THIS OFFER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS OF PURCHASE EXPRESSLY SET FORTH BELOW UNLESS YOU HAVE A SEPARATE AGREEMENT WITH NETGATE. NETGATE EXPRESSLY REJECTS ANY TERMS OR CONDITIONS THAT MAY HAVE BEEN DISCUSSED OR PROPOSED IN PRIOR NEGOTIATIONS OR COMMUNICATIONS. YOU MAY ONLY ACCEPT THIS OFFER AND ENTER INTO A CONTRACT BY AGREEING TO THE MASTER TERMS AND CONDITIONS OF PURCHASE CONTAINED BELOW. ANY TERMS OR CONDITIONS THAT ARE ADDITIONAL OR DIFFERENT FROM THOSE CONTAINED IN THE MASTER TERMS AND CONDITIONS OF PURCHASE MAY ONLY BECOME PART OF A CONTRACT BY WAY OF A SEPARATE WRITING, SIGNED BY BOTH PARTIES.
1. TERMS AND CONDITIONS OF PURCHASE
1.1. Introduction. The Netgate Master Terms and Conditions of Purchase (the “Netgate Terms”) consist of the terms below, the applicable Hardware Terms, Software Terms, Support Terms, and Service Terms referenced below, and any document incorporated by reference in any of them.
The Netgate Terms become effective at the time(s) described in Section 2 below, and when effective form a legally binding agreement between you and Netgate. In the event of a conflict between the documents that comprise the agreement they will take precedence in the following order: (1) the applicable Hardware Terms, Software Terms, Support Terms, or Service Terms; (2) these general terms, and (3) the quote or order. If you signed an agreement with or submitted a purchase order to Netgate, or signed an agreement with or submitted a purchase order to a distributor or reseller authorized by Netgate, the Netgate Terms shall prevail over the terms in your prior agreement or purchase order in the event of any conflict between those documents.
“Deliverables” means the materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures, and recommendations that Netgate delivers to you as part of Services under a statement of work.
“Hardware” means computer hardware, related devices and other accessories including all embedded components, and including firmware and other embedded software.
“Netgate” means Rubicon Communications LLC d/b/a Netgate, its subsidiaries and affiliates, and their respective officers, directors, employees and agents.
“Products” means Netgate’s Hardware products or Software products, or both.
“Services” means any and all services, support, maintenance, training, education provided by Netgate in any form or manner now existing or hereafter created, other than Support provided pursuant to a Support Plan.
“Software” means any computer or program code created or provided by Netgate in any form or manner now existing or hereafter created, as well as the related media and related user materials, whether printed, online or in other form, including copies of the code and related materials. Software includes but is not limited to firmware and other embedded software, stand-alone software, and any modifications, additions, derivatives or enhancements thereto, that may be leased, licensed or otherwise provided by Netgate in any form or manner now existing or hereafter created in connection with Hardware or Services or as a Deliverable, regardless of platform (e.g., for operation in connection with the cloud, virtual machine, Netgate Hardware, or third party Hardware (“bare metal”).
“Supplemental Terms” refers to the Hardware Terms, Software Terms, Support Terms, and Services Terms, collectively.
“Support” means technical assistance, maintenance and other services provided pursuant to a Support Plan.
“Support Plan” means a subscription to a Netgate-defined plan for technical assistance, maintenance and like services in connection with Netgate’s Products as further defined in the Support Terms.
“Third Party Products” means any products, software, or services that are provided or distributed by a third party, are distributed by Netgate but under the third party’s brand name, or are distributed by Netgate but are provided pursuant to separate legal terms and conditions that are intended to be binding between you and the third party.
“You,” “your” and similar terms refer to the person or entity entering into an agreement with Netgate for provision of Products and/or Services, and to whom or upon which these Terms are applicable.
2. QUOTES & ORDERS
2.1. Quotes. If Netgate provides you a quote, the quoted prices are effective until the expiration date of the quote, but may change due to shortages in materials or resources, increases in the cost of manufacturing, or other factors. Netgate may revise or discontinue Products, Support Plans, or Services or rescind Third Party Product offerings at any time without prior notice. Changes may occur after you place an order but before Netgate ships the Product or performs the Support or Service. As a result, the Products, Support, Services and Third Party Products you receive might display minor differences from those ordered.
