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Terms of Service

This NetActuate Terms of Service (“TOS” or “Agreement”) constitutes a binding agreement between NetActuate Inc., a Delaware corporation, DBA Host Virtual and Tranquil Hosting (altogether, “NetActuate”, “we”, “our”, or “us”), and any person or entity registering as a user and/or electing to purchase, activate, subscribe to, or renew our NetActuate Services through the online portal (Your “NetActuate Account”) or offline or any person or entity with access to Your NetActuate Account (“Customer”, “User”, “You”, or “Your”). By using our services, You agree at all times during Your use to abide by this TOS and any additions or amendments. Please read this Agreement carefully.

We reserve our right to amend or supplement this Agreement at any time, at our discretion. When we do so, we will do our best to provide You with notice. If at any time You do not agree to the terms of this Agreement or any of the terms of any applicable NetActuate Contract (as defined below), please discontinue use of the respective service immediately and close Your NetActuate Account.

Your continued use of Your NetActuate Account, the use of www.netactuate.com (the “Site”, “Our website” or “NetActuate ’s website”), NetActuate Services and any affiliated NetActuate services that redirect or link to this Agreement or incorporates this Agreement by reference, constitute Your agreement to be bound by the terms of this TOS and any other applicable NetActuate contracts and terms, which include the Privacy Policy, the Acceptable Use Policy (“AUP”), the Data Processing Agreement (“DPA”), and the Service Level Agreement (“SLA”), which may be viewed at any time at https://www.netactuate.com/policies in an electronic format that allows them to be printed or downloaded for Your records, and any agreements or addendums which may be entered into between yYou and NetActuate (altogether, the “NetActuate Contracts”).

From time to time, You and NetActuate may execute Orders. All Orders will govern over any inconsistent terms and conditions in this Agreement. For clarification, each Order is a separate and distinct agreement between You and NetActuate, and incorporates all of the terms and conditions of this Agreement.

Terms Updated: May 24, 2018

1. Agreement Definitions

1.1 “Auto Renew” or “Auto Renewal” is the process by which the Service Period of NetActuate Services is automatically extended for additional 1 (one)-year periods, unless otherwise stated on Your Service Order.

1.2 “Fees” or “Charges” means Non-Recurring Charges (NRC), Monthly Recurring Charges (MRC), and all other charges and fees indicated on the Order that the Customer agrees to pay, as set forth in Section 3.

1.3 “Professional Services” means, collectively, consulting and any other professional services, which You may order. Professional Services include any deliverables described in Your order and delivered by NetActuate to You under an Order.

1.4 “Order” means an ordering document, (which may be in the form of a service order form (“SOF”) or a statement of work (“SOW”)), pursuant to which Customer orders NetActuate Services, and incorporates all of the terms and conditions of this Agreement. Each Order will provide detail of Services being ordered from NetActuate and provide the Service Period of commitment. Services will not be available to Customer until Customer executes the Order and NetActuate accepts by executing the Order and provides counter-signed copy of Order.

1.5 “Services” means a collective reference to all services to be provided by NetActuate to Customer pursuant to an Order.

1.6 “Service Period” refers to the term or period of time for which You have committed to purchase and pay for Services as set forth in Your Service Order. Services are non-cancellable during the committed Service Period. Process for termination request of Service Period is set forth in Sections 8.1 and 12. Unless stated otherwise on Your Order and without a termination request, at the end of the initial term, the following are applicable: (a) Your Service Period will auto-renew for additional 1-year (one) terms, and (b) each year thereafter including throughout any renewal terms, monthly fees may be subject to increases as set forth in Section 3.

1.7 “Service Specifications” means the descriptions on www.netactuate.com/policies or such other address specified by NetActuate, that are applicable to the Services under Your order, including any program documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions of Your order.

1.8 “Suspension Period” means the period of time during which You will not be able to access Your NetActuate Services (“Suspension”) associated with Your Order or Your NetActuate Account. During the Suspension Period, terms for which are outlined in Section 8- Termination and Suspension, You will continue to be charged for Services that occupy cabinet space and/or other resources, even while restricted/suspended.

1.9 “Your Representatives” means those employees, contractors, representatives, and/or agents, as applicable, authorized by You or on Your behalf to use and access the NetActuate Services and Site in accordance with this Agreement and Your Order. You are responsible for any and all actions of Your Representatives and their employees, and other persons escorted by and/or doing work on Your behalf.

