Agreements and Terms
REVISED Jan 26, 2019
This Agreement, together with the applicable NetsSync Order Form (“ Order ”), applicable Statement of Work (“ SOW ”), and the documents that we incorporate by making reference to them here (collectively, this “ Agreement “), whether by “clicking to accept” or signing applicable documents, is a legal and binding agreement. For the avoidance of doubt, this Agreement shall serve as the master agreement and governing document with respect to each Order and SOW. In the event of a conflict between this Agreement and an Order and/or SOW, this Agreement controls.
NetsSync provides a set of managed services, which may include certain data integrations and customer experience tools via software products that are deployed on Customer’s premise (“ Software ”), or via NetsSync’s software-as-a-service (SaaS) product (“ SaaS Offering ”), and certain related services collectively the “ NetsSync Subscription Services ”.
Software License . If the Order provides for the provision of Software, subject to the terms and conditions of this Agreement, during the subscription term specified on the Order, NetsSync hereby grants to Customer a personal, non-sublicensable, non-exclusive, non-transferable license to: (i) install, or have installed, the Software on Customer’s system, and (ii) use the Software in object code format, in accordance with the Documentation, for Customer’s internal business purposes only in accordance with the Software’s normal and intended use and subject to applicable user license limits set forth on the Order.
SaaS Terms . If the Order provides for the provision of the SaaS Offering, subject to the terms and conditions of this Agreement, during the subscription term specified on the Order, NetsSync will provide Customer with access to the SaaS Offering on a non-exclusive and subscription basis.
Restrictions . Except as expressly permitted herein, Customer may not: (i) rent, lease, lend, sell, redistribute, or sublicense the NetsSync Subscription Services; (ii) modify, disassemble, de-compile, reverse engineer, or otherwise attempt to derive the source code of the NetsSync Subscription Services or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the NetsSync Subscription Services), (iii) use the NetsSync Subscription Services in any manner to provide service bureau, time-sharing or other computer services to third parties, (iv) use the NetsSync Subscription Services, or allow the transfer, transmission, export, or re-export of the NetsSync Subscription Services or portion thereof in violation of any export control laws or regulations administered by any government agency, (v) resell, distribute or otherwise transfer the NetsSync Subscription Services, and code comprising the same, or any NetsSync trademark, logo or likeness, or (vi) use the NetsSync Subscription Services to develop competing products or services. Any attempt to do so is a violation of the rights of NetsSync and its licensors. Customer may not use the NetsSync Subscription Services for any use other than its intended use.
Customer’s Authorized Users . During the Term, Customer may allow End Users (defined below) that are Customer’s employees, agents and other personnel (“ Authorized Users ”) to use the NetsSync Subscription Services on behalf of Customer. As a condition to such use, Authorized Users shall abide by the terms set forth herein. Customer shall immediately notify NetsSync in the event that it becomes aware of any violation of the terms of this Agreement by any Authorized User. Customer shall be liable for any breach of the Agreement by any Authorized User.
Third-Party Systems . Customer and its Authorized Users must have valid and verifiable accounts for certain third party systems or components provided by entities other than NetsSync, such as a CRM (e.g. Salesforce) or a phone system (e.g. Avaya) (“ Third-Party System(s) ”) in order for such Third-Party Systems to inter operate with the NetsSync Subscription Services. Customer agrees to abide by any terms that govern the use of such Third-Party Systems (“ Third-Party Terms ”). In addition, Customer may need to license, modify, and/or install the Third-Party Systems and is solely responsible for such activities. Customer represents and warrants that Customer’s and its Authorized Users’ Third-Party System accounts are in good standing and that Customer’s and its Authorized Users’ use of the NetsSync Subscription Services, including without limitation any integration of NetsSync Subscription Services, will not be in violation of any applicable Third-Party Terms. Customer acknowledges and agrees that NetsSync has no control over the provision of Third-Party Systems or provision of access to the Third-Party Systems by Customer’s provider(s). NetsSync will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in Customer’s inability to use the NetsSync Subscription Services to access Customer’s accounts, obtain data, or otherwise use or access the Third-Party Systems. Further, information Customer makes available via Third-Party Systems is subject to the privacy policies of such third parties. Customer agrees that NetsSync will use the Third-Party Systems at Customer’s sole risk.
