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These terms apply to our Commercial Platform subscription.
By signing up for a Netmaker Commercial Platform License, you and any entity that you represent ("Customer") are unconditionally consenting to be bound by and are becoming a party to these Netmaker Subscription Terms (the "Agreement") as of the date of Customer's first download of the licensed materials (the "Effective Date").
Customer's continued use of the Software or any Licensed Materials (as those terms are defined herein) provided by Netmaker, Inc.("Netmaker") (or one of its affiliates and/or subsidiaries, as specified on an order form or quote), shall also constitute assent to the terms of this Agreement.
If these terms are considered an offer, acceptance is expressly limited to these terms. If you are executing this Agreement on behalf of an organization, you represent that you have authority to do so.
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Definitions:
1.1 Subject to the terms and conditions of this Agreement, Netmaker hereby grants to Customerand its Affiliates (as defined below) a limited, non-exclusive, non-transferable, non-sublicensablelicense during the term of this Agreement to (a) use Netmaker’s software at the tier levelselected by Customer (or set forth on an order form or quote, if applicable with the specificationsgenerally promulgated by Netmaker from time to time (the “Software”), solely as installed on theCustomer’s designated computer system (i) for its internal use, or (ii) if applicable, solely inconnection with the licensed number of Customer units that have the capacity to access anduse the Software resident on Customer’s designated computer systems (“Agents” and togetherto the Software, the “Offerings”); and (b) use the documentation, training materials or othermaterials supplied by Netmaker (the “Other Netmaker Materials”) in conjunction therewith.Notwithstanding anything to the contrary, Customer agrees that Netmaker and/or its licensors(as applicable) retain all right, title and interest in and to all Software incorporated in suchmodifications and/or patches, and all such Software may only be used, copied, modified,displayed, distributed, or otherwise exploited in full compliance with this Agreement, and with avalid Netmaker Commercial Platform subscription for the correct number of networks, nodes,servers, external clients, and users. The Software, Agents and Other Netmaker Materials arecollectively referred to herein as the “Licensed Materials.” All rights not specifically granted toCustomer herein are retained by Netmaker. “Affiliate” means any entity(ies) controlling,controlled by, and/or under common control with a party hereto, where “control” means theownership of more than 50% of the voting securities in such entity. “User” means each individualend-user (person or machine) of Customer and/or its Affiliates (including, without limitation,employees, agents or consultants thereof) with access to the Licensed Materials hereunder.
1.2 Subject to the terms hereof, Netmaker will provide support to Customer for the LicensedMaterials for the support plan selected and paid for by Customer. Notwithstanding anything tothe contrary, in the event that Customer does not reasonably comply with written specificationsor instructions from Netmaker’s service engineers regarding any support issue or request(including without limitation, failure to make backups of Customer’s Licensed Materials) (each, a“Support Issue”), Netmaker may terminate its support obligations to Customer with respect tosuch Support Issue upon fifteen (15) days’ written notice if Customer does not cure suchnoncompliance within the notice period.
1.2.1 The number of support questions is not limited.
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2.1 Except as expressly authorized in Section 1.1, Customer will not, and will not permit anythird party to: use the Licensed Materials for any purpose other than as specifically authorized inSection 1, or in such a manner that would enable any unlicensed person to access the LicensedMaterials; use the Licensed Materials or any other Netmaker software for any purpose otherthan its and its Affiliates’ own internal use (including without limitation, sublicensing, distributing,selling, reselling any of the foregoing); except as expressly permitted herein; use the Offeringson a computer system other than Customer’s designated computer system; decompile,disassemble, reverse engineer or decode the Offerings, except as expressly permitted byapplicable law; create any derivative work based on the Offerings, the structure, sequence,organization or user interface thereof, or the documentation; use the Licensed Materials otherthan in accordance with this Agreement and in compliance with all applicable laws andregulations (including but not limited to any privacy laws, and laws and regulations concerningintellectual property, consumer and child protection, obscenity or defamation); or use theLicensed Materials in any manner that (1) is harmful, fraudulent, deceptive, threatening,abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including withoutlimitation, accessing any computer, computer system, network, software, or data withoutauthorization, breaching the security of another user or system, and/or attempting to circumventany User authentication or security process), (2) impersonates any person or entity, includingwithout limitation any employee or representative of Netmaker, or (3) contains a virus, trojanhorse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmfulcomputer code, file, or program (including without limitation, password guessing programs,decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/orencryption circumvention programs).
