Payment terms are net thirty (30) days from the date of invoice with ongoing credit as determined by Seller in its sole discretion. 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.
All prices and fees payable under these Terms and Conditions are exclusive of tax. Customer shall be responsible for paying taxes arising from the purchase of the Products or Services. If applicable, valid exemption documentation for each taxing jurisdiction shall be provided to Seller prior to invoicing, and Customer shall promptly notify Seller if their exemption is revoked or modified. All payments made by Customer shall be net of any applicable withholding tax. Customer will provide reasonable assistance to Seller in connection with such withholding taxes by promptly: providing Seller with valid tax receipts and other required documentation showing Customer’s payment of any withholding taxes; completing appropriate applications that would reduce the amount of withholding tax to be paid; and notifying and assisting Seller in any audit or tax proceeding related to transactions hereunder. Customer shall comply with all applicable tax laws and regulations, and Customer will promptly pay or reimburse Seller for all costs and damages related to any liability incurred by Seller as a result of Customer’s non-compliance or delay with its responsibilities herein. Neither party shall be liable for taxes or assessments on the other party’s net income, gross income, capital, net worth, franchise, privilege, property, or any similar taxes or assessments. The parties’ obligations hereunder shall survive termination or expiration of these Terms and Conditions.
Notwithstanding the provision of these Terms and Conditions, Netrounds is entitled to refer to a Swedish public court or the Swedish Enforcement Authority any claim for payment of any outstanding invoice.
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. Customer understands and agrees these terms are the sole and exclusive terms of delivery and supersede all additional or inconsistent terms of any purchase order. An anticipated delivery date will be estimated by Seller upon receipt and acceptance of the Customer’s purchase order. The expected 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 and no penalties or any other Customer right of recourse shall apply in the event delivery is not made by the expected delivery date.
Incoterms, place of delivery, and transfer of title from Seller to Customer are as specified below:
||Ship to Location
||Risk of Loss Transfer
||Seller designated cross-dock (Europe)
||Upon pickup at cross dock
||Upon pickup at cross dock
Any related software is licensed and title thereto is retained by Seller or its licensors.4.
SUPPORT & MAINTENANCE SERVICES
In addition to these Terms and Conditions, purchase orders providing for support and maintenance of purchased Products (“Support & Maintenance Services”) are further subject to the applicable Support & Maintenance Services described in the Seller’s current product and services documentation, with the understanding that purchase orders for Cloud Services are inclusive of Support & Maintenance Services.
In addition to these Terms and Conditions, Customer purchase orders accepted by Seller and providing for consulting or other professional services (“Professional Services”) are further subject to the applicable Professional Services described in the Seller’s current product and services documentation.
In addition to these Terms and Conditions, purchase orders providing for Cloud Services are further subject to the ToU.
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.
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 Seller’s EULA.
Seller warrants that (a) Products will be free from defects in materials and workmanship and will materially conform to the then applicable specifications from the date of product shipment for a period of twelve (12) months for Hardware. Seller’s warranty for Software is set forth in the EULA and for SaaS is set forth in the ToU. 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.
Seller’s sole liability and the Customer’s exclusive remedy for breach of any of the Limited Warranties in Article 10 (“Limited Warranties”) shall be, at Seller’s option, 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 product 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 willful 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 Products to facilitate prompt 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(s).
TERM AND TERMINATION
These Terms and Conditions shall remain effective until terminated or until the expiration of the applicable license or subscription term.
Support Services. Notwithstanding the validity of these Terms and Conditions, Support & Maintenance Services for a specific Product will automatically terminate and thereafter not be available under these Terms and Conditions twelve months after notice from Seller to Customer about such Product discontinuation or that Support & Maintenance Service will no longer generally be offered by Seller for such Product.
Either party may terminate these Terms and Conditions 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 these Terms and Conditions which is not rectified (if capable of rectification) within thirty (30) days of the date of 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.
Seller may terminate these Terms and Conditions by notice in writing to Customer on the occurrence of any of the following events:
Immediately, in the case of any breach by the Customer of Article 9 (“Software Licenses”).
Upon sixty (60) days notice to Customer, in the event that Seller provides Customer with revised Terms and Conditions and Customer does not accept the same within such sixty (60) day period.
