“Affiliate” means any entity and its successors which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. An entity shall be considered an Affiliate only so long as such entity continues to meet the foregoing definition.
“Approved Source” means a reseller of Netrounds Products that sells Netrounds Products and Cloud Services to End Users pursuant to a valid contract with Netrounds to conduct such resale activities.
“Cloud Services” means the online, web-based applications and platform, including the Netrounds Control Center, provided by Netrounds via Netrounds designated websites (including as described in the Documentation), that are ordered by You as part of a free trial or purchased Cloud Services, including associated offline components, but excluding third party applications, that You purchase from Netrounds or an Approved Source as a subscription.
“Documentation” means written information published by Netrounds (whether contained in Netrounds issued user or technical manuals, support documentation, training materials, specifications or otherwise) pertaining to the Cloud Services or Software.
“Netrounds Product” or “Netrounds Products” means Netrounds hardware products and Software products, or any part thereof, that You purchase or license from Netrounds or purchases from an Approved Source.
“Malicious Code” means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents, programs, or any identifying information or other metadata associated with them, such as suspected malicious website, url or IP addresses.
“Processed Data” means information about Your systems in connection with Your usage of the Cloud Service, as well as any network management information or configuration data from the use of Your Processed Data with the Cloud Service.
“Software” means the program modules and features of any Netrounds supplied software. “Software” also includes Netrounds supplied updates of such Software.
“Subscription Term” means the period of time for which You have purchased access to and use of the Cloud Services.
“Suggestions” means all suggested improvements to the Cloud Services that You provide to Us.
“Users” means individuals who are authorized by You to use on Your behalf the Cloud Services for which subscriptions have been purchased by You or as part of a free trial, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include, but are not limited to, Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us,” “Our“, or “Netrounds” means Netrounds AB.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement (but excluding any parent, subsidiary or other Affiliate of any of the foregoing).
“Your Data” means all information submitted by You to the Cloud Services and may include third party data that You submit to the Cloud Services.
Upon acceptance of this Agreement, We may provide the Cloud Services to You free of charge until the earlier of (a) cancellation of free trial Cloud Services in Our sole discretion and without notice, (b) expiration of free trial Cloud Services, time-limited by Us under additional trial terms, or (c) the start date of any purchased Cloud Services ordered by You. Additional trial terms and conditions may appear on the Netrounds registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. If the Cloud Service is made available as a feature of a Netrounds Product, the Netrounds Product(s) is/are not provided as a part of the Cloud Service and must be purchased separately from an Approved Source or Netrounds.
Please review the Documentation during the trial period so that You become familiar with the features and functions of the Cloud Services before You make Your purchase. You acknowledge that You have had the opportunity to review the Documentation.
RESPONSIBILITIES AND RESTRICTIONS
Our Responsibilities. In accordance with the applicable Documentation, We shall provide to You access to the Cloud Services and provide associated support & maintenance of the Cloud Services (“Support & Maintenance Services”). Support & Maintenance Servicecs will be provided at no additional charge through the Netrounds technical assistance center. Support & Maintenance Services for Cloud Services are subject to the terms and conditions of this Agreement, including, without limitation, the Documentation.
Your Responsibilities. You shall (i) require your Users’ compliance with this Agreement, (ii) if applicable, be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) prevent unauthorized access to or use of the Services, and notify Us promptly both orally and in writing of any such unauthorized access or use, (iv) use the Services only in accordance with the Documentation and applicable laws and government regulations, (v) obtain any and all third party consents necessary for the Services to utilize Your Data, (vi) if applicable, maintain the Netrounds Products connected with the Cloud Service under the terms of Netrounds’s applicable support services contract or like contract issued by a Netrounds-authorized support services partner, and (vii), use the Cloud Services with only appropriately licensed and Netrounds approved third party software and technology. If the Cloud Service is made available as a feature of a Netrounds Product, the Netrounds Product(s) is/are not provided as a part of the Cloud Service and must be purchased separately from an Approved Source or Netrounds. To the extent that Cloud Services include security features and functionalities, You will not rely on the Cloud Services as Your network’s sole, complete, or timely source of protection from network security threats, including but not limited to, Malicious Code.
