NetX Customer Agreement

This NetX Customer Agreement (the “Agreement”) is between you and NetXposure, Inc. (“NetX”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” (or “your”) means your company, and you are binding your company to this Agreement. NetX may modify this Agreement from time to time, subject to the terms in Section 25 (Changes to this Agreement) below.

This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by signing an Order or by using or accessing NetX Products.

1. Scope of the Agreement. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes our Privacy Policy, our Acceptable Use Policy, any Orders, and any other referenced policies and attachments.

2. Types of NetX Products. This Agreement governs (a) NetX’s commercially available downloadable software products (currently designated as “On-Premise" deployments) (“Software”), and (b) any related support or maintenance services provided by NetX. Software and related Documentation, are referred to as “Products”. The Products and their permitted use are further described in NetX’s standard documentation (“Documentation”). Section 5 (Software Terms) applies specifically to Software, but unless otherwise specified, other provisions of this Agreement apply to all Products.

3. Orders.

3.1. Directly with NetX. NetX’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (c), asset record capacity (for Software), (d) numbers of licenses, copies or instances (for Software), or (e) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.

3.2. Reseller Orders. This Agreement applies whether you purchase our Products directly from NetX or through NetX authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on NetX’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.

4. Authorized Users.

4.1. Access By Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users, subject to the terms of Section 4.2 (“Designating Customers as Authorized Users”). You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

4.2. Designating Customers as Authorized Users. The purpose of this section is to allow your customers to be Authorized Users, subject to the terms below.

4.2.1. Responsibility for Authorized Users. If you designate any of your customers as Authorized Users, you will be responsible for their use of the Software as you would be for any other Authorized User. Accordingly, you must enter into valid, binding agreements with your customers that require them to comply with the applicable terms of the Agreement (including this supplement), including any conditions or restrictions with respect to use of, or access to, the Software.

4.2.2. Limitation on Software. For the avoidance of doubt, allowing your customers to be Authorized Users does not mean that you may distribute, resell, or OEM any Software, or make the products available to your customers on a standalone basis. Rather, it means only that your customers may access your instance of the Software in order to support their use of your own products and services that are unrelated to the Software (“Your Products”).

4.2.3. Limitation on Fees Charged to Your Customers. You may not charge your customers for any use of the Software itself, but may charge your customers as part of an overall program that includes access to your instance of the Software. An example would be charging your customers for Your Product, where Your Product is a paid support offering that includes, as a secondary component, access to asset files and metadata you provide using your NetX instance.

4.2.4. Limitations on Administrator Functions for Your Customers. As an Authorized User, your customers may interact with the Software but may not receive any administrator, configuration or similar access to the Product. For example, your customers may upload asset files, but you may not permit any of your customers to administer NetX configurations.4.2.5. Limited Liability and Obligation for Your Customers. NetX will not have any direct or indirect liability or obligation to any of your customers. For the avoidance of doubt, your customers are not parties to, or third party beneficiaries under, the Agreement.

4.2.6. Indemnity for Your Customers. You will defend, indemnify and hold harmless NetX from and against any loss, cost, liability or damage, including attorneys’ fees, for which NetX becomes liable arising from or relating to any claim brought against us by your customers arising out of their use of the Software through you.

5. Software Terms.

5.1. Your License Rights. Subject to the terms and conditions of this Agreement, NetX grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order. The Software requires a license key in order to operate, which will be delivered as described in Section 9.1 (Delivery).

5.2. Number of Server Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). “Test” (sometimes referred to as “staging”) licenses are those that mirror the production deployment; these instances are available as long as you maintain a current Software subscription. We also make available “developer” licenses for certain of our Software offerings to allow you to deploy non-production instances, such as for QA purposes. You can request “developer” licenses through our Support Portal website (https://support.netx.net).

5.3. Your Modifications. Subject to the terms and conditions of this Agreement (including without limitation Section 5.4.2 (Combining the Products with Open Source Software): (1) for any elements of the Software provided by NetX in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) you may also modify the Documentation to reflect your permitted modifications of the Software source code or the particular use of the Products within your organization. Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, NetX has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 5.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of NetX at your expense.

5.4 Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software. The Products contain code and libraries that we license from third parties. Some of these licenses require us to flow certain terms down to you.