2.2. Orders. The Netgate Terms are effective upon the first to occur of: (i) your issuance of a purchase order or “PO” that references the Netgate Terms, or that references a Netgate quote by the quote number, (ii) your acceptance of these terms in writing or by “click through” assent, (iii) your execution of a statement of work that references these Netgate Terms, (iv) your download and use of the Software, (v) issuance of an entitlement email or access code to Software or firmware by Netgate, or (vi) if you purchased through a reseller, your agreement with the reseller that references the Netgate Terms. If you purchased through a reseller or distributor, final prices and terms of sale will be as agreed between you and the reseller or distributor; however, the Netgate Terms apply to your possession and use of Products, Support, Services, and Third Party Products provided by Netgate. Netgate may accept, reject or cancel your order for any reason, and in its sole discretion. Availability of Products, Services, Support Plans, and Third Party Products and their respective offers may vary by location. Netgate is not responsible for pricing, typographical or other errors and reserves the right to cancel any orders arising from such errors. Acceptance of an order is independent and separate from acceptance or rejection of any other order. Each PO will include as applicable (a) the Netgate part number and Product description; (b) the quantity of each Product, Support Plan, or Service to be purchased; (c) routing instructions; (d) the desired shipment date for Hardware or the desired delivery date for Software; (e) a ship to address; (f) a valid email address to be used for the purposes of facilitating delivery and communication of relevant information about the Products, Support and Services, and (g) physical address for invoicing purposes and (h) the Netgate quote or proposal number.
2.3. Your Order May Not Vary Netgate Terms. Any provisions in your order that purport to modify or supplement the Netgate Terms will have no force or effect whatsoever. If you do not wish for your purchases to be subject to the Netgate Terms, then you must contact your Netgate sales representative to discuss your request.
2.4. Third Party Products. If your order includes Third Party Products, Netgate is serving as an order and billing conduit for your convenience. Orders for Third Party Products are subject to availability and are cancellable by Netgate. Third Party Products are provided by the third party and not Netgate. Your purchase and use of such Third Party Products shall be subject to the third party’s terms and conditions in addition to the Netgate Terms. Netgate is not responsible for determining whether any Third Party Product, however used, satisfies the local regulatory requirements of the country to which such Third Party Products are to be delivered or performed.
2.5. Amendments. The Netgate Terms may be modified only by a written amendment that expressly references the applicable order and that is signed by you and Netgate.
3.1. Payments; Payment Terms. Unless Netgate requires pre-payment or unless otherwise stated on the order confirmation or invoice from Netgate, you shall pay amounts due and payable to Netgate within thirty (30) days of the date of the invoice using the payment method agreed upon by Netgate. If credit and credit terms have been agreed to by Netgate, then the credit is provided as of the due date, and any credit charges will be applied as of that date. Netgate is under no obligation to offer, and may revoke, credit or credit terms in its sole discretion. Payment shall be made to the applicable Netgate entity named on the order. In addition to any other remedy available to Netgate for late payment, Netgate may charge interest on overdue amounts at the rate of one and one half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, for each month, or partial month, calculated from the payment due date. You must pay invoiced amounts to the Netgate entity identified in the invoice. Unless otherwise specified in the applicable Netgate quotation or proposal, all payments are to be made in United States Dollars. Netgate may invoice parts of an order separately or together in one invoice. If you purchase a multi-year Software license and related Support Plan, and Netgate or the third party licensor of the software agree to annualize your purchase over the term of the license, you agree to make all annual payments in full and such purchase is non-cancellable over the term of the license. Any assignment of your payment obligations to a third-party financing company must be approved in advance in writing by Netgate, and Netgate’s approval will not excuse you from your obligations under the Netgate Terms. Netgate shall be entitled to all reasonable legal and attorney fees and associated costs of collecting overdue amounts.