2. Ordering and Provisioning

2.1 Orders may be signed from time to time for any NetActuate Services that Customer may request. Your Order will set forth NetActuate Services such as Anycast, Colocation, Webhosting, and any other related services, Customer and NetActuate responsibilities which will apply as further described or referenced in the applicable Order, as well as Fees and Service Period.

2.2 Provisioning. Services will be deemed to commence on the Services Commencement Date. Subject to the terms and conditions of this Agreement, during the committed Service Period, NetActuate agrees to provide Services to Customer, and Customer agrees to pay NetActuate for the Services as set forth in Section 3 and in the Order. If Order is not executed and/or we do not receive provisioning information in a commercially reasonable amount of time, and the Agreement is terminated by us, You will continue to be responsible for all non-recurring charges, and any recurring charges accrued and/or invoiced up to and until termination.

3. Taxes, Payments, and Refunds

3.1 Taxes. All charges are exclusive of applicable taxes, duties, tariffs, and similar charges. You will be responsible for and will pay in full the taxes imposed by any taxing authority with respect to the Services, except for tax on NetActuate’s net income.

3.2 Non-Recurring Charges. You must pay any non-recurring charges (NRC) if applicable, such as set up fees, provisioning fees or 1-time charges, as set out on our Order or Your NetActuate Account online. Payment of these non-recurring charges is a pre-requisite to our obligation to provide Services to You.

3.3 Monthly Recurring Charges. You will be invoiced monthly in advance for monthly recurring charges (MRC) as indicated on Your Order, and You must pay MRC according to payment terms as described in Your Order or by the due date indicated on the invoice (“Due Date”). If you have a valid credit card on file, we will bill all charges authorized by this Agreement and MRC to the credit card on file. You may contact us for additional information for other payment methods.

If you have not requested termination of Services, unless stated otherwise on Your Order, at the end of the initial term and each year thereafter when Your Order is in effect, the MRC for Your NetActuate Services will be subject to an annual increase of five percent (5%) over the MRC invoiced during the previous year.

3.4 Additional Charges and Late Payments. We reserve the right to bill You for fees charged to us by our bank and/or credit card processor outside of normal transaction fees. For automated credit card charges, if Your card is declined, the charge will be repeatedly attempted until it clears. If Your check is returned by Your bank, You will be billed any return check fee charged to us plus a $100 special handling & processing fee.

If You do not pay all invoiced charges by the Due Date, Your Account is considered “Past Due”. After 7 (seven) days of Your Account being Past Due, we reserve the right to suspend services, or terminate your account upon notice, and refuse to provide You any further access to Services.

Except for disputed amounts as described in Section 3.7, you may be assessed additional charges on late payments for interest at the rate of 1.5% per month or the maximum rate allowed by law, and a processing fee at our sole discretion, if we incur administrative and/or legal costs associated with Your late payments.

3.5 Refunds. We have calculated our fees based on the Service Period. Accordingly, fees will only be refunded as is expressly set out in this Agreement. Should You be required to make advance payment for certain services performed or pay certain service fees, those fees are not refundable should You choose to terminate the Agreement for any reason.

3.6 Charges for Previously Provided Services. We reserve the right to invoice You retroactively for any services provided to You for which we had not previously billed. This may include charges such as bandwidth overage, installation or special handling of equipment, shipping charges, etc.

3.7 Invoice Disputes. You have up to 25 days from the date of our invoice to initiate a dispute over charges or to receive credits, if applicable. In order to dispute Your invoice, You must send us a written itemized description of the specific items You dispute in Your invoice. This itemization must be in sufficient detail for us to identify the items in dispute. We reserve the right to add $200 special processing fee, for disputes initiated by You, which are resolved in our favor.

 

4. Regulatory and Legal Changes

Notwithstanding anything to the contrary set forth in this Agreement, in the event of any change in applicable law, regulation, decision, rule, or order by any regulatory agency, legislative body or court of competent jurisdiction (“Regulatory Activity”) that materially increases the costs or materially impacts the terms of delivery of Service, NetActuate will provide You with a written proposal describing in detail the change and how the change may affect the functionality and performance of the Services. If the Regulatory Activity will increase NetActuate’s cost of providing Services, then NetActuate reserves the right to modify rates and charges due to Regulatory Activity; provided (i) NetActuate will provide as much prior written notice as practicable, (ii) NetActuate shall be required to exercise commercially reasonable efforts to mitigate the impact of such Regulatory Activity on the provision of the Services and to implement commercially reasonable workarounds that would not require an increase in price to You, and (iii) any increase in costs must be proportionally attributable to the provision of Services, and shall be allocable to You only in respect of the Services actually provided to You and no other customers of NetActuate.

