NETRIS, INC. ENTERPRISE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY USING NETRIS PRODUCTS, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND AND, AS A CONDITION TO YOUR PURCHASE AND USE OF THE NETRIS PRODUCTS, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE AN ENTITY, ORGANIZATION, OR COMPANY, THEN YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON YOUR BEHALF HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF, AND (II) YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DON’T ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE NETRIS PRODUCTS. YOUR PURCHASE AND USE OF THE PRODUCTS, AND NETRIS’ PROVISION OF THE NETRIS PRODUCTS TO YOU, CONSTITUTES AN AGREEMENT BY YOU AND NETRIS TO BE BOUND BY THIS AGREEMENT.

 

This Netris Enterprise Agreement and all terms and conditions incorporated herein by reference (“Agreement”) is between you (the “Client”) and Netris, Inc. (“Netris”) and governs your relationship with Netris and your use of Netris Products, open source software incorporated into the Netris Products, and any subscriptions to Netris Products that you purchase.

 

1. The Mechanics of the Agreement

1.1. Ordering. The Agreement applies to Netris Products that you purchase or use. These might include: Subscriptions, Professional Services, Training Services and other Netris offerings, whether you receive them directly from Netris or from a Netris Business Partner. You may order Netris Products directly from Netris by submitting an Order Form or from a Netris Business Partner using the Business Partner’s ordering procedure. Your Affiliates may purchase Netris Products from Netris under this Agreement by signing an Order Form or other document that references this Agreement, which may include additional terms and conditions.

1.2. Structure. The Agreement consists of three components: (1) this Agreement; (2) the Product Appendices (which may include end user license agreements) applicable to the Netris Products you purchase; and (3) if applicable, all Order Forms. If you order Netris Products from a Business Partner, then any agreement that you enter into with the Business Partner is solely between you and the Business Partner and will not be binding on Netris.

1.3 License. Subject to the terms and conditions of this Agreement, Netris hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Software solely for Company’s internal business purposes.

1.4. Restrictions. Client shall not: a) use the Software for the benefit of any other third party, b) attempt to reverse engineer or decompile the Software, c) create derivative works based on the Software, d) copy, frame or mirror any part of the Software, or e) use the Software to build a competitive product or service.

 

 

2. Term

2.1. Agreement Term. The Agreement begins on the Effective Date and continues until it is terminated as set forth herein.

 

2.2. Services Term. Unless otherwise agreed in writing, the Service that you order will start on the Effective Date and end at the expiration of the Services Term unless sooner terminated according to this Agreement. Subscriptions automatically renew upon the expiration of the Services Term for successive terms of the same duration as the original Services Term, unless either party gives written notice to the other party of its intention not to renew. Notice of non-renewal must be given at least thirty (30) days before the expiration of the applicable Services Term. Any Services that you order must be consumed during the applicable Services Term and any unused Services will expire.

3. Fees and Payment

3.1. Payment of Fees. Unless otherwise set forth in an Order Form, you agree to pay Fees no later than 30 days after the date of Netris’ invoice. Credit is subject to Netris’ approval and Netris may change credit terms. Fees do not include reasonable out-of-pocket expenses, shipping costs, Taxes, or service provider fees (such as payment processor or vendor management) and you agree to pay such amounts or to reimburse Netris for such amounts paid or payable by Netris. You must pay the Fees and expenses without withholding or deduction. If you are required to withhold or deduct any Taxes from the Fees or expenses, then you agree to pay to Netris such additional amount as is necessary to ensure that, after making the withholding or deduction, Netris receives the full amount of all Fees and expenses required to be paid prior to giving effect to any such withholding or deduction. All Fees, expenses and other amounts paid under the Agreement are non-refundable.