Fees . Applicable fees and pricing for the NetsSync Subscription Services (“ Price / Qty. ”) and fees for the implementation of the NetsSync Subscription Services (“ Professional Services ”) and any support offerings are located on the Order. Unless otherwise set forth in an Order, all fees are due and payable annually in advance in U.S. dollars and are non-refundable . All fees payable to NetsSync are due within thirty (30) days of the invoice date (the “ Due Date ”) unless otherwise stated in the Order. Unless otherwise stated in the applicable Order, for an Order that has an Initial Order Term of longer than twelve (12) months Customer shall be invoiced on the yearly anniversary date of the Order Effective Date for each subsequent NetsSync Subscription Services year. In addition, If NetsSync does not receive payment by the corresponding Due Date for any reason, Customer hereby authorizes NetsSync to charge the credit card (or other electronic payment method) on file with Customer’s account for all Fees. All fees are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to us, as required by applicable law. If payment is not made on the respective Due Date, NetsSync may, at its discretion and in addition to other remedies it may have, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and/or (ii) suspend Customer’s and its Authorized Users’ use of and access to the NetsSync Subscription Services [Saas – will be charged monthly for all fees; services – can pay by check / invoice and if they stop paying, can charge their card] until payment is made. NetsSync may increase fees for the renewals of an Order, but not by more than five percent (5%) of the prior terms’ fees.
Statement of Work (“SOW”) . In addition, the Parties may subsequently enter into one or more Statements of Work (“ SOW ”) pursuant to the applicable Order for the implementation of the NetsSync Subscription Services. Each SOW will describe the implementation of the NetsSync Subscription Services, and any applicable milestones, dependencies and other technical specifications or related information. The SOW may also specify any training or other services. If the Parties do not execute a separate SOW, the NetsSync Subscription Services shall be provided as stated on the Order.
Ownership . Except expressly agreed to by NetsSync pursuant to a separate written agreement mutually executed by the parties, NetsSync shall own and retain ownership of all right, title, and interest in and to: (i) the NetsSync Subscription Services; (ii) any deliverables and other work product created as a result of the NetsSync Subscription Services, (iii) any ideas, suggestions, or feedback relating to the NetsSync Subscription Services (“ Feedback ”); (iv) all and all modifications or derivative works to any of the foregoing; and (v) and all intellectual property rights embodied within any of the foregoing. Customer hereby irrevocably assigns and agrees to assign all of Customer’s right, title, and interest in and to any Feedback to NetsSync.
Customer Content. Customer and its Authorized Users may input or upload text, images, photos, videos, sounds, links, works of authorship, or other materials to the NetsSync Subscription Services (collectively, “ Customer Content “). NetsSync does not claim ownership of your Customer Content. By posting or sharing the Customer Content, Customer grants to NetsSync only the limited rights that are reasonably necessary for NetsSync to provide the NetsSync Subscription Services to Customer and its Authorized Users. Customer represents and warrants that: (i) Customer owns the Customer Content or otherwise has the right to grant the license set forth in this section, and (ii) transmitting Customer Content on or through the NetsSync Subscription Services does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. Customer shall only collect, process, use, store, disclose and transfer Customer Content and End User Data (defined below) in compliance with any applicable Third-Party Terms, privacy policies or other terms between Customer and its Authorized Users or other End Users. Customer acknowledges that NetsSync does not have any control over the Customer Content, including End User Data that passes through NetsSync’s systems and networks through the NetsSync Subscription Services. NetsSync is not responsible for monitoring Customer Content and collects such Customer Content automatically under Customer’s direction when providing the NetsSync Subscription Services to Customer and Customer Authorized Users. NetsSync may, but do not have any obligation to, remove any of the Customer Content from the NetsSync Subscription Services in our sole discretion, including if NetsSync determines that it may violate another person’s intellectual property rights, this Agreement, any applicable Third-Party Terms, or applicable law. Customer acknowledges that NetsSync will have access to the Customer Content as it is being transmitted via the NetsSync Subscription Services to the applicable Third-Party System and may need to translate, reformat, re-tag or otherwise modify technical elements of the Customer Content to make it more appropriately visualized in the applicable Third-Party System or otherwise conform to the specifications of a Third-Party System. It is Customer’s sole responsibility to back-up its Customer Content. Customer acknowledges and agrees that after termination of this Agreement, Customer may not have access to the Customer Content via the NetsSync Subscription Services.