5. Insurance

As long You use NetActuate Services, You shall maintain, at Y our own expense: (a) general liability insurance that provides comprehensive liability coverage, and (b) business loss and interruption insurance in an amount sufficient to compensate You and Your end users for loss of the Services, and any content or data relating thereto. Upon request, You shall provide NetActuate with proof of such coverage and shall furnish a certificate of insurance.

6. Your Obligations

6.1 Your Account. You are solely responsible for maintaining the confidentiality and security of the passwords used by You to access Your NetActuate Account and Your NetActuate Services. You bear sole responsibility for any and all activity that occurs under Your username and password. NetActuate is not be responsible for any loss or damage arising from or otherwise related to Your failure to maintain control over access to Your password or username, whether due to Your own negligence or for any other reason.

6.2 Obligation to Not Disrupt Our Systems. You agree to use Our Services in a manner that does not interfere with or otherwise disrupt services to our other customers or any of our equipment. NetActuate reserves the right to suspend or close the NetActuate Account and associated NetActuate Services, without prior notice (and immediately if necessary), if in our judgment such interference or disruption is determined to exist.

6.3 Security Measures and Actions of Others. You are solely responsible for the security clearance of Representatives to whom You grant access to Your NetActuate Services, and You are fully responsible for their actions. NetActuate shall exercise commercially reasonable efforts to prevent unauthorized access to or disclosure of Your data, which includes any data of Your customers and their end users. However,You take full responsibility for setting up, maintaining and securing Your NetActuate Services. You are responsible for configuring Your NetActuate Services to meet Your needs and objectives, any necessary technical interventions on Your NetActuate Services to ensure proper functioning (including in the case of malfunction or failure), and procuring, installing, maintaining and updating any software necessary to secure or restrict access to part or all of Your NetActuate Services, and implementing security best practices.

6.4 Self-Identification Requirement. By creating Your NetActuate Account, You specifically declare that You have the legal capacity and necessary authorizations required. You must clearly and truthfully identify Yourself to NetActuate to proceed with the creation of a NetActuate Account by provide documentation as reasonably requested by NetActuate and identify account roles, which are required to subscribe to and use our Services.

6.5 Identification for Commercial Purposes. If You are using Your NetActuate Services in connection with commercial purposes (for example, the offering for services via a website hosted via NetActuate’s Services) You must disclose Your identity and reasonably allow third parties to contact You by publicly identifying your name (or business name) and contact information.

7. Intellectual Property and IP Allocation

7.1 Intellectual Property Ownership. Unless otherwise set forth in this Agreement, NetActuate reserves all rights and benefits afforded under federal and international copyright and patent laws in all software programs and documentation developed by NetActuate and licensed to You for use under this Agreement.

7.2 You agree to take no action that might jeopardize our rights in our marks, our licenses, our patents, or appropriate them for Your own use.

7.3 IP Addresses. Assignment of a NetActuate IP (Internet Protocol) address to you, either IPv4 or IPv6, does not constitute transfer of ownership, as the IP address will continue to be owned by NetActuate, licensed to You for use under the terms of this Agreement. We will use our reasonable efforts to ensure that the IP addresses allocated to You remain allocated to You.b. However, NetActuate reserves the right to change IP address allocations for any reason (including, but not limited to upgrades, security provisioning, or other network migration service). If we need to change the IP addresses which You have been allocated, we will use our reasonable best efforts to provide You with advance notice, but we reserve our right to change them without notice too. We reserve the right to evaluate any of Your requests for additional IP address allocations or changing allocations.