5.4.1. Open Source Software in the Products. The Products include components subject to the terms and conditions of “open source” software licenses. To the extent applicable, we will identify open source software included in a Product in or through the Product itself. Some of these licenses require us to provide the open source software to you on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using the Products in the form provided to you, in accordance with your permitted Scope of Use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.

5.4.2. Combining the Products with Open Source Software. A requirement of some open source licenses, sometimes known as “copyleft licenses,” is that any modifications to the open source software, or combinations of the open source software with other software (such as by linking), must be made available in source code form under the terms of the copyleft license. Examples of copyleft licenses include the GPL or LGPL, Affero, CPL, CDDL, Eclipse or Mozilla licenses. To the extent you are separately authorized by NetX to combine and distribute Products with any other code, you must make sure that your use does not: (i) impose, or give the appearance of imposing, any condition or obligation on us with respect to our Products (including, without limitation, any obligation to distribute our Products under an open source license); or (ii) grant, or appear to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in our Products. To be clear, you may not combine or otherwise modify our Products unless we expressly give you the right to do so under this Agreement.

5.4.3. Commercial Third Party Code in the Products.

5.4.3.1. Commercial Components. The Products also include components that we license commercially from third parties (“Commercial Components”). For the avoidance of doubt, all of the restrictions for the Products in the Agreement also apply to Commercial Components. Commercial Components are also subject to some additional requirements as set forth below.

5.4.3.2. Limited Use. You may use Commercial Components only in conjunction with, as part of, and through the Products as provided by NetX. You may not install, access, configure or use any Commercial Components (including any APIs, tools, databases or other aspects any Commercial Components) separately or independently of the rest of the Product, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any portions of the Commercial Components, or permit anyone else (including your customers) to do any of these things.

5.4.3.3. Some Commercial Components may include source code that is provided as part of its standard shipment. Commercial Component source code will be governed by the terms for Commercial Components in this supplement and not the provisions in Section 5.3 (“Your Modifications”) of this Agreement. Accordingly, notwithstanding any other terms of the Agreement, you may not modify any Commercial Components. You will be financially responsible to the applicable third party licensor ("Commercial Component Licensor") for all damages and losses resulting from your or your Authorized User’s breach of this Section.

5.4.3.4. Commercial Component Licensor Ownership. You understand that the applicable Commercial Component Licensor retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against you. However, to be clear, Commercial Component Licensors do not assume any of NetX's obligations under the Agreement.

5.5. Subscription Terms and Renewals. Software is provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at support.netx.net. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

6. Personal Data Protection.

6.1 European General Data Protection Regulation (“GDPR”)  Compliance. As part of the provision of the Software, NetX collects personal data of the Customer as well as those of the person who validates the order to make sure the account follow-up is ensured. The collected data are:

1. Company or organization email address
2. Company or organization phone
3. Company or organization name

NetX collects and processes the personal data of the Customer for the following purposes:

Provision of the service.

Management of the order.

Commercial relationship, payment, invoice...

Answer the possible questions/claims of the Customer.

Management of the requests of the rights of access, of rectification and to object.

Management of unpaid invoices and litigation.

Management of the Order, maintenance, etc.

The personal data relating to these persons are stored for the duration of this Agreement and up to ten (10) years after the end of this Agreement and after the last contact with the Customer for sales purposes. The personal data of the person who validated the order are kept for the time provided by law for the conservation of contracts.

The personal data of the persons concerned are processed by the commercial and technical service of NetX as well as by possible subcontractors of NetX. NetX may also communicate the personal data for cooperation with the administrative and judicial authorities’s purposes.

NetX ensures the security of the personal data of the persons concerned in an adequate and appropriate manner, and has taken the necessary precautions in order to preserve the security and confidentiality of the data, and in particular, to prevent them from being distorted, damaged or communicated to unauthorized persons.

The legal basis of the processing carried out by NetX is contractual, formalized by this Agreement which the Customer must accept. The purpose of the processing is the proper performance of this Agreement.

The persons concerned are informed that they may exercise, in accordance with the provisions of Law 78-17 of 6 January 1978 as amended and the GDPR, their right of access, rectification, deletion, to request the limitation of the processing and the portability of their data by contacting NetX at manager@netx.net or by mail addressed to 310 SW Fourth Avenue, Portland, Oregon 97204 (USA), mentioning their full contact details (company name/last name, address, phone, email address and specifying the subject of the request).

