Subscription and Product Use Agreement
Movegistics & Netensity Subscription and Product Use Agreement
Last updated: April 12, 2017
Any subscriber to the product or services provided under the trade names Movegistics and Netensity hereby agrees to, and accepts, the terms of this master subscription agreement, effective between Netensity corporation (Netensity) and the subscriber. Subscriber accepts the agreement by registering for the free trial services, using, licensing, acquiring, clicking a box requiring acceptance by subscriber, or by executing a purchase agreement that references this agreement.
Subscriber is any individual user who uses these Products or Services for personal use, or a user authorized by an entity to use the Products or Services.
Entity means a legal entity such as a company or business, or an affiliated entity such as a subsidiary or parent company. If Subscriber is using this product or service on behalf of an entity, Subscriber represents that Subscriber has the authority to bind the entity to the terms and conditions of this agreement. If Subscriber does not have any authority to represent the entity, or if Subscriber does not agree with these terms and conditions, Subscriber must not accept this agreement and may not use these Products and Services.
Netensity is a California corporation with principal place of business at 1068 Balin Ct, Folsom, CA 95630.
Data means all information provided by, or entered into, the Products or Services by the Subscriber.
Fees means all Subscription fees, payments for Products or Services, leases of the Products or Services, fees for accessing the Products or Services for a period of time or for a particular job or event, and the like.
Free Trial Services means a period of up to thirty (30) days in which a new Subscriber may use and/or try Products or Services for free.
Products or Services means Netensity’s proprietary Products or Services including computer software, computer code instructions, cloud based applications, customer information, contact information for persons or businesses, database(s), portals, web-sites, and other access to Products or Services offered by Netensity. A portal or website is an internet-based application maintained by Netensity.
Provider means any entity, other than Netensity, which provides Third-Party Applications.
Purchase Agreement means a commitment to purchase the Product or Services as mutually agreed upon by Netensity and Subscriber, which may be a written agreement, or affected by Subscriber registering for, using, licensing, acquiring, or clicking a box requiring acceptance of this Agreement.
Purchased Products or Services means Products or Services which are contracted to be purchased or paid for, by the Subscriber, as distinguished from Products or Services provided under a Free Trial Service.
Subscription means a non-exclusive, non-transferable, right to use the Products or Services in accordance with this Agreement and any Purchase Agreement.
Subscription Fees means the agreed upon fees for subscribing to the Products or Services.
Subscription Term means the time period designated for the subscription.
Taxes means all governmental assessments made by any local, state, provincial, federal or foreign jurisdiction, such as for example, taxes, value-added taxes, sale tax, use taxation, withholding taxes, property taxes, levies or duties.
Third-party Applications means internet applications, portals, websites, software products, and customization and other consulting services, provided by Provider (third-party entity or individual) other than Netensity.
User Guide refers to the guide for users of the Products or Services, which can be in the form of printed matter or accessible via the Netensity or Movegistics websites.
1. Responsibilities for availability, usage and content
1.1 Netensity shall use commercially reasonable efforts to (i) make any Purchased Products or Services available 24 hours a day, (ii) provide support during business hours for Purchased Products or Services, (ii) provide advanced warning to Subscribers for planned downtime, (iii) maintain appropriate safeguards to protect any Data entered by Subscriber into the Purchased Products or Services, and (iv) comply with applicable laws and regulations with respect to the Purchased Products or Services.
1.2 Subscriber shall be responsible for (i) using reasonable efforts to prevent unauthorized access to, or use of the Products or Services, (ii) using reasonable efforts to notify Netensity promptly of any unauthorized access or use, and (iii) complying with this Agreement, (iv) complying with applicable laws and regulations governing Data related to any person or legal entity that is being entered into the Products or Services by Subscriber, (v) using reasonable efforts to ensure that Data being entered into the Products or Services by the Subscriber is complete and accurate; (vi) complying with laws and regulations governing acquisition by the Subscriber, (vii) complying with applicable laws and regulations concerning the privacy of persons who’s information is being used as Data.
1.3 Subscriber shall not (i) attempt to gain unauthorized access to the Products or Services, (ii) adversely affect the performance of the Products or Services, or any Data entered into the Products or Services by the Subscriber or any other person or entity, (iii) sell, resell, rent or lease any of the Products or Services, (iv) transmit, cause to be transmitted, or store on the Products or Services any malicious code, infringing material, libelous information, material in violation of any person’s privacy rights, or otherwise unlawful material. Subscriber agrees to indemnify Netensity for any and all damages incurred by Netensity, other Subscribers, or any third-party, for any violation of this agreement.