7.4 Obligation to Preserve the Reputation of Our IPs and Not to Manipulate Our IP Addresses. If you are assigned any of our IP addresses (IPv4 and/or IPv6), You agree to maintain the reputation of our IP addresses and not to undertake any actions that, by itself, cause our mail servers or any of our IP address or ranges to be placed on any “blacklist” or “black hole list” (i.e. www.spamhaus.org, “XBL,” or “SBL”) or any other mail filtering software systems used by companies on the internet. You agree to notify us immediately if You learn that any of our IP addresses have been placed on any such list. If necessary and a result of Your actions, You agree to take whatever steps are necessary (or fully cooperate with us in taking whatever actions we deem necessary) to remove any of our IP addresses from any such lists immediately.

You are not permitted to modify any configuration that will otherwise conflict with, or disrupt our network services.

7.5 When providing certain Services, NetActuate information may be associated with Your Servers’ IP addresses as Your webhosting provider on webhost lookup/search tools.

8. Termination and Suspension

8.1 Term. Services will be provided during the Service Period as defined in Your Order, unless earlier terminated in accordance with this Agreement. NetActuate Services will Auto Renew for additional 1- year Service Periods or if specified in Your Order, may renew as month-to-month, unless (i) You provide NetActuate with written notice as per Section 12, no later than sixty (60) days prior to the end of the applicable Service Period of Your intention not to renew such NetActuate Services, or (ii) NetActuate provides You with written notice no later than thirty (30) days prior to the end of the applicable Services Period of its intention not to renew such NetActuate Services.

8.2 Suspension or Termination for Breach of this Agreement, an Order or any Other Applicable NetActuate Contracts. In the event that You breach Your obligations set forth in this Agreement, an Order or in any other applicable NetActuate Contracts, depending on the nature or reoccurrence of the breach, in its sole discretion, NetActuate reserves the right to (i) terminate this Agreement, terminate or suspend Your NetActuate Service under an Order, and/or any other associated services immediately where explicitly stated in this Agreement, Order or any other applicable NetActuate Contracts with or without notice; or (ii) terminate Your NetActuate Account, Your NetActuate Service under an Order and/or any other associated services upon giving You notice of the breach (which may involve Suspension of Services) of which you fail to cure the breach within ten (10) calendar days of our notification to You thereof or other time period as set forth in the breach notice. You will not be able to use the Services during the Suspension Period. In event of Suspension, You will continue to be charged into an account deficit for the suspended Services that continue to use resources. In the event of breach, You acknowledge that You will not be entitled to a refund of any kind.

You further acknowledge and agree that NetActuate will not be held responsible or liable for any damages of any kind related to or caused by NetActuate’s termination or suspension of Your NetActuate Account and/or Your NetActuate Service and/or any other associated services.

NetActuate reserves the right to pursue any remedy available to it at law or in equity if You breach this Agreement. Termination or Suspension of Services does not excuse Your obligation to pay any outstanding amounts due in connection with Services already performed or provided.

 

8.3 Suspension or Termination as Required by Law or Regulation. You agree that You will use the Services offered by NetActuate in a manner that is consistent with all applicable local, state, federal or national laws and regulations (altogether, the “Applicable Laws”), regardless of whether or not You are a citizen of the United States and regardless of where You live or store Your data. Customers found in violation of Applicable Laws will have their accounts suspended or terminated with immediate effect, without prior or further notice, and without refund of any fees.

We value our customers’ privacy. It is our policy to cooperate with law enforcement and administrative agencies only upon lawful request or order, or substantial justification. Upon lawful request or order from a court or law enforcement, arbitral body, administrative commission or government administrative agency, we may, without notice to You or Your consent, (i) provide the information requested by such agency to that agency, including Your content hosted on our Services; and/or (ii) suspend or terminate Your NetActuate Account, Your NetActuate Services and any other associated services.

You are responsible for making NetActuate aware of any technical requirements that result from Your regulatory obligations prior to entering into an order governed by this Agreement. NetActuate will cooperate with Your efforts to determine whether use of the standard NetActuate Services offering is consistent with those requirements. Additional fees may apply for NetActuate to modify its Services to assist you with regulatory compliance, such fees to be mutually agreed to between you and NetActuate.

 

8.4 Effect of Termination. If Your Order is terminated by NetActuate pursuant to the Agreement, in addition to and without limitation of any other remedies that may be available to NetActuate at law or in equity, unless otherwise set forth in the Order, Customer shall remain liable for: (i) non-recurring charges (NRC) and other indebtedness owed by Customer to NetActuate, and (ii) MRC and other amounts that would have accrued during the remainder of the Term had there been no termination.