3.2. Taxes. Charges are stated exclusive of sales, use, value added, customs charges, duties, gross receipts, and services or other taxes or fees imposed under or by any governmental authority, whether levied against you or Netgate, and associated with your purchase or the payment of any amount by you to Netgate (“Taxes”). Except for Taxes based on or measured by Netgate’s net income, you shall pay, or reimburse Netgate for its payment of all Taxes, freight, and insurance. If you claim an exemption from your obligation to pay Taxes, you must provide Netgate with an appropriate, accurate, and valid tax exemption certificate applicable to your purchase. You must make all payments free and clear without deduction for any present or future taxes imposed by any taxing authority. If you are prohibited by law from making any payment unless such deductions are made or withheld, you must pay an additional amount such that the net amount received by Netgate, after such deduction or withholding, equals the amount that would have been received if the deduction or withholding had not occurred. You must promptly furnish Netgate with a copy of an official tax receipt or other appropriate evidence of any tax imposed on payments, including taxes on any additional amounts paid as required by this Section. You agree to cooperate with Netgate to minimize any applicable taxes, including reasonable notice and cooperation in the case of any audit.
3.4. Payment Disputes. All invoices shall be deemed accurate unless you provide Netgate notice in writing of a material error within ten (10) days following receipt of the invoice. Your notice must describe the grounds for the dispute in reasonable detail. If the dispute described in the notice is reasonable, and you timely pay any undisputed part of the invoice, the due date for the disputed amount will be extended until Netgate determines whether such amount is accurate. If you withhold payment of a disputed amount, and Netgate concludes that such amount is accurate, you shall pay interest as described herein from the due date for such amounts until Netgate’s receipt of those amounts. You may not offset, defer or deduct any invoiced amounts that Netgate determines are not erroneous following the notification process set forth above.
You acknowledge that Netgate is not responsible for the security of your network generally, and that Netgate does not represent or warrant that its Products, Support Plans, Services, Deliverables or Third Party Products meet your particular security requirements. You agree that you are responsible for evaluating and determining if the Products, Support Plans, Services, Deliverables and Third Party Products meet your security requirements, both generally and in light of any regulatory requirements applicable to your business or network. In addition, unless otherwise agreed, you are responsible for the correct installation and setup of the security features and all related requirements, such as correctly configuring security policies, maintenance, and the interoperability of the Products, Support, Services, and Third Party Products with your other network elements. You agree that Netgate has no liability to you whatsoever arising from a security breach unless the breach is due solely to the failure of unmodified Product, Support Plan, Services or Deliverable to conform to the factual statements included in the applicable information provided to you by Netgate.
5. OPEN SOURCE AND FREE PUBLIC SOFTWARE
Netgate Software may consist of or include open source software and/or other public software (“Public Software”). The applicable licenses, any required notices or attribution, and instructions on how to obtain the source code are included with the electronic media on which the Software is provided or on Netgate.com. Notwithstanding anything to the contrary in the Netgate Terms, neither the Netgate Terms nor any order or other written material provided by Netgate is intended to change or restrict the terms of any Public Software license. If there is a conflict between the terms of a Public Software license and the Netgate Terms, the Public Software license controls as to the software covered by the Public Software license. The licenses for Public Software do not control as to the use of Netgate’s name, logo, copyrights, trademarks or service marks. You must contact Netgate for permission to use Netgate’s name, logo, copyrights, trademarks or service marks.
6. GENERAL WARRANTY
You warrant to Netgate that (i) you have the right, power, and authority to enter into the agreement and to fully perform your obligations under the agreement; (ii) you are authorized to bind the licensee or purchaser to the provisions of these Netgate Terms and (iii) the making of the agreement does not violate any agreement existing between you and any third party.
7. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THE HARDWARE TERMS, SOFTWARE TERMS, SUPPORT TERMS OR SERVICES TERMS, THE PRODUCTS, SERVICES, DELIVERABLES, AND THIRD PARTY PRODUCTS ARE PROVIDED AS IS AND NEITHER NETGATE NOR ITS SUPPLIERS OR LICENSORS MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED. NETGATE DISCLAIMS ANY IMPLIED WARRANTIES, SUCH AS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING. SPECIFICALLY, BUT WITHOUT LIMITATION, NEITHER NETGATE NOR ITS SUPPLIERS OR LICENSORS WARRANT THAT THE PRODUCTS, SUPPORT PLANS, SERVICES, DELIVERABLES AND THIRD PARTY PRODUCTS WILL MEET YOUR REQUIREMENTS, WILL OPERATE IN THE COMBINATION WITH OTHER TECHNOLOGIES OR PRODUCTS YOU SELECT, OR THAT THE OPERATION OR USE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. IF ANY WARRANTY CANNOT BE EXCLUDED BY OPERATION OF LAW, THEN SUCH WARRANTY SHALL BE VALID AND EFFECTIVE ONLY FOR A PERIOD OF THIRTY (30) DAYS FROM THE ORDER EFFECTIVE DATE.