2.2 Customer will cooperate with Netmaker in connection with the performance of thisAgreement by making available such personnel and information as may be reasonably required,and taking such other actions as Netmaker may reasonably request. Customer will alsocooperate with Netmaker in establishing a password or other procedures for verifying that onlydesignated employees of Customer have access to any administrative functions of theOfferings.
2.3 Customer will be responsible for maintaining the security of Customer’s account, passwords(including but not limited to administrative and User passwords) and files, and for all uses ofCustomer account with or without Customer’s knowledge or consent.
2.4 Customer will not air gap their Netmaker Commercial Platform instance without priorpermission from Netmaker, as this prevents us from being able to bill you correctly based onusage.
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3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”)has disclosed or may disclose information relating to the Disclosing Party’s technology orbusiness (hereinafter referred to as “Proprietary Information” of the Disclosing Party).“Proprietary Information” as used herein means includes nonpublic information of the DisclosingParty, whether disclosed orally or in written or digital media, that is identified as “confidential” orwith a similar legend at the time of such disclosure or that Receiving Party knows or shouldhave known is the confidential or proprietary information of the Disclosing Party. Without limitingthe foregoing, the Licensed Materials are Netmaker Proprietary Information.
3.2 The Receiving Party agrees: (i) not use or to divulge to any third person any suchProprietary Information, (ii) to give access to such Proprietary Information solely to thoseemployees with a need to have access thereto for purposes of this Agreement and who arebound by confidentiality obligations no less restrictive than those set forth herein, and who havebeen informed of the confidential nature of such information, and (iii) to take the same securityprecautions to protect against use, disclosure or unauthorized use of such ProprietaryInformation that the party takes with its own proprietary information, but in no event will a partyapply less than reasonable precautions to protect such Proprietary Information. The DisclosingParty agrees that the foregoing will not apply with respect to any information that the ReceivingParty can document (a) is or becomes generally available to the public without any action by, orinvolvement of, the Receiving Party, or (b) was in its possession or known by it at the time ofdisclosure from the Disclosing Party free of any confidentiality duties or obligations, or (c) waslawfully disclosed to it without restriction by a third party free of any confidentiality duties orobligations, or (d) was independently developed without use of or reference to any ProprietaryInformation of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Partyfrom disclosing Proprietary Information pursuant to any judicial or governmental order, providedthat (to the extent legally permissible) the Receiving Party gives the Disclosing Party reasonableprior notice of such disclosure to contest such order and cooperates with the Disclosing Party ifthe Disclosing Party seeks an appropriate protective order. In any event, Netmaker may collectdata with respect to and report on the aggregate response rate and other aggregate measuresof the Licensed Materials’ performance and Customer’s usage of the Licensed Materials;provided that Netmaker will not identify Customer as the source of any such data withoutCustomer’s prior written consent. For the avoidance of doubt, use of a third party to host thedata collected shall not be deemed a disclosure.
3.3 Each party acknowledges and agrees that the other may suffer irreparable damage in theevent of a breach of the terms of Sections 1.1, 2.1 or 3.2 of this Agreement and that such partywill be entitled to seek injunctive relief (without the necessity of posting a bond) in the event ofany such breach.
3.4 Both parties will have the right to disclose the existence of the relationship between theparties, but not the commercial terms of this Agreement, unless such disclosure of theAgreement terms is approved in writing by both Parties prior to such disclosure, or is included ina filing required to be made by a party with a governmental authority (provided such party willuse reasonable efforts to obtain confidential treatment or a protective order) or is made on aconfidential basis as reasonably necessary to potential investors or acquirers.