3.2. Basis of Fees. Fees are determined by counting the Units associated with the applicable Netris Product. For example, Subscriptions may be priced based on the number of nodes running the Software (including but not limited to switches, SoftGate nodes, and any other systems using the Software). You agree to order and pay for the appropriate type and quantity of Netris Products for the type and quantity of Units you use or deploy. If during the term of the Agreement, the actual number of Units you use or deploy exceeds the number of Units you have ordered and paid for, you must promptly report to Netris or a Business Partner the number of additional Units used or deployed and the date(s) on which they were used or deployed. Netris (or the Business Partner) will invoice you and you agree to pay for the additional Units in accordance with your approved payment terms.

4. Termination

4.1. Termination for Cause. Either party may terminate this Agreement (in whole or with respect to any Order Form or Netris Product obtained from Netris or a Business Partner) by notice to the other party if (a) the other party materially breaches this Agreement, and does not cure the breach within thirty (30) days after written notice (except in the case of a breach of Section 6 in which case no cure period will apply), or (b) 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 that is not dismissed within thirty (30) days of filing. In addition, Netris may, at its option and without limiting its other remedies, suspend (rather than terminate) any Services if you breach the Agreement (including with respect to payment of Fees) until the breach is remedied.

4.2 Effect of Termination; Survival. The termination or suspension of an individual Order Form, Business Partner order or any Netris Products purchased from Netris or a Business Partner will not terminate or suspend any other Order Form, Business Partner order, Netris Product or the remainder of the Agreement unless specified in the notice of termination or suspension. If the Agreement is terminated in whole, all outstanding Order Form(s), Business Partner orders and Services will terminate. If this Agreement, any Order Form or Business Partner order is terminated, you agree to pay for all Fees due and payable and all Units that you used or deployed or that were provided by Netris, in each case, up to the effective date of termination. Sections 4.2, 5, 6 , 7, and 8-12 will survive any expiration or earlier termination of this Agreement.

5. Representations and Warranties

5.1. Netris represents and warrants that (a) it has the authority to enter into this Agreement, (b) the Services will be performed in a professional and workmanlike manner by qualified personnel, (c) to its knowledge, the Software does not, at the time of delivery to you, include malicious mechanisms or code for the purpose of damaging or corrupting the Software and (d) the Services will comply in all material respects with laws applicable to Netris in its performance of its obligations under this Agreement. Client represents and warrants that (a) it has the authority to enter into this Agreement, and (b) its use of Netris Products will comply with all applicable laws, and it will not use the Netris Products for any illegal activity or for any unauthorized purpose.

 

5.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE NETRIS PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, AND NETRIS DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE. NETRIS AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE NETRIS PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS, OR THAT NETRIS WILL CORRECT ALL ERRORS. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN SECTION 5.1, YOUR SOLE AND EXCLUSIVE REMEDY, AND NETRIS’ SOLE AND EXCLUSIVE OBLIGATION, WILL BE THE RE-PERFORMANCE OF SERVICES OR CORRECTION, REDELIVERY, OR MODIFICATION OF THE DEFICIENT NETRIS PRODUCT TO BRING THEM INTO COMPLIANCE WITH THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, OR IF NETRIS CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THIS AGREEMENT, IN WHICH CASE YOU MAY RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT NETRIS PRODUCT AS OF THE EFFECTIVE DATE OF TERMINATION.

 

5.3. The Netris Products have not been tested in all situations under which they may be used. Netris will not be liable for the results obtained through use of the Netris Products and you are solely responsible for determining appropriate uses for the Netris Products and for all results of such use. In particular, Netris Products are not specifically designed, manufactured or intended for use in (a) the design, planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft control, navigation, or communication systems (c) weapons systems, (d) direct life support systems (e) or other similar hazardous environments.