1.4 Subscriber understand and agrees that:
(i) usage of the Products or Services may be subject to limitations, including, but not limited to, the number of Users included in the Purchase Agreement or Subscription Agreement, daily usage time limits, disk storage space, number of calls and page views, maximum Data limits, down-time arising from system maintenance, upgrades, malicious or un-authorized usage by third-parties;
(ii) usage of the Products or Services may be made unavailable due to circumstances beyond Netensity’s reasonable control, including, but not limited to, internet service provider failures, delays, and denial of service attacks, acts of God or Government, natural phenomena such as floods, fires, and earthquakes, civil disobedience, labor strikes and unrest, and acts of terror;
(iii) the content of Purchased Products or Services and Subscription Services are not contingent on the addition or availability of any functionality or features, even if such functionality or features are suggested by any oral or written public comments made by Netensity;
(iv) Subscriber will not provide or authorize access to the Products or Services to any direct competitor of Netensity without a consent in writing Netensity; and
(v) Subscriber will not engage in, provide, or authorize access to the Products and Services for the purposes of monitoring the activity of, functionality, performance, or for any other function that would violate applicable laws and regulations.
2. Free trial services and beta products/services
2.1 Subscriber can register for Free Trial Services on the trial registration page of the Netensity website or via telephone. The Free Trial Services period will terminate when (i) the free trial period for which Subscriber has registered has ended; or (ii) the Subscriber has purchased or subscribed to the Products or Services. Subscriber agrees that during the Free Trial Services period, all Products or Services provided herein, are being provided on an AS-IS basis and without any warranty. Further, Subscriber understands that unless Subscriber purchases or subscribes to the Products or Services before the end of the Free Trial Service period, that any Data entered into the Products or Services by the Subscriber, adaptation of the Products or Services by Subscriber for their use or for the use by others, or any other modification of the Products or Services by Subscriber during the Free Trial Service period may be lost.
2.2 Beta products/services, which are new or partially developed, may be provided by Netensity to any user or Subscriber on a Free Trial Service basis or otherwise. Beta Products/Services are provided for evaluation purposes and not for production use, may contain bugs or errors, and may be subject to additional terms. These Beta Products/Services do not fall within the category of Products or Services as defined in this Agreement. Beta Products/Services are provided AS IS, and carry no express or implied warranties. A Subscriber may accept or decline any of the Beta Products/Services.
3. Subscriber’s payment obligations
3.1 Subscriber agrees (i) to pay all fees specified in the Purchase Agreement, and understands that such fees are charged per month, and are not based on actual usage, (ii) to provide complete billing, contact and user information to Netensity and to notify Netensity of any changes to billing information, (iii) that fees, and obligations to pay fees, as specified in the Purchase Agreement are non-cancelable and non-refundable, even if Subscriber subsequently desires a fewer number of Subscriptions during the relevant subscription term, (iv) that fees are charged per month, and new Subscriptions will be prorated for the number of days in the month that the subscription is needed, and that (v) invoiced charges are due within 30 days from the invoice date.
3.2 Subscriber shall pay all agreed-upon fees by check, bank draft, wire transfer, or by providing valid credit card information. Subscriber authorizes Netensity to charge fees to any credit card provided by Subscriber to Netensity for the (i) initial subscription term; (ii) renewal subscription term; (iii) and any fees which are more than 30 days overdue. Netensity will charge the Subscriber five (5) days prior to the renewal date of the subscription, the renewal charges will occur as agreed upon in the Purchase Agreement.
3.3 Subscriber agrees (i) to pay late payment charges that include interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, for any fees due and not received from Subscriber by the due date, (ii) that such late payment charges accrue from the date such payment was due until the date paid, (iii) Netensity may revise future subscription renewals and the Purchase Agreement in view of late payments by Subscriber, and (iv) collection of late payment charges is at the sole discretion of Netensity. Further, Subscriber agrees that Netensity may accelerate Subscriber’s unpaid fee obligations to render the same due immediately and/or suspend Subscriber’s access to the Products or Services until all fees due are paid in full.
3.4 Subscriber agrees to pay all taxes, levies or duties, governmental assessments, value-added, sales, use, withholding and property taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes), associated with the purchases or subscriptions made under this Agreement. If Netensity has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Netensity with a valid tax exemption certificate, authorized by the appropriate taxing authority.