Restrictions. You shall not (a) authorize or allow any person or entity’s direct or indirect access to the Cloud Services (or make use of the Cloud Services) other than a User or Users acting for Your sole benefit in furtherance of Your internal business operations; (b) use the Cloud Services with third party products other than those for which the Cloud Services were purchased or otherwise intended to be used with Our Cloud Services, (b) sell, resell, rent or lease the Cloud Services, (c) use the Cloud Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Cloud Services to store or transmit Malicious Code (except to the extent that the Cloud Services include malware scanning, security screening or other threat detection features, such as the option for You to submit custom threat feeds), (e) interfere with or disrupt the integrity or performance of the Cloud Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Cloud Services or their related systems or networks (g) permit any third party to access the Cloud Services except as permitted herein, (h) create derivative works based on the Cloud Services, (i) copy, frame or mirror any part or content of the Cloud Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (j) reverse engineer the Cloud Services, or k) access the Cloud Services in order to (1) build a competitive product or service, or (2) copy any features, functions, user interfaces or graphics of the Cloud Services. Additionally, You shall take all necessary precautions to prevent any individual, entity or organization from gaining access to the Cloud Service if You know, or have reason to believe, that such individual, entity or organization is (or is acting on behalf of) either (1) any individual, entity or organization identified as a sanctioned party on any list maintained and published by the U.S. Department of Treasury, Office of Foreign Asset Control, or on any similar list of sanctioned parties published by an agency of the UN, the EU or any member country of the EU, or (2) an entity or organization 50% or more controlled, directly or indirectly, by a party so listed. You shall take all necessary precautions to prevent any Netrounds Product or other physical or virtual network device from directly or indirectly accessing or engaging in any session or other network communication with the Cloud Services if You know or have reason to believe either (i) that such Netrounds Product or device is located in an Embargoed Region or (ii) has otherwise been exported or re-exported in violation of US or other applicable export controls. We reserve the right, without liability to Us, to disable Your access to the Cloud Services in the event of any material breach by You or Your Users or anyone on Your behalf, of the provisions set forth in this Section 3.3.
Network Connection. You shall be solely responsible for procuring and maintaining Your network connections and telecommunication links from Your systems to Our servers where the cloud-based Software is installed. You shall be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links, or internet connection.
Subscription Activation. The Subscription Term will begin upon delivery to You (via email) of the acess information to the Cloud Services and continue to be in full force and effect up to the end of the Subscription Term.
Expired Subscription Renewals. For Cloud Service subscriptions that have lapsed, (i) subscription renewals will be backdated to the day following the end of the expired Subscription Term, and (ii) after thirty (30) days, We will reduce or disable Your access to the Cloud Service. If Your access is disabled due to a lapse of thirty (30) days, then You must purchase a new subscription to resume the Cloud Service.
Payment Terms. If You are buying pass-through Cloud Services from Approved Source, You will pay all fees based on Approved Source’s invoice. In the event that You are purchasing Cloud Services directly from Us, You will pay Us the Cloud Services fee based on Our invoice in accordance with the Netrounds’ Terms and Conditions.
Cancellations. Pre-paid subscriptions to Cloud Services are non-cancellable and non-refundable unless such cancellation is due to Netrounds’s breach of these Terms.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Cloud Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
U.S. Government Customers. We provide the Cloud Services, including related software and technology, for ultimate United States federal government end use solely in accordance with the following: Government technical data and software rights related to the Cloud Services include only those rights customarily provided to the public as referenced herein. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
. The Cloud Service is provided in connection wtih licensed Software which is subject to the Netrounds End User License Agreement found at www.netrounds.com/company/terms-and-conditions/
or as otherwise agreed by the parties in writing.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data (other than Licensed End User Materials); Our Confidential Information shall include the Cloud Services and Software; and Confidential Information of each party shall include the terms and conditions of this Agreement and all order forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by court order or subpoena to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Injunctive Relief. In the event of a threatened or actual breach of this Section 5, the non-breaching party shall be entitled to seek immediate injunctive or other equitable relief, in addition to, and not in lieu of, any other available remedies.
WARRANTIES AND DISCLAIMERS
Purchased Cloud Services Warranty. We warrant that (i) the purchased Cloud Services shall perform materially in accordance with the applicable Documentation, and (ii) the functionality of the purchased Cloud Services will not be materially degraded during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 7.3 (Termination for Cause) below.
Disclaimer of Free Trial Cloud Services. THE CLOUD SERVICES PROVIDED AND DESCRIBED UNDER SECTION 2 (FREE TRIAL) ARE PROVIDED “AS-IS” AND “AS-AVAILABLE” WITH NO WARRANTY, REPRESENTATION, OR CONSIDERATION OF ANY KIND.
Your Warranties. You represent and warrant that (i) You have the legal power to enter into this Agreement, and (ii) You obtained any and all necessary third party consents to legally provide Us with Your Data.
Disclaimer. NETROUNDS DISCLAIMS ANY WARRANTY, REPRESENTATION, CONSIDERATION OR ASSURANCE THAT THE CLOUD SERVICES OR THE NETWORK RUNNING THE CLOUD SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. NETROUNDS FURTHER DISCLAIMS ANY WARRANTY, REPRESENTATION, CONSIDERATION OR ASSURANCE THAT ANY SECURITY FEATURES INCLUDED WITH THE CLOUD SERVICES WILL BE PROVIDED IN REAL TIME. EXCEPT FOR THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN SECTION 6.1 (PURCHASED SERVICES WARRANTY) AND TO THE EXTENT PERMITTED BY LAW, NETROUNDS DISCLAIMS ALL CONDITIONS, REMEDIES AND WARRANTIES IN AND TO THE CLOUD SERVICES (WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, THAT WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. NETROUNDS SHALL HAVE NO LIABILITY FOR YOUR FAILURE TO COMPLY WITH SECTION 3.2. This disclaimer and exclusion shall apply even if the express warranty fails of its essential purpose.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You accept it and continues until all Cloud Services provided hereunder have expired or been terminated. If You elect to use the Cloud Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate upon the cessation of the free trial services.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), and 6.4 (Disclaimer) shall survive any termination or expiration of this Agreement.