  

6. Confidentiality

6.1. Recipient (a) may not disclose Confidential Information of a Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 6; (b) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (c) may disclose Confidential Information of the Discloser only to its employees, Affiliates, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or other professional obligation) to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 6. Each party’s confidentiality obligations will continue for a period of two (2) years following initial disclosure of the particular Confidential Information (except that, as to any information that is identified as a trade secret under applicable law, each party’s obligations shall survive for so long as such information remains a trade secret). A Recipient may disclose Confidential Information if it is required to do so by applicable law, regulation or court order but, where legally permissible, will promptly provide advance notice to the Discloser to enable the Discloser to seek a protective order or confidential treatment of the Confidential Information to be disclosed if feasible. For purposes of this Agreement, “Recipient” is the party receiving Confidential Information under this Agreement and “Discloser” is a party disclosing Confidential Information under this Agreement.

 

6.2. Information is not Confidential Information, if: (a) the information is or becomes publicly available other than as a result of the Recipient’s breach of this Agreement, (b) the Recipient, at the time of disclosure, rightfully knows or possesses the information without an obligation of confidentiality or thereafter rightfully obtains the information from a third party not under an obligation of confidentiality; (c) the Recipient independently develops the information without use of the Discloser’s Confidential Information, or (d) the information is licensed under an Open Source License (as defined by the Open Source Initiative (https://opensource.org/)).

 

6.3. Confidential Information that is disclosed prior to termination of this Agreement will remain subject to this Agreement for the period set forth above. Upon written request of the Discloser or upon expiration or earlier termination of this Agreement, the Recipient will promptly return or destroy all Confidential Information, except for Confidential Information stored in routine back-up media not accessible by its personnel during the ordinary course of business.

 

7. Client Information, Logo, Feedback, Reservation of Rights, and Review

7.1. Client Information. If you provide Client Information in connection with your use of or access to Netris Products, you agree that, subject to Section 6, Netris, its Affiliates, and Suppliers may use such Client Information in connection with providing the Netris Products, improving the Netris Products, and developing new Netris products and services. You represent and warrant that your provision (and Netris’ use) of Client Information under this Agreement does not require any additional consents or licenses, will be in compliance with applicable law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. As between Netris and you, you retain all other rights in and to Client Information.

 

7.2. Use of Name and Logo. Unless otherwise agreed by Customer in writing, Netris may use Customer’s name and/or logo in connection with promotional materials that Netris may disseminate to the public. The promotional materials may include, but are not limited to internet website, E-Mail marketing, and social media. Netris agrees not to use Customer’s name and logo for purposes different than those covered by the Agreement, unless otherwise agreed by the Parties.

7.3. Feedback. You may be asked to voluntarily provide Netris with Feedback in connection with Netris Products, but you have no obligation to do so. If you choose to do so, Netris may use Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve Netris Products and other Netris offerings without attribution or compensation. You hereby grant Netris a perpetual, fully paid up, royalty-free, sublicensable, transferable, worldwide, and irrevocable license to use all Feedback for any purpose. You agree to provide Feedback to Netris only in compliance with applicable laws and you represent and warrant that you have the authority to provide the Feedback and that Feedback will not include proprietary information of a third party.

 

7.4. Reservation of Rights. Netris grants to you only those rights expressly granted in the Agreement with respect to the Netris Products and reserves all other rights in and to the Netris Products (including all intellectual property rights relating thereto). Netris may collect and use for any purpose aggregate anonymous benchmark data about your use of the Netris Products. Nothing in this Agreement will limit Netris from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to you. The terms of Section 6 will not prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.

 

8. Limitations

8.1. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETRIS, NOR ITS AFFILIATES, WILL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF NETRIS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8.2. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETRIS’ AND ITS AFFILIATES’ TOTAL AND AGGREGATE LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY YOU TO NETRIS WITH RESPECT TO THE PARTICULAR NETRIS PRODUCT GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. THESE LIMITATIONS DO NOT LIMIT CLAIMS OF BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE GROSS NEGLIGENCE OF NETRIS OR ITS AFFILIATES.