Data Ownership . As between Customer and NetsSync, Customer owns all End User Data. NetsSync may collect usage data, meta data, performance data, traffic patterns, usage statistics and other data related to how Customer and its Authorized Users use and interact with the NetsSync Subscription Services, including information verifying whether Customer Content was successfully transmitted via the NetsSync Subscription Services to the intended Third-Party System, provided that such data will be aggregated, anonymized and will not identify Customer or any End Users as the source of such data. Customer acknowledges and agrees that NetsSync may (i) collect, process, use and aggregate any data used with, stored in or related to the NetsSync Subscription Services and create aggregate data records (“ Aggregate Data ”) by removing any personally identifiable information from the underlying data, (ii) use such Aggregate Data to improve the NetsSync Subscription Services, develop new services, understand industry trends, create white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to NetsSync’s business, (iii) share Aggregate Data with third parties or publish any reports, white papers or other summaries incorporating Aggregate Data, (iv) use Aggregate Data to investigate and help address and/or prevent actual or potential unlawful activity, and (v) disclose Aggregate Data upon the request of a government agency, law enforcement agency, court or as otherwise required by law.
Data Privacy Laws . Customer acknowledges and agrees that the NetsSync Subscription Services stores data (including End User Data) on servers in the U.S. or any other country in which NetsSync or its affiliates, subsidiaries, agents or contractors maintain facilities. Customer agrees, without NetsSync’s prior written consent, not to provide NetsSync with any End User Data or other data that: (i) could be deemed “sensitive personal data” under the EU Data Protection Directive 95/46/EC and/or the General Data Protection Regulation (GDPR), (ii) is subject to the laws of any jurisdiction, or (iii) subject to the requirements of any industry or standards setting organization, in each case that would subject such data to heightened restrictions related to the storage, security, transmission and processing of such data (including without limitation data subject to the requirements of the Health Insurance Portability and Accountability Act (HIPAA), the PCI Security Standards Council (PCI-DSS) or the Children’s Online Privacy and Protection Act (COPPA)). Customer shall comply with all laws, rules, regulations, requirements and standards applicable to it as a provider of information technology services, including without limitation all obligation imposed upon Customer or its customers under any applicable data privacy laws, rules, regulations, requirements or standards (“ Customer Laws ”). In addition, Customer shall maintain written security management policies and procedures to prevent, detect, contain, and correct violations of measures taken to protect the confidentiality, integrity, availability, or security of confidential information and data, including any End User Data that Customer may receive.
Term. Unless earlier terminated, this Agreement is made as of the Effective Date and shall continue for so long as any Order remains in effect (the “ Term ”).
Termination. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party if (i) the other Party is in material breach of this Agreement and fails to cure the breach within such thirty (30) days, (ii) the other Party dissolves or becomes insolvent or bankrupt, (iii) the other Party makes an assignment for the benefit of creditors, (iv) the other Party suspends the transaction of its usual business (in absence of a successor), or consent to the appointment of a trustee or receiver, (v) a trustee or receiver of the other Party is appointed, or (vi) any bankruptcy, reorganization, insolvency, or similar proceeding is instituted by or against the other Party and not dismissed within thirty (30) days. In addition to the right to terminate this Agreement, each Party reserves all rights and remedies available to that Party under law or equity, including the right to seek damages and injunctive relief for breach or threatened breach of this Agreement by the other Party.
