1. OVERVIEW & CUSTOMER
This Subscription & Services Agreement (“Agreement”) is between Netgain Solutions, Inc. (“Netgain”) and the “Customer” that accepted this Agreement through an executed Quote Form that references this agreement. Capitalized terms not defined elsewhere in this Agreement have the meaning given to them in the Definitions section below. This Agreement sets forth the terms and conditions that govern orders placed under this Agreement.
“Cloud Products” means, collectively, Netgain’s online business application suite and procured modules as described in the applicable Help Documentation that is procured by Customer from Netgain in the Quote Form and any subsequent Quote Form from time to time.
“Customer Data” means all electronic data or information submitted to and stored in the Cloud Products by Users.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Cloud Products.
“Quote” or “Quote Form” means a Netgain estimate, renewal notification or order form in the name of and executed by Customer and accepted by Netgain which specifies the Cloud Products, and any Support Services and/or Professional Services to be provided by Netgain subject to the terms of this Agreement.
“Help Documentation” mean the online English language user guides for the Cloud Products, accessible via login at http://support.netgain.tech, as updated from time to time.
“Professional Services” means the general consulting, implementation and/or training services to be provided to Customer pursuant to the terms hereof, the additional terms of the applicable version of the Professional Services Addendum available at https://www.netgain.tech/psa or such other URL as specified by Netgain (the “Professional Services Addendum”), and a Quote Form or Statement of Work, as applicable.
“Professional Services Addendum” or “PSA” or “Statement of Work” or “SOW” means a separate document or Quote between Netgain and Customer that details the Professional Services to be delivered by Netgain.
“Support Services” means the supplemental, technical support services to be provided to Customer for the Cloud Products pursuant to the terms hereof or additionally specified on Customer Quote. Support Services may be subject to additional fees.
“Term” means the period between the initial license start date and license end dates as set forth in the accompanied Quote, as well as for successive additional renewal periods thereafter, typically set for a minimum of 12 months.
“Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Netgain.
“Users” means individuals who are authorized by Customer to use the Cloud Products pursuant to this Agreement or as otherwise defined, restricted or limited in a Quote/Quote Form or amendment to this Agreement. Users may include but are not limited to Customer’s and Customer’s affiliates’ employees, consultants, contractors and agents.
Subject to the terms and conditions of this Agreement and associated signed Customer Quote(s) referencing this Agreement, Netgain grants to Customer the non-exclusive, non-transferable, worldwide, limited right to use the Cloud Products, Support Services, and Professional Services (collectively, the “Services”) ordered by Customer during the applicable Term of this Agreement (the “License”). The License is limited to the right to access and use Products for Customer’s own internal business purposes, and those of its affiliates, as expressly authorized under this Agreement. No right to sub-license is granted under this Agreement.
4. QUOTE FORMS
The Services shall be ordered by Customer pursuant to Quote Forms. Each Quote Form shall include at a minimum a listing of the Cloud Products and any Support Services and/or Professional Services being ordered and the associated fees. Except as otherwise provided on the Quote Form, PSA, or this Agreement, once placed, each Quote Form and Statement of Work is non-cancellable, and all sums paid are non-refundable. If Customer exceeds the quantity of Services ordered, Customer promptly must purchase and pay fees for the excess quantity.
5.1. Customer may not, and may not cause or permit others to: (a) use the Services to cause damage or injury to any person or property; violate privacy rights; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the Services; or (c) perform or disclose any performance or vulnerability testing of the Services, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services.
5.2. Customer may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to Netgain; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement or Customer Quote Form.
6. TERM, FEE, PAYMENT, VOLUME ADJUSTMENTS, & TAXES
This Agreement is valid for the Quote Forms (including PSAs) which this Agreement accompanies (the “Term”). The initial subscription term of the Cloud Products and/or Support Services procured by Customer shall continue for the term applicable to such Services specified in the applicable Quote Form. Renewal terms will be set for a minimum of 12 months, unless either party provides notice of non-renewal prior to the completion of the current initial or renewal term.
6.2. Fees and Payment
All fees payable are due within 30 days from the invoice date unless otherwise specified in the applicable Quote Form. All fees are non-refundable, except as otherwise explicitly stated in the applicable Estimate/Order Form or this Agreement. Any payments by Customer that are not paid on or before 30 days after the invoice due date under this Agreement shall bear interest, to the extent permitted by law, at 1.5% monthly from the date payment is due. Each party shall have the right to terminate this Agreement in accordance with Section 9 below.