 

9. Indemnification.

9.1 From Client.  Client shall indemnify, defend and hold harmless Netris and its officers and employees, agents, representatives, shareholders, officers, directors, successors and assigns (collectively, the “Netris Indemnitees”), from and against any claims, damages, liabilities, losses, costs, settlements, penalties, fines and expenses (including reasonable attorney’s fees and expert fees) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim, investigation or demand brought or asserted by a third-party or user (other than a Netris Indemnitee) against any Netris Indemnitee(s) arising from or concerning: (a) any misuse of the Services by Client, its users, or any person who gains access as a result of Client’s breach of the Agreement; (b) any acts or omissions connected to Client’s breach of Sections 1.3 or 6; (c) any allegations that any Client-provided material, or the combination of Client-provided material with software, data or processes that are not provided by Netris, including in any manner that allegedly infringes upon or misappropriates any third-party rights, or (d) any claims resulting from a data security incident on Client’s IT system.  

9.2 From Netris.  Netris shall indemnify, defend and hold harmless Client and its officers and employees, agents, representatives, shareholders, officers, directors, successors and assigns (collectively, the “Client Indemnitees”), from and against any claims, damages, liabilities, losses, costs, settlements, penalties, fines and expenses (including reasonable attorney’s fees and expert fees) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim, investigation or demand brought or asserted by a third-party (other than a Client Indemnitee or user) against any Client Indemnitee(s) arising from or concerning: (a) any allegations that the deliverables, or Professional Services, as delivered to Client, without modification by Client, or Client’s use of the foregoing as permitted pursuant to this Agreement, infringes upon or misappropriates any third-party rights; or (b) any acts or omissions connected to Netris’ breach of Section 6.1.  Notwithstanding anything to the contrary herein, Netris will have no liability under this section to Client to the extent any alleged infringement or misappropriation is based upon (i) use of the deliverables in connection or in combination with equipment, devices or software not delivered by or on behalf of Netris or deliverables which have been modified by parties other than Netris or its licensors, subcontractors, service providers or suppliers, (ii) use of the Services in breach of this Agreement, or (iii) Client’s failure to timely implement any modifications, upgrades, patches, fixes, replacements or enhancements made available to Client by Netris, free of charge.

9.3 Indemnification Procedure.  The following terms apply to the indemnification obligations set forth above: (a) defense counsel shall be selected by the indemnifying party; (b) the indemnified party shall have the right to approve any settlement, which approval will not be unreasonably withheld; (c) the indemnifying party shall comply with the reasonable requests of any of the indemnified party’s indemnitees; and (d) the indemnifying party shall pay all fees and expenses as they are incurred.  The indemnified party shall promptly notify the indemnifying party of the existence of any basis for indemnification.  

10. Governing Law and Claims.  The Agreement, and any claim, controversy or dispute related to the Agreement, are governed by and construed in accordance with the laws of the State of California without giving effect to any conflicts of laws provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of California. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of Santa Clara County, California, and each party irrevocably submits to, and waives any objection against and will not contest, the exclusive personal jurisdiction and venue of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
    

11. Miscellaneous

11.1 Export. Netris may supply you with Controlled Materials. You agree to comply with all applicable export and import laws or regulations, including any local laws in your jurisdiction concerning your right to import, export or use Controlled Materials and agree that Netris is not responsible for your compliance. Without limiting the foregoing, you agree that you will not export, disclose, reexport or transfer the Controlled Materials, directly or indirectly, to: (a) any U.S. embargoed destination; (b) any party who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, unmanned air vehicle systems, or any other restricted end-use; or (c) anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You will not provide to Netris any data or engage Netris in any activity, in each case, that could constitute the development of a “defense article” or provision of a “defense service” to you, as these terms are defined in Section 120 of the International Traffic in Arms Regulations (ITAR). In addition, you will not, and will not allow third parties under your control, (i) to provide Netris with Client Information that requires an export license under applicable export control laws or (ii) to process or store any Client Information that is subject to the ITAR. If you breach (or Netris believes you have breached) this paragraph or the export provisions of the EULA or Netris is prohibited by law or otherwise restricted from providing Netris Products to you, Netris may terminate this Agreement and/or the applicable Order Form without liability to you. You (i) acknowledge that to provide the Services, it may be necessary for Client Information to be transferred between Netris, its Affiliates, Business Partners, vendors and/or subcontractors, which may be located worldwide, and (ii) agree that any such transferring of Client Information is a permitted use of such Client Information.