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4.1 Except as expressly set forth herein, Netmaker alone (and its licensors, where applicable)will retain all intellectual property rights relating to the Licensed Materials and any suggestions,ideas, enhancement requests, feedback, code, or other recommendations provided byCustomer, its Affiliates or any third party relating to the Licensed Materials, which are herebyassigned to Netmaker. This Agreement is not a sale and does not convey to Customer anyrights of ownership in or related to the Licensed Materials, or any intellectual property rights.
4.2 Customer shall not remove, alter or obscure any of Netmaker’s (or its licensors’) copyrightnotices, proprietary legends, trademark or service mark attributions, patent markings or otherindicia of Netmaker’s (or its licensors’) ownership or contribution from the Licensed Materials.Additionally, Customer agrees to reproduce and include Netmaker’s (and its licensors’)proprietary and copyright notices on any copies of the Licensed Materials, or on any portionthereof, including reproduction of the copyright notice. Notwithstanding anything to the contraryherein, certain components of the Licensed Materials, including without limitation, anycomponent of the Licensed Materials distributed by Netmaker as part of the NetmakerCommunity Edition, are licensed by third parties pursuant to the terms of certain third partylicenses described in such source code annotations.
4.3 Customer and its licensors shall (and Customer hereby represents and warrants that theydo) have and retain all right, title and interest (including, without limitation, sole ownership of) allsoftware, information, content and data provided by or on behalf of Customer or made availableor otherwise distributed through use of the Licensed Materials (“Content”) and the intellectualproperty rights with respect to that Content. Customer will defend at its expense any third partyclaim, action or suit (each a “Claim”) brought against Netmaker (including reimbursement ofNetmaker’s reasonable legal or expert fees or related litigation costs), and will pay anysettlement Netmakers makes or approves, or any damages finally awarded in such suit, insofaras such suit is based on a Claim arising out of or relating to Customer’s breach of its warrantieshereunder. The immediately foregoing indemnity obligations are expressly conditioned on Netmaker providing Customer with prompt notice of, and reasonable cooperation and solecontrol over the defense and/or settlement of the applicable Claim. Subject to the foregoing,Netmaker may participate in the defense and/or settlement of any applicable Claim with counselof its choosing at its own expense.
4.4 Netmaker will defend at its expense any Claim brought against Customer (includingreimbursement of Netmaker’s reasonable legal or expert fees or related litigation costs), and willpay any settlement Customer makes or approves, or any damages finally awarded in such suit,insofar as such suit is based on a Claim alleging that the Licensed Materials infringe such thirdparty’s patents, copyrights or trade secret rights under applicable laws within the United Statesof America,, provided Netmaker is promptly notified of any and all threats, claims andproceedings related thereto and given reasonable assistance and the opportunity to assumesole control over defense and settlement thereof. Subject to the foregoing, Customer mayparticipate in the defense and/or settlement of any claim that is indemnifiable by Netmaker withcounsel of its choosing at its own expense. The foregoing obligations do not apply with respectto portions or components of the Licensed Materials (i) not created by Netmaker, (ii) that aremodified after delivery by Netmaker, (iii) combined with other products, processes or materialswhere the alleged infringement relates to such combination, (iv) where Customer continuesallegedly infringing activity after being notified thereof or after being informed of modificationsthat would have avoided the alleged infringement, or (v) where Customer’s use of the LicensedMaterials is not strictly in accordance with this Agreement and all related documentation.
