These general terms and conditions including specifications, quotation and/or supplemental terms and conditions provided by the Netrounds legal entity with whom Customer is contracting (“Seller”) exclusively governs the sale, lease, subscription or licensing to use or access Software by Seller to Customer of all Netrounds branded products (“Products”) and related services specified in the purchase order (“Services”) whether such sale or licensing is effected by e-mail or paper-based transaction or via facsimile or other forms of electronic data interchange (EDI) or electronic commerce, and represents the entire agreement between Seller and Customer. In the event Seller and Customer are parties to a separate written agreement which is to apply to the provision of Products and/or Services, the terms and conditions of such agreement shall take precedent. Seller expressly objects to any different or additional terms of Customer in a purchase order unless agreed to in writing by Seller.
Payment terms are net thirty (30) days from the date of invoice with ongoing credit as determined by Seller. Seller may render partial invoices and require progressive or installment payments. Seller reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at the time of the agreement and immediately prior to shipment. Seller reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. No payment by offset is permitted. Interest charges will be added to overdue invoices at the rate of 1.5% per month subject to any limit imposed by applicable law.
For Product Lease, rates are based on full contracted time periods. Rates continue to apply beyond the initial lease period until Product is returned to Seller’s designated supply facility. There are no credits or rebates for early return of Product.
DELIVERY, TITLE AND RISK OF LOSS
Products will ship according to Seller’s standard commercial practices. Delivery terms are Ex Works (Seller’s supply facility) (per current Incoterms) or as otherwise agreed in Seller’s order acknowledgement, quotation or other writing by Seller. An anticipated delivery date will be estimated by Seller upon receipt of order. The delivery date is the best estimate possible based on receipt of all necessary information from the Customer and current and anticipated factory operations of when the Product will be delivered. Except for Software, title and risk of loss pass to the Customer Ex Works (Seller’s supply facility) (per current Incoterms). Title to all intellectual property rights in the Software and associated with the Products remains with the Seller or its suppliers and licensors.
For Products, acceptance occurs upon delivery. For Products with installation and other related Services included in the purchase order, acceptance by Customer occurs upon completion of such included Services. For Subscriptions of Software as a Service, acceptance by Customer occurs when the service is made available to the Customer. Customer may not cancel, terminate or suspend for convenience, except with Seller’s prior written consent and only then upon the terms that compensate Seller for its third party charges or expenses and any other costs relating to the cancellation, termination or suspension.
SUPPORT & MAINTENANCE SERVICES
In addition to these general terms and conditions, purchase orders providing for Support & Maintenance of purchased Products are further subject to the applicable Support & Maintenance Services described in the Seller’s current product and services documentation and any Services Agreement signed by Seller and Customer.
In addition to these general terms and conditions, purchase orders providing for Professional Services are further subject to the applicable Professional Services described in the Seller’s current product and services documentation and any Services Agreement signed by Seller and Customer.
SOFTWARE AS A SERVICE (SAAS)
In addition to these general terms and conditions, purchase orders providing for Software as a Service (SAAS) are further subject to the applicable services described in the Seller’s current product and services documentation and any Services Agreement signed by Seller and Customer.
In addition to these general terms and conditions, purchase orders providing for Leased Hardware with pre-installed Software are further subject to the applicable Services described in the Seller’s current product and services documentation and any Services Agreement signed by Seller and Customer.
CUSTOMER OBLIGATION LEASED PRODUCTS
Customer is responsible for any and all theft, loss or damage to Product including damage due to abuse, misuse, or negligence. Customer agrees to pay the charges to repair equipment so damaged, and incurred shipping charges. Product shall be returned to Seller in good condition, wear from reasonable and proper use excepted.
In accepting liability for the safe keeping of all leased Product, Customer agrees to pay Seller the replacement cost of any such Product which is damaged or Customer is for any reason unable to return to Seller at the end of the lease period. Lease charges will continue beyond the specified lease period, at the agreed lease rate, until Product is returned to Seller or Customer reimburses Seller for the replacement cost of such Product. Unless otherwise agreed to in writing, Customer agrees to return Product to Seller at the end of the lease period and to pay for return shipping charges.
NO PURCHASE RIGHTS
Customer has no purchase rights or purchase options for Software as a Service (SAAS) or Leased Products under these terms and conditions.
Customer acknowledges that the Products offered hereunder include proprietary computer programs (“Software”) and related technology which Seller, its affiliates or suppliers owns or licenses and are subject to Customer’s acceptance of additional terms and conditions set forth in a third party license agreement or End-User License Agreement. Software may include software considered to be “open source” software under the Open Source Initiative with source code licensed under the GPL, LGPL and other applicable open source licenses. Such code is available in source code form and may be obtained upon written request to Netrounds AB, at email@example.com. Seller reserves the right to charge a nominal fee covering the cost of performing such distribution, if any, such as the cost of media, shipping and handling. In the absence of a separate license agreement, Customer is granted a non-exclusive, non-transferable, royalty-free license to use the Software, or access the Software pursuant to a Software as a Service (SaaS), only in object code form and solely in conjunctions with Seller provided Products and with no rights to sublicense, assign, disclose, disassemble, decompile, reverse engineer, access the source code or otherwise modify the Software or create derivative works. Customer does not acquire any right, title, or interest in the Software and there are no implied licenses in these general terms and conditions.