3.5 Subscriber agrees that Netensity may require Subscribe to pay on demand all reasonable attorney fees and other costs incurred by Netensity to collect any fees or charges due under this Agreement following any breach of contract by Subscriber.
3.6 Netensity shall give at least 5 days notice of overdue fees to Subscriber before suspending services for late payment, or charging overdue or late payment charges to Subscriber. Netensity shall not exercise collection of late payment charges, or terminate subscription services, if Subscriber has a reasonable and good faith basis for disputing the applicable charges and is cooperating diligently to resolve the dispute.
4. Intellectual property rights
4.1 Netensity maintains and reserves all rights, title and interest in and to the Products or Services, including all related intellectual property rights, other than the limited rights to use the Products or Services that are granted to Subscriber as specified herein.
4.2 Subscriber agrees and understands that no intellectual property or other rights are granted to Subscriber under this Agreement other than limited usage rights as expressly set forth herein.
4.3 Subscriber agrees that Netensity shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Products or Services, any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, relating to the Products or Services.
4.4 Subscriber agrees not to (i) create derivate works based on the Products or Services except as authorized herein, (ii) frame or mirror any portion of the Products or Services, other than copying or framing on Subscriber’s own portal, intranets, or internal business application, (iii) reverse engineer any portion of the Products or Services, (iv) develop a competitive product or service by copying the features, functionality or user displays of the Products or Services, or (vi) copy, reproduce, modify, adapt, or translate, or disassemble, decompile, reverse engineer or make any other attempt by any means to discover or obtain the source code of the Products or Services.
4.5 Subscriber grants to Netensity the right to host, copy, transmit, display and adapt, any software programs, applications, program code instructions, portals or websites, which were created using the Products or Services, by Subscriber, an agent acting on behalf of Subscriber or a licensor of Subscriber. Subject to the above, Netensity acquires no right, title or interest from Subscriber or its agents and licensors in or to the software programs, applications, program code instructions, portals or websites created as specified in this paragraph.
5. Confidential information
5.1 Confidential information is information that a person would reasonably understand to be confidential in view of the type of information and circumstances of disclosure, or which is designated as confidential. The Disclosing Party discloses the confidential information, orally or in writing, to a Receiving Party. Confidential Information does not include any information that is (i) already known, or becomes known to the public, without disclosure of the information from the Receiving Party, (ii) was already known to the Receiving Party prior to disclosure by the Disclosing Party, (iii) is received from a third party, or (iv) was independently developed by the Receiving Party.
5.2 Subscriber’s Confidential Information includes the Data entered by the Subscriber into the Products or Services, files that are input into the Products or Services, and communications made by Subscriber to others in the course of using the Products or Services.
5.3 Netensity’s Confidential Information includes (i) any proprietary database(s) provided by the Products or Services, which may include contact information of persons or entities, web site URL addresses, applications and other valuable information, and (ii) the design and features of the Products or Services, plans of future Products or Services, business and marketing plans, technology, and related technical information.
5.4 Receiving Party shall (i) use reasonable care to limit access to Confidential Information to only those of its employees, contractors or agents, who need access to the Confidential Information for purposes consistent with this Agreement, (ii) obtain signed confidentiality agreements with all persons receiving Confidential Information, and (iii) comply with any other restrictions on use or disclosure of the Confidential Information made by the Disclosing Party in a writing.
5.5 Receiving Party can (i) disclose Confidential Information if compelled by law to do so, and with prior notice of such compelled disclosure to the extent such notice is permissible, (ii) obtain reimbursement from the Disclosing Party for expenditures incurred as a result of the Disclosing Party instructions to contest the disclosure. Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information when the Receiving Party is compelled by law to disclose the Confidential Information as part of a civil proceeding.
6.1 Netensity warrants that (i) the Products or Services shall perform materially in accordance with the User Guide, (ii) it has the legal power to enter into this Agreement, and has validly entered into this Agreement, and (iii) Netensity will not intentionally transmit malicious code to Subscriber, provided, further, that Subscriber agrees and acknowledges that Netensity shall have no liability for breach of this warranty for any malicious code introduced by a third-party.
6.2 Netensity may, at any time and in its sole discretion, modify the Products or Services, and such modification is not a breach of the Warranties.
6.3 Subscriber warrants that it has the legal power to enter into this Agreement, has validly entered into this Agreement, will comply with all applicable laws and regulations, and Subscriber’s agrees that the exclusive remedy for the breach of this warranty shall be Termination for Cause and Refund of Payment upon Termination, as described in the sections below.