11.2 Notices. Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the address(es) or email address provided by you, including through an automated receipt or by electronic log. Any notice from you to Netris must include a copy sent to: Netris, Inc., Attention: Legal Department, 4701 Patrick Henry Drive, Building #25, Santa Clara, CA 95054 US; Email: [email protected]. Billing notices to you will be addressed to the billing contact designated by you.

 

11.3. Assignment. Either party may upon written notice: (a) assign this Agreement to an Affiliate if the Affiliate’s financial condition and creditworthiness are sufficient to satisfy the assigning party’s obligations under the Agreement and the assignment will not affect the non-assigning party’s obligations under the Agreement; and (b) assign this Agreement to a successor or acquirer pursuant to a merger or sale of all or substantially all of such party’s assets; provided that you may not assign this Agreement to any entity that competes (directly or indirectly) with Netris. Any other assignment will be deemed void and ineffective without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.

11.4. Waiver. A waiver by a party under this Agreement is only valid if in writing and signed by an authorized representative of such party. A delay or failure of a party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights.

11.5. Independent Contractors. The parties are independent contractors and nothing in this Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel. Netris may subcontract Services to third parties or Affiliates as long as (a) subcontractors agree to protect Confidential Information and (b) Netris remains responsible to you for performance of its obligations.

11.6. Third Party Beneficiaries. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.

11.7. Force Majeure. Neither party is responsible for nonperformance or delay in performance of its obligations (other than payment of Fees or its performance of its confidentiality obligations) due to causes beyond its reasonable control.

11.8. Complete Agreement and Order of Precedence. The Agreement represents the complete agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter. Any terms contained in any other documentation that you deliver to Netris, including any purchase order or other order-related document (other than an Order Form), are void and will not become part of the Agreement or otherwise bind the parties. If there is a conflict between the General Terms, the Product Appendices and/or an Order Form, the General Terms will control unless otherwise expressly provided in the Product Appendices and/or Order Form. 

11.9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to the Agreement.

11.10 Severable. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in effect to the greatest extent permitted by law.

11.11 United States Government End Users. The Software and its documentation are “Commercial items,” “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Software and its documentation subject to the terms of this Agreement.

 

12. Definitions

12.1. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

12.2. “Business Partner” means a cloud provider, distributor, reseller, OEM or other third party authorized to resell or distribute Netris Products.

12.3. “Business Partner order” means an order for a Netris Product placed through a Business Partner.

12.4. “Client” or “you” means the person or entity acquiring the right to use or access the Netris Products and which is a party to this Agreement.

12.5. “Client Information” means any data, information, software or other materials that you provide to Netris under the Agreement.

12.6. “Confidential Information” means information disclosed by the Discloser to the Recipient during the term of the Agreement that (i) is marked confidential; (ii) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (iii) is of a nature that the Recipient knows is confidential to the Discloser or should reasonably be expected to know is confidential.

12.7. “Controlled Materials” mean software or technical information that is subject to the United States Export Administration Regulation.

12.8. “Effective Date” means earliest of (a) the date of the last signature on this Agreement or an Order Form, (b) your online acceptance of the Agreement, and (c) when you first receive access to a Netris Product.

12.9. “EULA” means Netris’ standard end user license agreement governing the use of a Netris Product.

12.10. “Fees” are the amounts to be paid by Client to Netris (directly or through a Business Partner) for the Netris Products.

12.11. “General Terms” means the terms contained in Sections 1 – 11 of this document.

12.12. “Order Form” is Netris’ standard ordering document or online purchasing form used to order Netris Products.