Obligations. Seller shall indemnify and defend any suit brought against Customer to the extent that it is based upon a claim that Products sold to Customer infringes any third-party United States patent, copyright, trademark, or trade secret (“IP Claims”) and will pay all damages and costs that a court finally awards against Customer as a result of such claim; provided, that Customer: (a) within thirty (30) days of becoming aware of such claim: (i) gives Seller written notice of such claim, and (ii) furnishes Seller with a copy of each communication, notice or other document relating to the claim; (b) gives Seller complete control of the defense and settlement of such claim; and (c) gives all reasonable information and assistance in the defense or settlement of such claim at Customer’s expense.
Remedy. Should Product become, or in Seller’s opinion, likely become the subject of an IP Claim, Seller, at its option, may either: (a) procure for Customer the right to continue using the Product, or (b) replace or modify Product to make it non-infringing provided material functionality is maintained. If, in Seller’s sole opinion, neither of the foregoing alternatives is commercially reasonable, Seller will grant Customer a refund of the purchase price of the relevant Product depreciated on a five-year straight-line basis provided that Customer, at Seller’s option, either returns the Product to Seller or certifies destruction of the Product.
Exclusions. Seller shall have no obligation or liability for, and Customer shall indemnify Seller against, any claim of infringement which is based, in whole or in part, upon (a) the combination, operation or use of the Product with any hardware, software or service supplied by a party other than Seller; (b) any alteration or modification of the Product which is not pre-approved by Seller in writing; (c) any non-Seller branded hardware, software, or service; (d) any specifications, designs or instructions provided to Seller by or on behalf of Customer; (e) Customer’s failure to promptly implement an update or modification to the Product (e.g., install a supported release) provided by Seller; or (f) use of the Product in a manner other than which it was designed or in a manner other than as specified by Seller in its documentation. Seller shall not be obligated or responsible for any settlement entered into or damages arising from admissions by Customer without Seller’s prior written consent.
THE INFRINGEMENT INDEMNITY SET FORTH IN THIS SECTION STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF THIRD PARTY PATENT, COPYRIGHT, TRADEMARK OR TRADE SECRET.
SELLER’S LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS AND/OR SALE OF THE PRODUCTS OR SERVICES SHALL BE LIMITED TO THE GREATER OF (i) $100,000 OR (ii) THE AMOUNTS PAID AND PAYABLE UNDER THESE TERMS AND CONDITIONS BY THE CUSTOMER FOR THE PRODUCTS OR SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) WHICH GAVE RISE TO SUCH LIABILITY, UP TO A MAXIMUM OF $2,000,000 IN AGGREGATE ARISING OUT OF THESE TERMS AND CONDTIONS. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF PRODUCTS OR SERVICES PURCHASED HEREUNDER, OR THE FAILURE OF THE PRODUCTS OR SERVICES TO PERFORM, OR FOR ANY OTHER REASON. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Neither Party may assign any Customer purchase order accepted by Seller or these 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 these Terms and Conditions to any other person or legal entity.
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 Customer purchase order accepted by Seller. Either Seller or the Customer may change its address/es by written notice to the other party.
Seller shall not 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 of its obligations 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 the Seller’s personnel, terrorism, strikes, or labor disputes (“Force Majeure”). In case of Force Majeure, Seller shall promptly notify Customer in writing and furnish it with all relevant information thereto.
The Customer shall not re-export or transfer in country the Products or any portion of it, or any non-published materials or information furnished in connection with the Products or with associated Services without first obtaining all licenses, permits and authorizations under US and any other applicable laws and regulations that export, re-export, transfer in country, use or importation of the Product. Without limiting the foregoing, Customer warrants, represents and agree that Customer does not intend and will not (i) use or permit anyone else to use the Products for or in connection with any Prohibited Activity; (ii) transport, deliver or transmit the Product to, or use the software in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; (iii) grant access to any Product to another person, entity or organization located in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; or (iv) transport, deliver or transmit the Product to a sanctioned party (i.e., a party identified on the US Bureau of Industry and Security (BIS) Entity List, Denied Persons List, Unverified List or the US Office of Foreign Asset Control (OFAC) Specially Designated Nationals list (“SDN List”) (or a party 50% or more controlled by anyone such SDN List), or any other party on any component list of the Comprehensive Screening List (https://www.export.gov/article?id=Consolidated-Screening-List).