Effect of Termination. Customer and all Authorized Users shall immediately cease all use of and all access to the NetsSync Subscription Services. Sections 3, 6, 7 (as to amounts due at termination or expiration), and 8, 9, 10 11, 12, 15, 16, 17(b), 17(c) and 18-25 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect. Upon termination of this Agreement and/or deletion of any Authorized User accounts associated with Customer, Customer will not have access to any Content or other data associated with such accounts.
The indemnifying Party’s obligations here under are conditioned on the indemnified Party (i) promptly notifying the indemnifying Party in writing of the claim for which indemnification is sought, (ii) reasonably cooperating with the indemnifying Party in connection with the claim, and (iii) tendering sole control to the indemnifying Party over defense and/or settlement of the claim. The indemnified Party shall have the right to provide for a separate defense with counsel of its own choosing at its own expense.
“ Confidential Information ” means all information disclosed by or on behalf of a Party (the “ Disclosing Party ”) to the other Party (the “ Receiving Party ”), excluding any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Receiving Party at the time of its receipt from the Disclosing Party, (iii) is received on a non-confidential basis from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of or reliance on any of the Confidential Information of the Disclosing Party. The Receiving Party hereby agrees to hold Confidential Information of the Disclosing Party in strict confidence, and to protect such Confidential Information using the same standard of care that it uses to protect its own confidential or proprietary information of a similar nature, but in no case less than a reasonable standard of care; provided, however, that Customer is solely responsible for the confidentiality and protection of user account information. Upon the written request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information of the Disclosing Party in its control or possession. Notwithstanding the foregoing, the Receiving Party may retain, subject to the confidentiality obligations here under (y) Confidential Information of the Disclosing Party or electronic records containing such Confidential Information for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes; and (z) copies of the Confidential Information of the Disclosing Party which the Receiving Party may be required to maintain under applicable law or regulation or for internal auditing and compliance purposes.
Except as expressly permitted by this Section, the Receiving Party agrees not to use or disclose any Confidential Information of the Disclosing Party for any purpose. Notwithstanding the foregoing, NetsSync may (i) use Customer’s Confidential Information as necessary for the provision of the NetsSync Subscription Services or (ii) disclose Customer’s Confidential Information on a “need to know” basis to its affiliates and to its and their employees, officers, subcontractors, and other agents, provided that such parties are subject to written confidentiality agreements. In addition, if the Receiving Party is required by applicable law, regulation or legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party may disclose such Confidential Information only if the Receiving Party has, to the extent legally permissible, promptly provided the Disclosing Party with prior written notice in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section.
The Receiving Party acknowledges that any breach of the confidentiality obligations here under would cause irreparable harm to the Disclosing Party for which no adequate remedy at law exists, and the Receiving Party therefore agrees that, in addition to any other remedies available, the Disclosing Party shall be entitled to seek injunctive relief as a remedy for such breach without the necessity of posting a bond or proving actual damages.
Warranties and Disclaimers.
a. Warranty. NetsSync warrants that, during the thirty (30) day period after installation of any Software or Customer’s first use of the SaaS Offering, any Software or SaaS Offering set forth in an Order will perform in accordance with generally accepted industry standards in NetsSync’s industry. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, NetsSync will repair or replace the affected portion of the NetsSync Subscription Services so that it conforms to the warranty.
b. Warranty Exclusions . The foregoing limited warranty is made to and for the benefit of Customer only. The warranty will apply only if (i) the relevant NetsSync Subscription Services been properly installed and used in accordance with the instructions in the applicable documentation; (ii) no modification or alteration has been made to the relevant NetsSync Subscription Services by anyone other than NetsSync; and (iii) NetsSync receives written notification of the breach during the warranty period described above. The above warranties shall not apply: (a) to defects in the NetsSync Subscription Services due to negligence, abuse or improper use by Customer; or (b) items provided on a no charge or evaluation basis.