12.13. “Netris Products” means Software, Services, Subscriptions and other Netris branded offerings made available by Netris.

12.14.  “Product Appendices” means the Netris End User License Agreement or (b) for Professional Services, that are incorporated into an applicable statement of work.

12.15. “Professional Services” means consulting services provided by Netris.

12.16.  “Service(s)” means Netris branded services offered as Subscriptions, Professional Services, Training Services or other services offered by Netris.

12.17. “Services Term” means the period during which you are entitled by Netris to use, receive access or consume a particular Netris Product pursuant to an Order Form or Business Partner order.

12.18. “Software” means Netris branded software that is included in Netris Product offerings.

12.19. “Subscription” means a time bound Netris Services offering, other than Professional Services or Training Services.

12.20. “Supplier” means a third party that provides service(s) to Netris in order for Netris to offer Services to its customers and/or Business Partners.

12.21. “Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any Netris Products, other than taxes based on the net income of Netris.

12.22. “Training Services” means access to Netris training courses, including online courses or courses provided at a site as may be agreed by the parties.

12.23. “Unit” means the basis upon which Fees are determined for Netris Products as set forth in Product Appendices or an Order Form.

12.24. “Your Products” means the Netris Products that you have purchased, licensed, or otherwise acquired the right to access or use.

 

NETRIS PROFESSIONAL SERVICES ADDENDUM

 

1. Limitations. This Professional Services Addendum will only apply where Client is purchasing Netris Professional Services.

 

2. Performance of Services. Netris will provide Client with Professional Services as specifically set forth in Statements of Work agreed to in writing and signed by the parties (each, a “Statement of Work” or “SOW”). Upon the execution of a Statement of Work by the parties, it shall automatically be deemed part of the Agreement.

 

3. Term. Unless otherwise agreed by the parties, Netris will make the Professional Services available to Client for a period of 12 months from the date of purchase. Professional Services not delivered within this term will be considered forfeited and will not be refunded to you.

 

4. Client Responsibilities.Client will meet the following requirements in accordance with any agreed or requested time scales:

4.1. Assign a person designated to be a primary point of contact to work with Netris.

4.2. Provide timely access to accurate and complete information reasonably requested by Netris and relevant to delivery of the Professional Services.

 

4.3. Provide timely and unrestricted access to relevant client environments and infrastructure as reasonably requested by Netris and relevant to delivery of the Professional Services.

4.4. Communicate in writing expectations and/or objectives of the Professional Services to be agreed with Netris.

4.5. Communicate in writing any proposed changes to the scope of the Agreement.

Netris will not be liable for a failure to provide Professional Services as a result of a failure in the delivery of a related dependency. Client acknowledges that success of the project is dependent upon meeting the requirements described in this section. In the event that Client does not meet a requirement set out or referred to in this Agreement, Netris will be entitled to equitable adjustments to the Professional Services, and/or Fees as described in the agreement, including charging Client on a time and materials basis for time spent waiting.

 

5. Professional Services Statement of Work Changes.If Client desires to modify the Professional Services performed under any Statement of Work, Client shall provide written notice thereof to Netris, which notice shall include a description of the requested modification to the Professional Services. Promptly following Netris’ receipt of Client’s written notice, Netris shall submit a written change order proposal to Client. Such change order proposal shall include an estimate of additional charges for the modified Professional Services, if any, any expected impact the change will have on the scheduled date(s) for delivery or completion of such Professional Services, and any other information necessary for a complete description of the desired changes. On Client’s written approval of the changer order proposal, the change order proposal will become a part of the relevant Statement of Work and will be deemed to amend such Statement of Work upon execution of such change order. No change to any Statement of Work shall be binding upon the parties unless the change is embodied in a writing that has been signed by an authorized representative of each party. 