6.3. Volume Usage and Increases
Volume usage limits and pricing are set forth on the Customer Quote associated with each purchase. Netgain will not prevent Customer from increasing product volume usage beyond the licensed usage volume. Such increases shall trigger an adjustment to the contract terms and result in a supplemental billing for the increased usage at the rates set forth on the Customer Quote, or at prevailing and customary rates if not otherwise indicated. Adjustments will be applied to the remainder of the contracted term. In the event Customer objects to the volume increases, the parties will work together in good faith to reduce the volume below the original Customer Quote volume limits or separately adjust contract terms.
Netgain fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on Netgain’s net 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.
7. PROPRIETARY RIGHTS
7.1. Ownership of Customer Data
As between Netgain and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Netgain may store and maintain Customer Data for a period of time consistent with Netgain’s standard business processes for the Services. Following expiration or termination of the Agreement or a Customer account, if applicable, Netgain may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Netgain the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with this Agreement and the applicable Quote Form or PSA. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related to Customer Data required by Netgain to perform the Services.
7.2. Netgain Intellectual Property Rights
All rights, title, and interest in and to the Services (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts, or other derivative works of the Services provided or developed by Netgain) and anything developed or delivered by or on behalf of Netgain under this Agreement are owned exclusively by Netgain. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. Customer grants Netgain a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services. Any rights in the Services or Netgain’s intellectual property not expressly granted herein by Netgain are reserved by Netgain.
8. TERMS OF SERVICE
8.1. Users: Passwords, Access, and Notification
Customer shall authorize access to and assign unique passwords and user names to its Users. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Products or under Customer’s account. Netgain will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Products and shall promptly notify Netgain of any unauthorized access or use of the Cloud Products and any loss or theft or unauthorized use of any User’s password or name and/or Cloud Products account numbers.
8.2. Support Services
As part of the Cloud Products, Netgain will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Cloud Products. All paying Netgain customers receive “Base Support” as noted below. Netgain also offers optional “for fee” Support Services and Professional Services, which must be separately identified and accompanied within a Quote. Standard Support Services terms are as follows:
8.3. Consulting Services
Customer may request and Netgain may provide consulting services for a separate fee, which shall be outlined in a Quote Form or SOW. Unless otherwise agreed upon and noted on the executed Quote Form or SOW, such services are subject to the supplemental terms as set forth in the Standard Professional Services Addendum at https://www.Netgain.tech/psa.
8.3. No Rendering of Accounting Advice
NETGAIN NEITHER ACCEPTS REQUESTS FOR ACCOUNTING ADVICE OR SERVICES NOR OFFERS ACCOUNTING ADVICE OR SERVICES, WHETHER WITH THE CLOUD PRODUCTS, SUPPORT SERVICES, OR PROFESSIONAL SERVICES. ANY ACCOUNTING, TAX, OR FINANCIAL INFORMATION PROVIDED DURING THE TERM OF ANY NETGAIN AGREEMENT 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.
During the term of this Agreement, Netgain will maintain, correct and modify, and may upgrade and update the Cloud Products and Help Documentation (collectively, “System Updates”); provided, however, that the nature, substance, content, timing, manner and release of System Updates, if any, shall be in the sole and absolute discretion of Netgain. System Updates will not materially reduce the level of performance, functionality, security, or availability of the Services during the term of Customer’s Quote Form or PSA. To the extent possible, System Updates will be released on weekends or after hours.
8.5. Service Monitoring and Analyses
Netgain monitors the Cloud Products to facilitate Netgain’s operation of the Services; to help resolve Customer service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services. Netgain does not monitor, and does not address issues with, non-Netgain software provided by Customer or any of Customer’s Users that is stored in, or run on or through, the Services.
9.1. Termination by Either Party
Either party may terminate this Agreement (a) by providing notice of non-renewal to the other party within 30 days of expiration of the Term or (b) by providing notice of non-renewal to the other party within 30 days of receipt of renewal invoice or (c) if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of a failure to pay, which shall be cured within 14 days of notice of such failure. Either party may terminate this Agreement immediately and without notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors.
9.2. Effect of Termination
Upon termination, cancellation, or expiration of this Agreement for any reason whatsoever: (a) the License shall automatically, and without further notice, be revoked; (b) Customer shall immediately cease all access to and use of Products and all Confidential Information and shall return the same to Netgain; and (c) Netgain shall have the right to terminate and deny Customer access to Products immediately and without further notice.