Except as expressly provided herein, neither Netensity nor Subscriber makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose to the maximum extent permissible by applicable law.
8.1 Netensity shall defend Subscriber against any claim or proceeding made against Subscriber by any third party alleging that the use of the Products or Services as permitted hereunder infringes or misappropriates the intellectual property rights of the third party and indemnify Subscriber for any damages, attorney fees and costs awarded against Subscriber in a final judgment or paid by Subscriber in a court-approved settlement. Netensity may (i) modify the Products or Services to avoid the third-party claim, (ii) obtain a license for Subscriber from the third party, or (iii) terminate any subscriptions of Subscriber upon 10 days written notice, and refund to Subscriber any prepaid fees that would otherwise extend the subscription beyond the termination date; provided that Subscriber (i) promptly gives written notice of any claim or proceeding made against Subscriber by a third party to Netensity, (ii) allows Netensity to control the defense and settlement of the claim or proceeding, and (iii) provides all reasonable assistance to Netensity to obtain resolution of the claim or proceeding.
8.2 Subscriber shall defend Netensity against any claim or proceeding made against Netensity by any third party alleging that the use of the Products or Services as permitted hereunder infringes or misappropriates the intellectual property rights of the third party, or breaks a law or government regulation, (ii) shall indemnify Netensity for any damages, attorney fees and costs awarded against Netensity in a final judgment or paid by Netensity in a court-approved settlement. Provided that Netensity (i) promptly gives written notice of any claim or proceeding made against Netensity by a third party to Subscriber, (ii) allows Subscriber to control the defense and settlement of the claim or proceeding, and (iii) provides all reasonable assistance to Subscriber to obtain resolution of the claim or proceeding.
8.3 Netensity and Subscriber mutually agree that the indemnification set forth in this section is the exclusive remedy, and sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
9. Limitation of liability
9.1 Subscriber agrees that Netensity’s liability with respect to any incident arising out of or relating to this Agreement shall not exceed the amount paid by Subscriber under the Purchase Agreement in the 6 months preceding the incident or $50,000, whichever is lower. The incident creating the liability can be based on for example, contract, tort, or any other theory of liability. This section does not limit any payment obligations of SUBSCRIBER under the Purchase Agreement.
9.2 To the extent permitted by applicable law, Neither party shall be liable to the other for any special, indirect, incidental, consequential, multiple, or punitive damages of any kind, including, without limitation, lost profits, even if advised of the possibility thereof. The foregoing limitation of liability shall not apply to amounts payable by a party pursuant to its indemnification and confidentiality obligations hereunder, but shall apply in all other instances regardless of the cause of action under which such damages are sought.
The Term of this Agreement commences on the date Subscriber accepts the Agreement or the date specified in the Purchase Agreement, and continues until all Subscriptions granted in accordance with this Agreement have naturally expired or have been terminated.
Free trial services commences on the date that Subscriber elects to use the Products or Services for a free trial period, and terminates when the free trial period for which Subscriber has registered has ended, or when the Subscriber has purchased or subscribed to the Products or Services.
11. Renewal and pricing
11.1 Subscriber agrees that this Purchased Products or Services shall automatically renew for successive periods equal to the period of the original term, the expiring subscription term, or one year, whichever is shorter, on the same terms and conditions hereof, subject to Sectoin 11.2. Either party may terminate automatic renewal at least 30 days prior to the end of the relevant term, by giving written notice to the other party of its intent to not renew the term.
11.2 Netensity reserves all rights to increase pricing of the Products or Services by providing a written notice to Subscriber of the pricing increase at least 30 days before the end of the term. Such pricing increases shall be effective for all renewals including automatic renewals.
12. Termination for cause
12.1 Netensity and Subscriber both agree that either party may terminate this Agreement for cause (i) by providing 30 days written notice to the other party of a material breach, and if such breach remains uncured at the expiration of such period, or (ii) either party becomes the subject of a proceeding relating to bankruptcy insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.2 Subscriber agrees that termination does not relieve Subscriber of the obligation to pay any fees payable to Netensity for the period prior to the effective date of termination. Subscriber further agrees that upon termination of the Agreement by Netensity, Subscriber shall pay any unpaid fees covering the remainder of the term of the Purchase Agreement.