 

6. Netris Personnel. The Netris personnel assigned to perform the Professional Services shall have appropriate technical and professional skills to enable them to perform their duties in a professional manner, consistent with generally accepted industry standards. Client will promptly notify Netris of any Netris personnel that Client believes are performing in an unsatisfactory manner. Netris shall cooperate with Client in removing any Netris personnel who perform the Professional Services in an unsatisfactory manner and will use commercially reasonable efforts to replace such unsatisfactory personnel with an acceptable substitute(s).

 

7. Independent Contractor. While at Client’s facilities, all Netris personnel shall observe and follow Client’s reasonable work rules, policies and standards, as communicated to Netris in advance in writing. Netris shall be solely responsible for (i) the payment of all wages, salaries, overtime pay, and other compensation due to Netris Personnel, (ii) the payment for and the provision of all benefits and workers’ compensation insurance in accordance with Netris’ corporate policies, (iii) the withholding of all employment related taxes for such employees and the payment, as applicable, of all employment related taxes and Workers’ Compensation Insurance. No Netris personnel shall be entitled to participate in, or receive any benefit or rights as an employee of any Client entity under any of the Client employee benefit and welfare plans, including, without limitation, employee insurance, pension, savings and security plans, as a result of or in connection with this agreement.

 

8. Customer Facilities. If required to perform the Professional Services, Netris personnel shall be provided a safe and adequate workspace at Client’s offices. The Client shall provide all such facilities, supplies, and services as Netris determines are reasonably required for the performance of the Netris personnel’s duties under this Agreement, including sufficient network access to allow for internet and intranet access as required from the Netris personnel’s laptop or other personal computing devices.

 

9. Remote Work; Multiple Personnel; Work Schedule. At Netris’ discretion, the Professional Services may be delivered onsite, remotely, or as a mix of onsite and remote delivered, using multiple personnel, or as the parties agree in an applicable Statement of Work. Netris Personnel will deliver Professional Services on a forty hour per week basis, Monday through Friday, between the hours of 8:00 am and 7:00 pm (“Regular Work Hours”). A timezone for delivery shall be mutually agreed by the parties and defined in the Statement of Work. Professional Services delivered outside of Regular Work Hours, or on holidays will be charged at two hundred percent (200%) of any agreed rates. Netris company holidays for personnel rendering services are: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day. Holidays for Netris personnel delivering Professional Services outside of the United States shall be specified in the applicable Statement of Work. 

 

10. Deliverables. Professional Services are provided on a time and materials basis with no deliverables except those specified in an executed Statement of Work. Projects are deemed complete and accepted when the Professional Services are rendered by Netris. Client’s payment of an invoice constitutes acceptance of the Professional Services invoiced.

 

11. Expenses.

11.1. Payment of Actual Expenses. Any travel or other expenses associated with performing Professional Services under an executed Statement of Work will be billed to the Client at actual cost and Netris will provide supporting documentation for such expenses unless otherwise agreed to in writing in the applicable Statement of Work. Client will be responsible for any change or cancellation fees incurred in the event that Client requests to reschedule the performance of the Professional Services or does not meet the requirements described in the Customer Facilities section. 

11.2. Prepaid Flat Rate Expenses. Alternatively, Client may choose to prepay travel or other expenses at a flat rate by ordering prepaid travel and expenses with Professional Services in an Order Form. Should Client prepay expenses at a flat rate, supporting documentation for expenses will not be provided, and travel expenses are non-refundable.

 

 

NETRIS TRAINING SERVICES ADDENDUM

 

12. Limitations.This Training Services Addendum will only apply where Client is purchasing Netris Training Services.

 

13. Netris Training Services.Netris will provide Client with Training Services as specifically set forth in a training syllabus or other reference outline. “Participant” means a Client designee who is receiving the Training Services. Netris will provide Client and Participants with Training Services as specifically set forth in an Order Form executed by the parties.

 

14. Term. Unless otherwise agreed by the parties, Training Services will be made available for a period of 12 months from the date of purchase. Training Services not delivered within this term will be considered forfeited and will not be refunded to you. 