Any and all software included with the leased Product shall be subject to Sellers’s standard End-User License Agreement.
In addition to these general terms and conditions, non-production product items are restricted to non-production usage and are subject to use only for internal validation and integration purposes. Netrounds does not grant a non-production license to be used for business purposes or production use.
Leased Products remains the exclusive property of Seller. Customer shall not remove, deface, or obscure ownership labels, trademarks or copyright notices.
Seller warrants that (a) Netrounds branded Products will be free from defects in materials and workmanship and will materially conform to the then applicable specifications from the date of delivery for a period of twelve (12) months for hardware and three (3) months for software. Seller does not warrant the software or any portion thereof is error free. Seller will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence, accident or service by unauthorized third party. To the extent permissible by law, Seller excludes any and all warranty with regard to third party products. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES.
For Leased Products, Seller warrants to Customer only that Product when shipped is in good operating condition. If Product is not received in good operating condition due to a fault of Seller, Seller shall supply replacement Product subject to availability from Seller inventory. Defects or discrepancies to Product must be reported by Customer to Seller by written notification within forty eight (48) hours after Customer receives Product. Absent such notification, the Product will be deemed delivered and accepted by Customer. During the lease period, Seller shall replace the Product with identical or similar Product if due to a fault of Seller the Product fails to operate in accordance with Netrounds’ specifications and operation instructions. Such replacement shall be made as soon as practicable. Customer shall return the non-conforming Product.
Seller’s sole liability and the Customer’s exclusive remedy for breach of any of the Limited Warranties in Article 13 shall be to repair, replace or re-perform free of charge such faults in the Product or performance of Services causing the breach, provided that: (a) the Customer has used the Product in strict accordance with the Documentation and any other written instructions from Seller and provided that the Product has not been used for any other purposes than that for which it was designed, (b) Customer has not, or attempted to, amend, alter, modify or repair the Product in any way otherwise than as instructed in writing by Seller, (c) the fault is not a result of accidents, negligent or wilful acts or omissions of the Customer, (d) in rectifying any faulty Software, the Customer shall, when technically possible, allow Seller to remotely connect to Customer’s system and the Software to facilitate quick diagnosis of the problem in question provided that Seller complies with Customer’s network security procedures, (f) the hardware is returned, upon Seller’s request, to Seller’s designated delivery address at the Customer’s cost and risk, and (g) the Customer has notified Seller in writing of the alleged fault specifying the fault within the above stipulated applicable warranty time period.
TERM AND TERMINATION
These Netrounds Terms and Conditions shall enter into force and effect upon approval of the Agreement and shall remain effective until terminated or until the expiration of the applicable license or subscription term.
Support Services. Notwithstanding the validity of the Agreement, Support Services for a specific Product will automatically terminate and thereafter not be available under the Agreement, twelve months after notice from Seller to Customer about such Product discontinuation or that Support Service will no longer generally be offered by Seller for such Product.
Leased Hardware or Software as a Service subscriptions. The initial term shall commence
(a) in cases where the Software is installed on Leased Hardware, on the date of delivery of the Leased Hardware to Customer, or
(b) the date on which the Software is made available to Customer.
Unless otherwise mutually agreed by the parties, lease/subscriptions shall be automatically renewed for additional terms equal to the expiring term unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the current term.
Either Party may terminate the Agreement by notice in writing to the other Party on the occurrence of any of the following events:
If the other Party has committed a material breach of the Agreement, and not rectified (if capable of rectification) the same within a thirty (30) days time period after receipt of a written notice from the other Party specifying the breach.
If the other Party shall pass a resolution, or any competent court shall make an order, that the other Party shall be wound up or if a trustee in bankruptcy, liquidator, receiver, or manager on behalf of a creditor shall be appointed and such order/appointment is not revoked within thirty (30) days or if it otherwise is reasonably likely that the other Party is insolvent.
In the case of any breach by the Customer of Article 11 (SOFTWARE LICENSES).