9. Indemnification; Limitation of Liability; Disclaimer of Warranties

9.1 You agree to defend, indemnify and hold NetActuate and each of its respective affiliates, directors, officers, agents (including trustees) and employees harmless from and against any and all claims, obligations, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred by any or all of them arising from or due to any claim, action, dispute or demand made by any third parties (including but not limited to Your customers or licensees) that are related to or arising out of Your use of the any NetActuate service or from Your placement or transmission of any materials or content onto or through NetActuate’s equipment or Facilities. Such liabilities may include, but are not limited to: (a) trademark, trade name, trade dress infringement (including cybersquatting or typo squatting claims) and related claims; (b) false advertising claims, (c) liability claims for products or services, (d) infringement or misappropriation of intellectual property rights, (e) violation of rights of publicity or privacy, defamation, libel, slander obscenity, or child pornography, (f) spamming or any other offensive or harassing or illegal conduct (including but not limited to any violation of our acceptable use policy), or (g) any other damage arising from Your equipment, Your business, or Your use of our services.

9.2 Claims Related to Service Interruptions and Delivery. The SLA contains specific remedies regarding provision and availability of NetActuate Services. For Customer’s claims related to any deficiencies, unavailability and/or interruptions of the Services described in the SLA, Customer’s sole and exclusive remedies are limited to those remedies as specifically set forth in the SLA for the affected Service. The specific limitations set forth in Section 9.3 and 9.4 below shall be valid and enforceable for all Services, regardless of whether such Services are described in the SLA.

9.3 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR IN ANY ORDER, OR UNDER ANY APPLICABLE LEGAL OR EQUITABLE THEORY, NEITHER PARTY OR ITS AFFILIATES, AGENTS, AND/OR CONTRACTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF BUSINESS OPPORTUNITY OR THE COST OF PURCHASING REPLACEMENT SERVICES) TO THE OTHER PARTY OR ANYONE CLAIMING UNDER OR THROUGH SUCH P ARTY.

EXCLUDING SECTION 14.2 (CONFIDENTIALITY) OF THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF NetActuate ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SERVICE OR ORDER, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL MRCs PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER(S) GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

9.4 Warranty. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, (I) ALL NetActuate SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND CUSTOMER’S USE OF THE SERVICES IS SOLELY AT IT’S OWN RISK (II)NetActuate DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, AND THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NetActuate DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION RESIDING ON CUSTOMER’S EQUIPMENT OR TRANSMITTED THROUGH ITS FACILITIES. USE OF ANY INFORMATION OBTAINED VIA SERVICES IS AT CUSTOMER’S OWN RISK. NetActuate SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. CUSTOMER ACKNOWLEDGES THAT DUE TO THE PUBLIC NATURE OF THE INTERNET, THERE IS NO GUARANTEE OF SECURITY OR PRIVACY ON THE INTERNET, AND NetActuate MAKES NO GUARANTEE THAT CUSTOMER’S SYSTEMS OR DATA WILL BE SECURE OR KEPT PRIVATE WITH RESPECT TO THIRD PARTY ACCESS VIA THE INTERNET.

YOU MA Y NOT BE ABLE TO USE LOCATION BASED EMERGENCY PRODUCTS, SUCH AS 911. WE HAVE NO LIABILITY FOR DAMAGES OR INJURIES OF ANY TYPE, THAT YOU, EMPLOYEES, AGENTS OR AFFILIATES SUSTAIN BASED ON THE FACT THAT LOCATION BASED PRODUCTS ARE UNAVAILABLE. YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS BASED ON THIRD-PARTY CLAIMS BASED IN WHOLE OR IN PART ON THEIR INABILITY TO USE A LOCATION BASED SERVICES.

NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

10. Force Majeure

Except for Customer’s payment obligations, neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any delay or failure of performance or equipment due to causes beyond such Party’s reasonable control including but not limited to acts of God, fire, explosion, hurricane, acts or omissions of suppliers, flood or other catastrophe, any law, order or regulations or request of any governmental entity, national emergency, terrorist activities, insurrections, riots, labor disputes, work stoppages or disruptive labor activities, global or natural disasters, or like events.

11. Export

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

12. Notices

12.1 Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with NetActuate or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to:

NetActuate Inc.,
ATTN: Legal
3941 Park Dr #20337,
El Dorado Hills,
CA 95762, USA.