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5.1 Customer will pay Netmaker the then applicable fees described on Netmaker’s pricingwebpage located here [https://dashboard.license.netmaker.io/purchase] or in the order form orquote for the Licensed Materials in accordance with the terms therein (the “Fees”). If Customer’suse of the Licensed Materials exceeds the Service Capacity set forth on the order form or quoteor otherwise requires the payment of additional fees (per the terms of this Agreement),Customer shall be billed for such usage and Customer agrees to pay the additional fees in themanner provided herein. Netmaker reserves the right to change the Fees or applicable chargesand to institute new charges and Fees at the end of the Initial Service Term (defined below) (asspecified on an order form or quote) or then current renewal term, upon thirty (30) days priornotice to Customer (which may be sent by email). If Customer believes that Netmaker has billedCustomer incorrectly, Customer must contact Netmaker no later than 60 days after the closingdate on the first billing statement in which the error or problem appeared, in order to receive anadjustment or credit. Inquiries should be directed to Company’s customer support department(support@netmaker.io).
5.2 Netmaker may choose to bill through an invoice, in which case, full payment for invoicesissued in any given month must be received by Netmaker according to the payment termsspecified in the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month onany outstanding balance, or the maximum permitted by law, whichever is lower, plus allexpenses of collection and may result in immediate termination of Service. Customer shall beresponsible for all taxes associated with the Licenses Materials other than U.S. taxes based onNetmaker’s net income.
5.3 Our fees do not include any taxes, levies, duties or similar governmental assessments ofany nature, including, for example, value-added, sales, GST, use or withholding taxes,assessable by any jurisdiction whatsoever in relation to your purchases under this Agreement(collectively, the “Taxes”). You are solely responsible for paying all Taxes associated with yourpurchases hereunder. If we have a legal obligation to pay or collect Taxes for which you areresponsible for under this Clause 4.3, we shall invoice you and you shall pay that amount to usunless you provide us with a valid tax exemption certificate authorized by the appropriate taxingauthority. We shall calculate applicable Taxes based on your billing address as detailed on therelevant order form or quote (it is your duty to inform us if Taxes should be assessed on adifferent address). You shall promptly notify us of any changes to any of your addressesspecified in an order form or quote. Taxes shall not be deducted from or set-off against the feesin the applicable order form or quote.
5.4 Subject to the termination provisions as provided below, this Agreement is for the initialsubscription period (“Initial Service Term”) that Customer has purchased, and shall beautomatically renewed for additional terms of the same duration as the Initial Service Term(collectively, the “Term”), unless either party gives notice of non-renewal to the other party atleast thirty (30) days prior to the expiration of the then-current term.
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6.1 This Agreement shall continue until terminated in accordance with this Section 6. Eitherparty may terminate this Agreement upon 30 days’ written notice to the other party hereto in theevent that Customer has no then-current subscription with respect to the Licensed Materials.
6.2 Either party may terminate this Agreement immediately upon 30 days’ written notice to theother party in the event of any material breach of this Agreement (including without limitation,any breach of Section 2.2 and/or failure to pay any amounts when due hereunder) by such partywhere such material breach is not cured during such notice period.
6.3 Either party may terminate this Agreement, upon written notice, (i) upon the institution by oragainst the other party of insolvency, receivership or bankruptcy proceedings (provided suchproceedings are not dismissed within one hundred twenty (120) days of such institution), (ii)upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the otherparty’s dissolution or ceasing to do business without a successor.
6.4 Customer’s rights to the Licensed Materials, and any licenses granted hereunder, shallterminate upon any termination of this Agreement. In the event that Customer terminates thisAgreement pursuant to Section 6.2 above, Netmaker will refund to Customer a pro-rated portionof pre-paid Fees for Services not actually received by Customer as of the date of suchtermination. The following Sections will survive any termination of this Agreement: 2 through 6(except for Section 4.3), and 8 through 11.