The persons at NetX having access to the Customer’s data are under a confidentiality agreement.

In accordance with Article 33 of the GDPR, NetX undertakes to inform the Customer, within a maximum period of seventy-two (72) hours after having become aware of it, of any breach of the security of the Customer’s data where such breach leads, in an accidental or unlawful manner, to the unauthorized access or disclosure, alteration, loss or destruction of Personal Data. It is then up to the Customer to inform (i) the supervisory authority on which it depends, and (ii) the persons concerned when this breach of personal data security is likely to generate a high risk regarding rights and freedoms.

In the event of the occurrence of a breach of security, NetX undertakes (i) to take as soon as possible all appropriate technical corrective measures to put an end to the breach of security identified, in particular in order to make the data incomprehensible to any person not authorized to have access to it and to apply them to the data concerned by this breach of security and (ii) to justify this in writing without delay to the Customer.

The Customer is solely responsible for the lawfulness of the collection and processing and for all the obligations arising from the right of personal data, in particular to inform the persons concerned in accordance with Article 13 of the GDPR and to respect their rights. When sharing a personal database, the Customer undertakes to ensure that the legislation on personal data is respected by itself and by the recipient of the sharing.

7. Support and Maintenance. NetX, and/or Reseller (if applicable) will provide the support and maintenance services for the Products described in the NetX Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the NetX or Reseller (if applicable) Support Policy and will be provided at the support level and during the support term specified in your Order. The NetX Support Policy may be modified by NetX from time to time to reflect process improvements or changing practices. Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.

8. Account Manager and Training Services. NetX or Reseller will provide an Account Manager and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). NetX shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. 

9. Financial Terms.

9.1 Delivery. We will deliver the applicable license keys (in the case of Software) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that NetX has no further delivery obligation with respect to the Software after delivery of the license keys.

9.2. Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 19.1, all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term or Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.

9.3. Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by NetX, you must pay to NetX the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to NetX any such exemption information, and NetX will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

10. No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 11 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes NetX’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.

11. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.

12. Your Development of Add-Ons.

12.1. License to Developer Toolkits. From time to time, NetX may publish SDK’s or API’s and associated guidelines (“Developer Toolkits”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). You may distribute your Add-Ons to third parties, but only for those Products permitted by NetX, and only in accordance with the Developer Toolkits.

12.2. Conditions to Development of Add-Ons. Notwithstanding anything in this Agreement to the contrary, NetX has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section.

13. License Certifications and Audits. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to NetX at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.

14. Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. NetX and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for NetX, including without limitation as they may incorporate Feedback (“NetX Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to NetX, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). NetX may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits NetX's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

15. Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any NetX Technology and any performance information relating to the Products shall be deemed Confidential Information of NetX without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.

16. Term and Termination. This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to NetX, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including NetX Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 9.2 (Payment), 9.3 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12.2 (Conditions to Development of Add-Ons), 13 (License Certifications and Audits), 14 (Ownership and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17.2 (Warranty Disclaimer), 18 (Limitation of Liability), 20 (Third Party Vendor Products), 23 (Dispute Resolution), 24 (Export Restrictions), and 26 (General Provisions).

17. Warranty and Disclaimer.

17.1. Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

17.2. Warranty Disclaimer. NetX warrants that (a) it will perform the Support Services in a professional and competent manner in accordance with industry standards, and (b) the NetX Services will operate substantially as described in the then-current Documentation. NetX will, at its own option and expense, and as its sole liability and Customer’s exclusive remedy for any breach of the warranty under sub-section (a) above, re-perform the Support Services which gave rise to the breach or, at NetX’s option, refund the fees paid by Customer for the Support Services (as applicable) which gave rise to the breach; provided that Customer shall notify NetX in writing of the breach within thirty (30) days following performance of the defective NetX Support Services, specifying the breach in reasonable detail. NetX will, at its own option and expense, and as its sole obligation and Customer’s exclusive remedy for any breach of the warranty under sub-section (b) above, correct any reproducible error that Customer reports to NetX in writing within thirty (30) days following performance of the defective NetX Services, specifying the breach in reasonable detail, or, at NetX’s option, refund the fees paid by Customer for the NetX Services which gave rise to the breach. NETX DOES NOT WARRANT THAT CUSTOMER’S USE OF THE NETX SOFTWARE OR NETX SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR FREE FROM UNAUTHORIZED ACCESS. THE EXPRESS WARRANTIES IN SECTION 17.2 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE NETX SOFTWARE AND NETX SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WHICH ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, CUSTOMER RECOGNIZES THAT NETX DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE NETX SOFTWARE AND NETX SERVICES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND TELECOMMUNICATIONS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. ACCORDINGLY, NETX DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

18. Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 18 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS) OR SECTION 5.4.2 (COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 18 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

19. Indemnity. 

19.1 NetX. NetX will defend at its own expense and indemnify and hold Customer, and its directors, officers, employees, contractors and agents harmless from and against any and all claims, liabilities, losses, damages, judgments, awards, costs (including, without limitation, legal fees and expenses), actions and/or other proceedings made, sustained, incurred, brought or prosecuted in any manner whatsoever relating to or arising from: (A) any infringement by the NetX Software (as incorporated into the NetX Services) of a third party’s U.S. Intellectual Property Rights; and (B) any property damage, personal injury or death to the extent caused by the negligence, willful misconduct, acts or omissions of NetX or by its employees, contractors or agents; provided, however, NetX shall have no indemnity obligations under this sub-section (B) to the extent any such damage, injury or death is caused by the negligence, willful misconduct, acts or omissions of Customer, and its employees, contractors or agents. The foregoing obligations are conditioned on Customer’s (a) notifying NetX promptly in writing of such action, (b) giving NetX sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at NetX’s request and expense, assisting in such defense, providing that a failure or default under clauses (a)-(c) shall not excuse or relieve NetX from any defense or indemnity to the extent NetX’s defense is not materially prejudiced by such failure or default. If the NetX Software or NetX Services become, or in NetX’s opinion are likely to become, the subject of an infringement claim, NetX may, at its option and expense, without limiting the foregoing obligations of NetX, either (i) procure for Customer the right to continue using the NetX Software as necessary for the use of the NetX Services, or (ii) replace or modify the NetX Software so that it become non-infringing; provided, however, if NetX reasonably determines that the remedies under (i) or (ii) are not commercially practicable, NetX may terminate this Agreement upon written notice to Customer and refund Customer the any pre-paid but unused Fees paid for such NetX Software, as applicable. Notwithstanding the foregoing, NetX will have no obligation under this Section 19.1 or otherwise to the extent of any infringement claim is based upon (a) any use of the NetX Software or NetX Services not in accordance with this Agreement and/or the Documentation and/or NetX’s written instructions, or (b) any use of the NetX Software or NetX Services in combination with software or hardware not supplied by NetX (other than the Additional Materials). THIS SECTION 19.1 STATES NETX’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

19.2 Customer. Customer will defend at its own expense and indemnify and hold NetX, and its directors, officers, employees, contractors and agents harmless from and against any and all claims, liabilities, losses, damages, judgments, awards, costs (including, without limitation, legal fees and expenses), actions and/or other proceedings made, sustained, incurred, brought or prosecuted in any manner whatsoever relating to or arising from: (a) any Customer Data (e.g., the ownership thereof) or (b) Customer’s breach of Section 11 (“Restrictions”).

20. Third Party Vendor Products. NetX or third parties may from time to time make available to you third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. NetX does not warrant or support non-NetX products or services, whether or not they are designated by NetX as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with NetX products, you acknowledge that NetX may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the NetX products. NetX shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.

21. Publicity Rights. We may identify you as an NetX customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@netx.net at any time. Please note that it may take us up to 30 days to process your request.

22. Improving Our Products. We are always striving to improve our Products. In order to do so, we need to measure, analyze, and aggregate how users interact with our Products, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our Products as described in our Privacy Policy (https://kb.netx.net/kb/help-and-support/legal/privacy-policy).

23. Dispute Resolution

23.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Portland, OR (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

23.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Oregon, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 23.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Portland, Oregon, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Portland, Oregon, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, NetX may bring a claim for equitable relief in any court with proper jurisdiction.

23.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 23.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

23.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

24. Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

25. Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your NetX account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including canceling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

26.General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to NetX Inc., c/o NetX, 310 SW Fourth Avenue, Suite 1120, Portland, Oregon 97204, Attn: General Counsel. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and NetX relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.

Revision: 2021.11.11.JW