 

15. Netris Personnel.The Netris personnel assigned to perform the Training Services shall have appropriate technical and professional skills to enable them to perform their duties in a professional manner, consistent with generally accepted industry standards. Client will promptly notify Netris of any Netris personnel that Client believes are performing in an unsatisfactory manner. Netris shall cooperate with Client in removing any Netris personnel who perform the Training Services in an unsatisfactory manner and will use commercially reasonable efforts to replace such unsatisfactory personnel with an acceptable substitute(s).

 

16. Independent Contractor. While at Client’s facilities, all Netris personnel shall observe and follow Client’s reasonable work rules, policies and standards, as communicated to Netris in advance in writing. Netris shall be solely responsible for (i) the payment of all wages, salaries, overtime pay, and other compensation due to Netris Personnel, (ii) the payment for and the provision of all benefits and workers compensation insurance in accordance with Netris’ corporate policies, (iii) the withholding of all employment related taxes for such employees and the payment, as applicable, of all employment related taxes and Workers Compensation Insurance. No Netris personnel shall be entitled to participate in, or receive any benefit or rights as an employee of any Client entity under any of the Client employee benefit and welfare plans, including, without limitation, employee insurance, pension, savings and security plans, as a result of or in connection with this agreement.

 

17. Customer Facilities.If required to perform the Training Services, Netris personnel shall be provided a safe and adequate workspace at Client’s offices. The Client shall provide all such facilities, supplies, and services as Netris determines are reasonably required for the performance of the Netris personnel’s duties under this Agreement, including sufficient network access to allow for internet and intranet access as required from the Netris personnel’s laptop or other personal computing devices.

 

18. Remote Work; Multiple Personnel; Work Schedule.At Netris’ discretion, the Training Services may be delivered onsite, remotely, or as a mix of onsite and remote delivered, using multiple personnel, or as the parties agree in an applicable Statement of Work. Netris Personnel will deliver Training Services on a forty hour per week basis, Monday through Friday, between the hours of 8:00 am and 7:00 pm (“Regular Work Hours”). A timezone for delivery shall be mutually agreed by the parties. Training Services delivered outside of Regular Work Hours, or on holidays will be charged at two hundred percent (200%) of any agreed rates. Netris company holidays for personnel rendering services are: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day. Holidays for Netris personnel delivering Training Services outside of the United States shall be specified in the applicable Statement of Work.

 

19. Deliverables. Training Services are provided with no deliverables. Training Services are considered complete and accepted when the Training Services have been rendered by Netris. Client’s payment of an invoice constitutes acceptance of the Training Services invoiced.

 

20. Training Materials. Following conclusion of the delivery of Training Services and at Client’s request, Netris will provide to Client a copy of any prepared material used in delivery of the training; the intellectual property rights relating to such materials are the sole and exclusive property of Netris, is not work product of the engagement, and is considered Confidential Information under the Agreement. Notwithstanding the foregoing, Netris grants Client a limited, non-exclusive, worldwide license, with no right to updates or modifications to such materials, to copy and distribute the materials solely among Client personnel who need the training materials solely for Client’s internal business purposes.

 

21. Expenses.

21.1. Payment of Actual Expenses. Any travel or other expenses associated with performing Training Services under an executed Statement of Work will be billed to the Client at actual cost and Netris will provide supporting documentation for such expenses unless otherwise agreed to in writing in the applicable Statement of Work. Client will be responsible for any change or cancellation fees incurred in the event that Client requests to reschedule the performance of the Training Services or does not meet the requirements described in the Customer Facilities section.

21.2. Prepaid Flat Rate Expenses. Alternatively, Client may choose to prepay travel or other expenses at a flat rate by ordering prepaid travel and expenses with Training Services in an Order Form. Should Client prepay expenses at a flat rate, supporting documentation for expenses will not be provided, and travel expenses are non-refundable.