12.3 Netensity agrees that upon termination for cause by Subscriber, Netensity will provide Subscriber with a refund of any prepaid fees covering the remainder of the term of all subscriptions after the effective termination date.
13. Return of data Within 30 days of the effective termination date, Subscriber must request from Netensity, and Netensity must make available to Subscriber for download, a file containing the Data entered by Subscriber into the Products and Services. However, Subscriber agrees and understands that Netensity may in its sole discretion maintain and keep the Data entered into the Products or Services for any period of time following termination, but is under no obligation to maintain or keep the Data after 30 days from the termination date, unless written notice is provided to Netensity of a legal proceeding that requires the Data.
14. Third-party applications
14.1 Netensity may have Third-Party Applications made available to Subscriber in the Products or Services. Netensity does not warrant or support any Third-Party Application, and is not responsible for any contract or arrangement made between Subscriber and any provider providing a Third-Party Application.
14.2 Subscriber agrees to review the terms and conditions of Third-Party Applications which Subscriber accesses through the Products or Services, and Subscriber agrees to independently contract with the Third-Party Application and its Provider, should their terms and conditions be acceptable to Subscriber. If and when the Subscriber accepts the terms and conditions of he Third-Party Application and Provider, Subscriber agrees that Netensity may allow any Third-Party Application and Provider to access Data entered by Subscriber into the Products or Services.
14.3 Netensity shall not be responsible for (i) any disclosure, modification or deletion of Data entered by Subscriber which may result from access to the Products or Services by Third-Party Application or Provider, (ii) interoperability, delays, cessation or termination of the Third-Party Application, (iii) any laws or government regulations which are broken by the Third-Party Application or Provider, and (iv) providing any refund or other compensation to Subscriber upon occurrence of any of the events listed in this paragraph.
15. Governing law, jurisdiction and notice
15.1 Subscribers are contracting with Netensity Corporation, a California corporation, with principal place of business at, 1068 Balin Ct, Folsom, CA 95630. Notice under this Agreement should be addressed to: Attn. Global Sales & Support, Netensity Corporation, 3310 Giovanni Way, Dublin CA 94568, or faxed to: Attn: Global Sales & Support. Fax: +1-855-222-8488, with a simultaneous email copy to Richard Gora, Esq., Gora LLC, 9 W. Broad St., Suite 550, Stamford, CT, email@example.com. The laws of California and controlling United States federal law control the terms of this Agreement. Courts located in San Francisco, CA have exclusive jurisdiction over this Agreement, and Subscriber hereby waives any objections to personal jurisdiction in those courts and agrees not to object on personal jurisdiction or venue grounds.
16. Additional provisions
16.1. Subscriber and Netensity mutually agree that they are both independent contractors, and have no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Subscriber and Netensity mutually agree that there are no third-party beneficiaries to this Agreement.
16.2. Subscriber and Netensity mutually agree that no failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
16.3 Subscriber and Netensity mutually agree that (i) neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party; however, such consent shall not be withheld under reasonable commercial standards, (ii) either party may assign this Agreement in its entirety without consent of the other party, to an Affiliate entity or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, (iii) a party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party, and (iv) this Agreement shall bind and inure to the benefit of the parties, their respective successors and proper assigns.
16.4 The Products and Services may be subject to export laws and regulations of the United States and other jurisdictions. Netensity and Subscriber represent that they are not named on any U.S. government denied-party list. Subscriber agrees not to permit access to the Products or Services in any U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. Subscriber agrees not to violate US anti-corruption laws and regulations by, for example, receiving, offering, or being offered, any bribe, kickback, payment, or gift from any of Netensity employees or agents in connection with this Agreement, and Subscriber agrees to use reasonable efforts to promptly notify Netensity of any transgression of this section.
17. Severability and entire agreement
17.1. If any provision of this Agreement is held by a Court having competent jurisdiction to be contrary to law, the provision shall be modified by the Court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
17.2. Subscriber and Netensity mutually agree that this Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the terms of such exhibit, addendum or order form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
18. Surviving provisions of this agreement
The following provisions will survive any termination or expiration of this Agreement: Section 3. Subscriber’s payment obligations; Section 4. Intellectual property rights; Section 5. Confidential Information; Section 7. Disclaimer; Section 8. Indemnification; Section 9. Limitation of liability; Sections 12.2 and 12.3 in Termination for cause; Section 13. Return of data; Section 12. Third-party applications; Section 13. Governing law, jurisdiction and notice; Section 16. Additional provisions; and Section 17. Severability and entire agreement.