 

12.2 To request a termination of Services in accordance with this Agreement as set forth in Section 8, You must submit a service termination request to NetActuate using the service portal or by email to billing@netactuate.com.

12.3 NetActuate may give notices applicable to NetActuate’s customer base by means of a general notice on the NetActuate portal for the NetActuate Services, and notices specific to You to Your e-mail address on record in NetActuate’s account information.

13. Contractors

NetActuate may permit any independent contractors or other third party, to perform any of NetActuate’s obligations hereunder, provided that NetActuate remains primarily liable for the performance of its obligations (“Contractor”).

14. Miscellaneous Provisions

14.1 No waiver of any provision in this Agreement shall be deemed a further or continuing waiver of such provision or any other provision. If any provision is found to be void, unlawful or unenforceable for any reason, that portion shall be deemed severable from these terms and shall not otherwise affect the validity and enforceability of any remaining provisions.

14.2 Confidentiality. Each party shall employ at least a reasonable degree of care in protecting the other party’s confidential information for a period of three (3) years from the date the disclosing party last discloses such Confidential Information. Confidential information includes (i) all information exchanged between the parties that is marked confidential or proprietary or should reasonably be considered confidential by virtue of the nature of its disclosure or the information contained therein; and (ii) trade secrets, know-how, customer data, business plans, marketing plans, or other information related to the business of each party. Confidential information of a party does not include: (i) information that is publicly known or becomes publicly known through no fault of the party receiving such information, (ii) information that is independently developed by the receiving party without access or reference to the other party’s confidential information, or (iii) information that is provided to the receiving party by a third party without confidentiality restrictions.

When Confidential Information of the disclosing party is no longer required for the receiving party’s performance under the Agreement, or upon the disclosing party’s request, or in any event upon expiration or termination of the Agreement, the receiving party will return all materials in any medium that contain, refer to, or relate to Confidential Information of the disclosing party or, at the disclosing party’s election, destroy them, provided however, that the receiving party may retain a copy of the disclosing party’s Confidential Information for legal archival purposes, which copy shall be maintained in accordance with the provisions of this Agreement. At the disclosing party’s request, the receiving party will certify in writing that it has returned or destroyed all copies of the disclosing party’s Confidential Information in the possession or control of the receiving party’s or any of its affiliates or contractors.

For the avoidance of doubt, NetActuate will not be deemed to have accessed, received or otherwise processed, or to be in the possession of, Your Confidential Information, including any personal data of Your customers, employees, or other third parties, solely by virtue of the fact that You transmit, receive, access, process or store such Confidential Information through its use of the NetActuate Services.

14.3 Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and is authorized on behalf of the respective party.

14.4 Survival. The covenants and agreements contained in this Agreement and other NetActuate Contracts with respect to payment of amounts due, confidentiality, limitation of liability and indemnification shall survive termination of this Agreement, regardless of the reason for termination.

14.5 Limitation on Transferability of Agreement. Neither part may assign this Agreement, in whole or in part, at any time with or without the prior written approval of the other party, provided, however, that no such approval will be required in connection with the assignment or delegation to any subsidiary or entity owned or controlled by such party, or successor entity of party, without regard to the jurisdiction of incorporation of said subsidiary or entity.

Entire Agreement. This Agreement, including all referenced agreements, order and policies, constitutes the entire agreement and understanding between the parties. Notwithstanding any provision in the Agreement to the contrary, the Agreement may be modified solely upon execution in writing by duly authorized representatives of each party. It supersedes all prior contemporaneous negotiations or agreements, whether oral or written, relating to its subject matter. Note, if the terms are in direct conflict with other Agreement terms, the Order(s) will prevail over this Agreement.

All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, or the rights and obligations of Customer or NetActuate with respect Customer’s relationship, shall be governed by, and construed in accordance with, the substantive laws of the State of California, United States of America without regard to conflicts of law principles.

 

IN CASE OF DISPUTE, THE PARTIES IRREVOCABLY SUBMIT TO VENUE AND EXCLUSIVE PERSONAL JURISDICTION IN THE FEDERAL AND STATE COURTS IN LOS ANGELES COUNTY, CALIFORNIA, FOR ANY DISPUTE ARISING OUT OF THIS AGREEMENT, AND WAIVE ALL OBJECTIONS TO JURISDICTION AND VENUE OF SUCH COURTS.