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Netmaker represents and warrants that (i) it has all rights and licenses necessary for it toperform its obligations hereunder, and (ii) it will not knowingly include, in any Netmaker softwarereleased to the public and provided to Customer hereunder, any computer code or othercomputer instructions, devices or techniques, including without limitation those known asdisabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable,harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network,computer program or computer system or any component thereof, including its security or userdata. If, at any time, Netmaker fails to comply with the warranty in this Section, Customer maypromptly notify Netmaker in writing of any such noncompliance. Netmaker will, within thirty (30)days of receipt of such written notification, either correct the noncompliance or provideCustomer with a plan for correcting the noncompliance. If the noncompliance is not corrected orif a reasonably acceptable plan for correcting them is not established during such period,Customer may terminate this Agreement as its sole and exclusive remedy for suchnoncompliance.
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EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS AND NETMAKERPROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THISAGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.NETMAKER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
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EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 3 AND A PARTY’SINDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY OR THEIRLICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, ORCONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THEUSE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITHTHIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS ORANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISEARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OFREVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHERBASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OROTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OFDAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) OF SECTION 3 AND A PARTY’SINDEMNIFICATION OBLIGATIONS, THE TOTAL LIABILITY OF EACH PARTY, WHETHERBASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OROTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONETHOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID BY CUSTOMER TO NETMAKERHEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMANDIS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDINGANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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Notwithstanding anything else, Customer may not provide to any person or export or re-exportor allow the export or re-export of the Licensed Materials or any software or anything relatedthereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of anyrestrictions, laws or regulations of the United States Department of Commerce, the UnitedStates Department of Treasury Office of Foreign Assets Control, or any other United States orforeign agency or authority. Without limiting the foregoing Customer acknowledges and agreesthat the Controlled Subject Matter will not be used or transferred or otherwise exported orre-exported to countries as to which the United States maintains an embargo (collectively,“Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on theU.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department ofCommerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists ofEmbargoed Countries and Designated Nationals are subject to change without notice. Use ofthe Licensed Materials is representation and warranty that the User is not located in, under thecontrol of, or a national or resident of an Embargoed Country or Designated National. TheControlled Subject Matter may use or include encryption technology that is subject to licensingrequirements under the U.S. Export Administration Regulations. As defined in FAR section2.101, any software and documentation provided by Netmaker are “commercial items” andaccording to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computersoftware” and “commercial computer software documentation.” Consistent with DFAR section227.7202 and FAR section 12.212, any use modification, reproduction, release, performance,display, or disclosure of such commercial software or commercial software documentation bythe U.S. Government will be governed solely by the terms of this Agreement and will beprohibited except to the extent expressly permitted by the terms of this Agreement.
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If any provision of this Agreement is found to be unenforceable or invalid, that provision will belimited or eliminated to the minimum extent necessary so that this Agreement will otherwiseremain in full force and effect and enforceable. This Agreement is not assignable, transferableor sublicensable by either party without the other party’s prior written consent, not to beunreasonably withheld or delayed; provided that either party may transfer and/or assign thisAgreement to a successor in the event of a sale of all or substantially all of its business orassets to which this Agreement relates. Both parties agree that this Agreement is the completeand exclusive statement of the mutual understanding of the parties and supersedes and cancelsall previous written and oral agreements, communications and other understandings relating tothe subject matter of this Agreement, and that all waivers and modifications must be in a writingsigned or otherwise agreed to by each party, except as otherwise provided herein. No agency,partnership, joint venture, or employment is created as a result of this Agreement and neitherparty has any authority of any kind to bind the other in any respect whatsoever. In any action orproceeding to enforce rights under this Agreement, the prevailing party will be entitled to recovercosts and attorneys’ fees. All notices under this Agreement will be in writing and will be deemedto have been duly given when received, if personally delivered; when receipt is electronicallyconfirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registeredmail (return receipt requested), postage prepaid. Netmaker will not be liable for any lossresulting from a cause over which it does not have direct control. This Agreement will begoverned by the laws of the State of New York, U.S.A. without regard to its conflict of lawsprovisions. The federal and state courts sitting in New York County, New York, U.S.A. will haveproper and exclusive jurisdiction and venue with respect to any disputes arising from or relatedto the subject matter of this Agreement.
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