8.1. Netgate will defend any valid claim made against you in the United States or European Union by an unaffiliated third party that the Products infringe a valid United States or European Union patent or copyright, or misappropriate a valid trade secret recognized in the United States or the European Union (a “Claim”), and will indemnify you against any final, un-appealable judgment entered by a court of competent jurisdiction in the United States or European Union with respect to the Claim, on the following conditions: (i) you promptly notify Netgate in writing of the Claim, (ii) you provide Netgate sole control over the defense and settlement of the Claim; and (iii) at Netgate’s request and expense, you provide full information and reasonable assistance to Netgate with respect to the Claim. Notwithstanding the foregoing, Netgate shall have no obligation, responsibility or liability with respect to a Claim, including but not limited to a Claim for defense, indemnification, infringement, or misappropriation, arising out of or relating to: (a) technology, products, or specifications that you provide; (b) modification of a Product (except modifications provided by Netgate); (c) use of a Product in a manner not contemplated by the documentation provided by Netgate or its suppliers in connection therewith; (d) your combination of a Product with Third Party Products or your combination of a Product with hardware, software or other materials not provided by Netgate; (e) your failure to use reasonable materials or instructions provided by Netgate which would have rendered a Product non-infringing, (f) your use of Software not currently supported by Netgate or not covered by a then-current Support Plan, (g) your use of Software in violation of the applicable license, (h) any open source or other public software, or (i) claims of any type arising outside of the United States or European Union. In addition, Netgate has no obligation, responsibility or liability under this Section if you were aware of any actual, pending or threatened claims that would be covered by this indemnity obligation as of the order effective date for the Product. Netgate will have the right to select counsel to defend the Claim. You may join in defense of a Claim with counsel of your choice at your expense. Netgate has no obligation to reimburse you for any expenses you may directly incur in connection with the Claim unless Netgate has given its prior written authorization for the expense. If, at any time, any Product becomes, or in the opinion of Netgate may become, the subject of a Claim, Netgate may, at its option and expense: (i) procure for you the right to continue using such Product; (ii) replace or modify the Product; or, in the event that neither (i) or (ii) is reasonably available, (iii) terminate the order with respect to the Product. In the event Netgate terminates the order with respect to the Product, Netgate will issue you a prorated refund as follows: (i) for Hardware, the fee paid by you for the infringing Product discounted on a 3-year depreciation basis, and (ii) for stand-alone Software, a refund for any unused portion of the license fee and associated Support Plan. This Section states Netgate’s entire liability to you, and your exclusive remedy for, any actual or alleged infringement, violation, or misappropriation of any third party intellectual property rights by the Products or your use of the Products. In no event is Netgate obligated to provide any defense or indemnification in connection with any Third Party Product.
8.2. You shall defend, indemnify and hold harmless Netgate, its subsidiaries and affiliates, and their respective officers, directors, employees and agents, from and against any third-party claim or action resulting or arising from: (i) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be used with, or installed or integrated as part of the Products, Support, Services, or Third Party Products; (ii) your violation of Netgate’s intellectual property rights as stated in this Agreement; (iii) any inaccurate representation regarding the existence of an export license or any allegation made against Netgate due to your violation or alleged violation of applicable export laws, regulations, or orders; (iv) your violation of the agreement, or (v) your providing of (or providing access to) Excluded Data (as defined in Section 14.9 below) to Netgate.
8.3. You agree to defend, indemnify and hold harmless Netgate, its subsidiaries and affiliates, and their respective officers, directors, employees and agents, from and against any and all damages, losses, liabilities, judgments, penalties, fines, settlement amounts, fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of attorneys and other professionals) that Netgate may suffer or incur, to the extent arising out of or attributable to, or allegedly arising out of or attributable to: (i) your acts and omissions and claims by third parties of bodily injury (including death) or damage to tangible property (excluding data) to the extent such claims arise from your tortious willful misconduct or gross negligence, and (ii) your breach of your obligations under the agreement, including but not limited to those under section 8.2.