Seller shall indemnify and hold the Customer harmless against all actions or claims for infringement of third-party patents, copyrights, registered trademark or other rights related to Netrounds branded Software by reason of the proper use of Products by the Customer, and Seller shall at its option and own expense, either: (a) procure for Customer the rights for continued use of the Software in its present form, (b) replace or modify the Software so that it no longer infringes any such rights, (c) settle or defend any further claim, suit or proceeding against the Customer arising out of such continued use of the Software, or (d) issue the Customer a pro-rated refund on a three year straight line basis upon return the Software to Seller. The liability of Seller and remedy of the Customer for Software in this
Article 16 is strictly conditioned upon and provided that: (a) the Customer without delay informs Seller in writing of any claim made by reasons of alleged infringement as aforesaid and refrains from taking action on account of such claims without previous approval of Seller, (b) the Customer without delay informs Seller in writing if legal action is taken on account of such claims and turns control of the defense over to Seller so that Seller shall have full authority to defend or settle the same through its counsel, (c) Seller is informed of all circumstances which may be relevant in the legal action taken and the Customer refrains from all steps in any legal action which may prejudice Seller including without limitation settling unless Seller is forever released of all claims, (d) in case Seller fails to act against such claims or actions the Customer shall have the right to take appropriate legal action and shall be reimbursed any reasonable expenses in so doing, and (f) the infringement or alleged infringement is not arising out of the use of the Software in combination or conjunction with any other item, or the use thereof, not supplied or manufactured by Seller.
(a) THE ENTIRE LIABILITY OF SELLER, AND THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER, FOR ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED A TOTAL AMOUNT EQUAL TO THE PRICE OF THE DELIVERED PRODUCTS OR CHARGE FOR SERVICES PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES WITHIN THE LAST 12 MONTHS PRECEDING THE CLAIM UNDER THIS AGREEMENT OR ONE HUNDRED THOUSAND EUROS (€100,000), WHICH EVER IS THE LOWER.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY UNDER THE AGREEMENT FOR LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF DATA OR REVENUE OR FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
Neither Party may assign the purchase order or the general terms and conditions, in whole or in part, to any other party without the prior written consent of the other Party, except that Seller may assign the Agreement to any other legal entity in the Netrounds group of companies.
NOTICES AND CONTACTS
All notices and other communication between Seller and the Customer shall be in writing in the English language and be sent to the address/es stated in the purchase order. Either Seller or the Customer may change its address/es by written notice to the other party.
Neither Seller nor the Customer shall be liable in any way for any damage, loss, cost or expense arising out of or in connections with any delay, restriction, interference or failure in performing any obligation hereunder caused by any circumstance beyond its reasonable control, including without limitation, acts of God (such as earthquake, flood, fire, eruption or explosion), accident, natural disaster, embargo, acts of government including non-availability of an export license or visa and permits for a Party’s personnel, terrorism, strikes, labour disputes (“Force Majeure”). In case of Force Majeure, the affected party shall promptly notify the other party in writing and furnish it with all relevant information thereto.
Except as otherwise provided in the applicable purchase order or quotations, the Customer shall be responsible for all required export and import licences, permits and customs fees or duties. Customer shall not export, re-export, transfer, directly or indirectly, any Product or technical data received hereunder, to any country or user to which such export, re-export or transfer is restricted by the United States of America or local country law or regulation. In the event that the provision of any Product or any part thereof is prohibited by applicable export control laws or regulations, then: (a) Seller shall have no obligation whatsoever to deliver the Product or any part thereof to the Customer and (b) Seller shall have no liability to the Customer or any third party for its failure to deliver the Product or any part thereof to the Customer except to refund any amount pre-paid by the Customer.
If any provision of these general terms and conditions is held to be invalid, illegal, void or for any reason unenforceable, then the provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions of these general terms and conditions. Seller and the Customer shall endeavour in good-faith negotiations to replace the invalid provision with a valid provision, which shall, to the utmost possible extent, closely correspond to the legal and economic contents of the invalid or unenforceable provision.
Failure by either Seller or the Customer to enforce at any time any term or condition of these general terms and conditions shall not be construed as a waiver of such term or condition or the right to enforce any such prior or subsequently failed term or condition.
GOVERNING LAW AND DISPUTE RESOLUTION
These general terms and conditions shall be governed by the domestic law of the country of Seller without regard to the conflicts rules of law thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes, differences or questions between Seller and Customer with respect to any matter arising out of or relating to these general terms and conditions shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators appointed in accordance with the said Rules. The proceedings shall take place in the capital city of the country of Seller’s legal-registered address and be conducted in the English language. The English language version of these general terms and conditions prevails over any other language version. Seller and the Customer undertake and agree that all arbitral proceedings conducted under this Article 24 shall be kept strictly confidential, and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.
These general terms and conditions may not be modified or amended except by written agreement of Seller and the Customer.
Absent a separate agreement governing disclosure of confidential or proprietary information, all confidential and proprietary information disclosed by Seller hereunder shall be received in confidence by the Customer, may not be disclosed to third parties without Seller’s prior written consent and shall remain the exclusive property of Seller or its affiliates. Customer shall exercise the same level of care with Seller’s confidential information as if it were Customer’s own confidential information but in no event less than reasonable care. The Customer shall not use confidential or proprietary information except in connection with the applicable purchase order and shall only disseminate or disclose confidential and proprietary information to its employees, consultants, or subcontractors on a need to know basis. Nothing contained in this Article 19 shall be construed as granting or conferring upon the Customer any rights or licenses of any intellectual property right. The obligations of the Customer in this Article 26 shall survive the termination or fulfilment of this purchase order.