, usage or custom shall be deemed to amend or modify this SOW unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any inconsistency or conflict between the terms of this SOW, and an SOW, the terms of the SOW shall control with regards to the project described therein.
15. General Provisions
If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this SOW shall otherwise remain in full force and effect. A waiver of any breach under this SOW should not constitute a waiver of any other breach or future breach. This SOW and/or applicable Estimate may be executed in counterparts and/or by electronic signature and if so executed shall be equally binding as an original copy of this SOW executed in ink by both parties.
CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS SOW, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING THE APPLICABLE QUOTE/ORDER FORM, AND/OR STATEMENT OF WORK HAS BEEN AUTHORIZED TO DO SO.
#Leasing software typically falls in one of two categories: lease accounting or lease management. Our latest #FAQ post explores the differences between the two. #ASC842 #IFRS16 #GASB87 #leaseaccountinghttps://t.co/GR4e0TzCzm
— Netgain Solutions (@NetgainSol) April 9, 2020
Join us today for an overview of #IFRS16 #leaseaccounting! Register for our 1 pm CT session here: https://t.co/LScOBBxTl8
— Netgain Solutions (@NetgainSol) April 22, 2020
Register for our 10 am Sydney session here: https://t.co/Cezfqy21zL#IASB #AASB16 #AASB #NetSuite #Netgain pic.twitter.com/gPPC3MI30z
At #Netgain we're fortunate to be able to work from anywhere. In fact, the majority of our employees work from home full-time. In our latest blog post we take a break from #leaseaccounting to share #wfhtips from our employees.https://t.co/0NfFhLWl4d
— Netgain Solutions (@NetgainSol) April 3, 2020