If any provision of these 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 Terms and Conditions. Seller and the Customer shall endeavor 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 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 Terms and Conditions shall be interpreted and governed by the laws of the State of California without reference to its conflict of laws principles. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to these Terms and Conditions.
For any disputes arising out of or in connection with these Terms and Conditions, the parties consent to the personal and exclusive jurisdiction of, and venue in, the state and federal courts within Santa Clara County, California, except that Seller may seek equitable relief in any court of competent jurisdiction to protect its Confidential Information from misappropriation or disclosure by the Customer. If the jurisdiction that the Customer is incorporated in will not recognize and enforce the judgment of a California court, the Customer agrees that any controversy or claim arising out of or relating to these Terms and Conditions, or a breach hereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be three, the place of arbitration shall be Santa Clara County, California, U.S.A., and the language of the arbitration shall be English. Any award of the arbitral tribunal shall be final and binding on the parties. The arbitral award may be enforced in any court of competent jurisdiction. Nothing in this clause shall preclude a party from seeking interim equitable relief or orders for interim evidence preservation in any court of competent jurisdiction to prevent irreparable injury to a party’s claim, or to Seller in the event of an actual or possible breach of confidentiality, intellectual property, or proprietary rights provisions in these Terms and Conditions. Any such application to a court shall not be considered demonstrating an intention to act inconsistently in any way with the agreement to settle disputes by arbitration in accordance with the preceding clause.
These Terms and Conditions may not be modified or amended except by written agreement of Seller and the Customer.
Confidential Information means all information disclosed to the other in (i) tangible form and which is designated “Confidential” or “Proprietary”; (ii) disclosed orally, and summarized in writing and delivered to the other party within 30 days of disclosure; or (iii) which by the nature of the information and the circumstances of the disclosure, the receiving party should reasonably infer to be confidential or proprietary. Confidential Information does not include information which: (a) is or becomes generally known through no fault of the receiving party, (b) is known to the receiving party at the time of disclosure, as evidenced by its records, (c) is hereafter furnished to the receiving party by a third party as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving party without any breach of these Terms and Conditions; or (e) is disclosed in response to a valid order of a court or other governmental body or is otherwise required by law to be disclosed, provided the responding party gives sufficient notice to the other party to enable it to take protective measures.
Each party will use a reasonable degree of care to maintain all Confidential Information of the other in confidence and neither will disclose to any third party nor use Confidential Information of the other for any unauthorized purpose. Each party may only disclose Confidential Information to those recipients, employees and representatives as may have a need to know to accomplish the purposes of these Terms and Conditions and who are legally bound by confidentiality obligations consistent with these Terms and Conditions. No rights or licenses to intellectual property in Confidential Information is granted by either party under these Terms and Conditions, whether express, implied or otherwise the obligations imposed on the receiving party shall survive until such time as the Confidential Information of the other party becomes publicly available and/or made generally known through no action of the receiving party. All Confidential Information will be returned (or destroyed) immediately to the disclosing party after the receiving party’s need for it has expired or upon request of the disclosing party or termination of these Terms and Conditions. Each party agrees that the violation of the confidentiality provisions will cause irreparable injury to the other entitling the other party to immediate injunctive or other equitable relief, in addition to, and not in lieu of, any other remedies such party may be entitled to. The disclosure of Confidential Information will be governed by these Terms and Conditions, which supersedes any previous confidentiality or nondisclosure agreement executed by or on behalf of the parties. Any such Confidential Information will be treated as if it were disclosed under these Terms and Conditions (and these Terms and Conditions were in effect) as of the date of such exchange.
Nothing in these Terms and Conditions shall prohibit or limit either party’s use or disclosure of the U.S. Federal income tax treatment and U.S. Federal income tax structure of any transaction contemplated by these Terms and Conditions and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment or tax structure, except where confidentiality is necessary to comply with applicable federal or state securities laws.