10.1 By virtue of this Agreement, the parties may disclose to each other information that is confidential (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under this Agreement and Customer’s Quote Forms, Customer Data residing in the Cloud Products, and all information clearly identified as confidential at the time of disclosure.
10.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
10.3 Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, Netgain will protect the confidentiality of Customer Data residing in the Cloud Products for as long as such information resides in the Cloud Products. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. Netgain will protect the confidentiality of Customer Data residing in the Services as described in this Agreement or such Estimate/Order Form.
11. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES.
11.1. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. Netgain warrants that during the Term, Netgain will perform (i) the Cloud Products using commercially reasonable care and skill in all material respects, and (ii) any Professional Services and Support Services in a professional manner consistent with industry standards (the warranties described by the foregoing clauses (i) and (ii), collectively, the “Services Warranty”). If the Services provided to Customer were not performed as warranted, Customer must promptly provide Netgain with a written notice that describes the deficiency in the Services. For Professional Services, Customer must notify Netgain of any warranty deficiencies within 60 days from performance of the deficient Professional Services.
11.2. NETGAIN DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT NETGAIN WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. NETGAIN IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD-PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
11.3. FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND NETGAIN’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF NETGAIN CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND NETGAIN WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO NETGAIN FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
11.4. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATIONS OF LIABILITY
12.1. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL, OR REPUTATION.
12.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NETGAIN AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S QUOTE FORM OR PSA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER CUSTOMER’S ESTIMATE/ORDER FORM OR PSA FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
13.1. If a third party makes a claim against either Customer or Netgain (“Recipient” which may refer to Customer or Netgain depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either Customer or Netgain (“Provider” which may refer to Customer or Netgain depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
13.2. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Netgain’s ability to meet obligations under the relevant order, then Netgain may, upon 30 days prior written notice, terminate the order. If such Material is third party technology and the terms of the third party license do not allow us to terminate the license, then Netgain may, upon 30 days prior written notice, end the Services associated with such Material and refund any unused, prepaid fees for such Services.
13.3 The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or the Help Documentation, or (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any Material not furnished by the Provider. Netgain will not indemnify Customer to the extent that an infringement claim is based on a Third Party Application or any Material from a third party portal or other external source that is accessible or made available to Customer within or by the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, marketing data from third party data providers, etc.).
13.4 This Section provides the parties’ exclusive remedy for any infringement claims or damages.
14. GOVERNING LAW, ARBITRATION, AND ATTORNEYS’ FEES
This Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Delaware. In the event of a dispute or alleged breach of this Agreement, the parties will work together in good faith first, for a period of no fewer than 30 days, to resolve the matter by escalating it to higher levels of management and, then if unable to resolve the matter giving rise to the dispute, will follow the arbitration provisions set forth in this section. Thereafter, any dispute, controversy or claim arising out of or relating to the Cloud Products, any Support Services, or Consulting Services, or this Agreement, or its negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The arbitration and all proceedings shall take place in State of Delaware. There shall be a single arbitrator selected by the parties in accordance with the Commercial Rules of the American Arbitration Association; however, the arbitrator shall be a member of the State of Delaware bar and shall have no less than 10 years’ experience in computer law and commercial matters. The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. In any dispute arising out of or relating to this Agreement, the prevailing party shall receive an award of its reasonable attorneys’ fees and costs in any proceeding, including on appeal and enforcement.
15. GENERAL PROVISIONS
15.1. Entire Agreement
This Agreement embodies the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. The parties expressly declare and understand that no promises, inducements, consideration, or agreements not herein expressed have been made to them. This Agreement may not be modified or amended except by a written instrument executed by both parties. Except to the extent expressly specified otherwise, if there is any conflict between this Agreement and any of the other Agreement documents, then the following order of precedence applies: (i) any amendment to this Agreement between the Parties, (ii) the Quote Form, (iii) this Agreement, and (iv) the Standard License Agreement & Professional Services Addendum.
15.2. Other General Provisions
15.2.1. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except that Netgain may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement.
15.2.2. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
15.2.3 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 Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach.
15.3. Force Majeure
Neither party shall be liable for loss, delay, nonperformance (including failure to meet the service level commitment but excluding payment obligations) to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Netgain employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.
15.4. Interpretation, Survival, & Execution
The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment, and others which by their nature are intended to survive. The Quote Form and this associated Agreement 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 this Agreement executed in ink by both parties.