Disclaimer . EXCEPT FOR THE FOREGOING WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NetsSync SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NetsSync HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON INFRINGEMENT OF THIRD-PARTY RIGHTS. NetsSync DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE NetsSync SUBSCRIPTION SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE NetsSync SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE NetsSync SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CUSTOMER WILL BE ABLE TO USE THE NetsSync SUBSCRIPTION SERVICES WITH THE THIRD-PARTY SYSTEMS OR THAT DEFECTS IN THE NetsSync SUBSCRIPTION SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT NetsSync GIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
Without limiting the generality of the foregoing, NetsSync makes no warranty, expressed or implied, regarding accuracy, adequacy, completeness, legality, readability, reliability or usefulness of any Customer Content, including End User Data, that is transmitted, formatted or translated via the NetsSync Subscription Services, even where Content has been translated, reformatted, re-tagged or otherwise subjected to technical modifications pursuant to Section 9. The foregoing disclaimer applies to both isolated and aggregate processing, transmission and uses of Content and End User Data. Customer acknowledges that electronic data in transmission may be altered during and subsequent to original distribution. Customer is solely responsible for verifying the accuracy, completeness and appropriate rendering of Content and End User Data before and after transmission through the NetsSync Subscription Services.
Limitation of Liability . TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL NetsSync BE LIABLE FOR (i) PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF COVER OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE NetsSync SUBSCRIPTION SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF NetsSync HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) ANY DAMAGES WHATSOEVER ARISING OUT OF INTERACTIONS AND TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES (INCLUDING WITHOUT LIMITATION THIRD-PARTY SYSTEMS) THROUGH THE NetsSync SUBSCRIPTION SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL NetsSync’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY NetsSync) EXCEED THE GREATER OF (I) THE TOTAL AMOUNT THAT PAID BY CUSTOMER FOR THE NetsSync SUBSCRIPTION SERVICES, IF ANY, IN THE 6-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $10,000.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third-Party Software . Customer acknowledges that (i) the NetsSync Subscription Services may contain other software or components that are either owned by a third party or in the public domain or generally available, and (ii) NetsSync has no proprietary interest in such software or components (collectively and each, the “ Third-Party Software ”), and as such, cannot grant Customer a license to use such Third-Party Software.
Commitments. NetsSync has made no commitments or promises orally or in writing with respect to delivery or any future software features or functions. In relation to any future software features or functions, all presentations, request for proposal responses, and/or product road map documents, information or discussions, either prior to or following the Effective Date, are for informational purposes only, and NetsSync shall have no obligation to provide any future releases or upgrades or any features, enhancements, or functions unless specifically agreed to in writing by both parties. Unless otherwise specifically documented in a Statement of Work, Customer acknowledges that no purchasing decisions are based on any future software features or functionality.
Notices. All notices and communications under this Agreement shall be in writing and given by personal delivery, recognized national overnight courier service, or by India registered or certified mail, in each case, addressed to the parties as follows (or to such other addressed as the Parties may request in writing by notice given pursuant to this Section): to NetsSync , This Agreement, including the attached exhibits and all Order(s) and SOW(s) here under, represents the entire agreement of the Parties and supersedes all prior or contemporaneous agreements between the Parties with respect to the subject matter hereof. This Agreement may only be modified by mutual written agreement executed by authorized representatives of both Parties. This Agreement and any amendment hereto, may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instruments. Except with respect to Customer’s payment obligations and notwithstanding any other provision of this Agreement, a Party shall be excused from any delay or failure in performance of this Agreement to the extent such delay or failure is caused by wildfire, flood, explosion, war, embargo, governmental requirement, civil or military authority, Act of God, or any other causes beyond is reasonable control. Any such delay or failure shall suspend this Agreement until the cause for the delay or failure is removed. Nothing in this Agreement shall be deemed to create any joint venture, partnership, agency, or independent contractor or other similar relationship between NetsSync and Customer. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that no such consent shall be required for any assignment by a party to an entity which succeeds to all or substantially all of such Party’s assets, stock, or business whether by merger, sale, or otherwise. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.