You must use the Products, Support, Services, and Deliverables in accordance with the applicable documentation provided to you by Netgate or its suppliers. Except as expressly permitted in the Netgate Terms or an order, you may not do, or permit any third party to do, any of the following, either directly or through any parent, subsidiary, affiliate, agent, or other third party: (i) use any Software in any form other than its binary, object, or executable form; (ii) modify, adapt, change, enhance or create derivative works based on the Products or Deliverables, (iii) copy, or otherwise reproduce the Products or Deliverables, including any prototypes, software or other tangible objects provided to you, in whole or in part, (iv) decompile, translate, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms, structure, architecture or algorithms of any Product or Deliverable (except to the extent that applicable law or any open source or public license prohibits such restrictions, (v) copy Software; (vi) reduce Software to human-readable form, (vii) use Software in excess of any licensing metric stated in the Netgate Terms or the order; (viii) remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing Software or Deliverables; (ix) use, license, sell, transfer or in any way distribute, sublicense or allow others to use Software or Deliverables that is outside of the scope of the licenses granted in the Netgate Terms and for which you have paid the applicable fees; (x) provide, lease, lend, use, disclose, or divulge the Software, or make the Software available to, or permit Software to be used for timesharing or service bureau purposes, (xi) extract or run any component of Software independently of the Software, (xii) use the Software or any part of the Software with any unpaid “community” version of the Software, or (xiii) take any action that would cause Software or any portion of the Software to be placed in the public domain.
If you need information about Netgate Software for interoperability with other technologies, please contact the Netgate support team using the contact information at www.netgate.com.
10. CONFIDENTIAL INFORMATION
10.1. Confidential Information. The term “Confidential Information” means information disclosed by one party (“Discloser”) to the other party (“Recipient”) that the Recipient knows or has reason to know is regarded as confidential by the Discloser. Confidential Information, includes: (i) the terms and conditions of an order (but not the existence of the order), (ii) trade secrets, proprietary technology, the structure, sequence and organization of the Software, (iii) any serial numbers, access codes, registration keys, entitlement numbers or other access information for the Products, Services, and Third Party Products.
10.2. Exceptions to Definition of Confidential Information. Notwithstanding Section 10.1 above, information is not “Confidential Information” of the Discloser if the Recipient can demonstrate that: (i) the disclosed information at the time of disclosure is part of the public domain; (ii) the disclosed information can be established by pre-existing written evidence to have already been in the possession of Recipient at the time of disclosure by Discloser; or (iii) the disclosed information is received by Recipient from a third party without similar restrictions on disclosure and without breach of this or any other agreement.
10.3. Use, Disclosure. Recipient shall not disclose and shall not use the Discloser’s Confidential Information without Discloser’s prior written consent except in performance of its duties or exercise of its rights under an order or the Netgate Terms. Except as provided by the Netgate Terms, Recipient will only disclose Confidential Information to its employees on a need to know basis and only to those of its employees who have agreed to receive it under terms at least as restrictive as those specified in the Netgate Terms. The obligation to protect Confidential Information shall be satisfied if Recipient utilizes the same care (but no less than reasonable care) over the Confidential Information as Recipient employs to avoid disclosure of Recipient’s own similar confidential information. Recipient will immediately notify Discloser of any unauthorized use or disclosure of the Discloser’s Confidential Information. Recipient agrees to assist Discloser in remedying such unauthorized use or disclosure of the Confidential Information.
10.4. Disclosure in Response to Government Requirement. Recipient may disclose Discloser’s Confidential Information if required to be disclosed under law or legal proceeding by a government agency or by a proper court of competent jurisdiction. Recipient will notify Discloser prior to such disclosure. Recipient will use its best commercially reasonable efforts to minimize the disclosure of such information and will consult with and assist Discloser in obtaining a protective order prior to such disclosure.
10.5. No Implied Restrictions. Netgate may use any general learning, skills, or know-how or any information retained in the unaided memory of a person who had access to Confidential Information for any purpose. Netgate is free to develop products independently, including but not limited to products that compete with your products. Netgate is not obligated to restrict the future work assignments of people who have had access to Confidential Information or to restrict Netgate product development or plans in any way due to such access. Netgate may use any technical information it derives under these Netgate Terms, including but not limited to information received from providing the Support relating to Service Request resolution, troubleshooting, functionality enhancements and fixes.
10.6. Remedies. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that the harmed party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, whether threatened or actual.
You acknowledge that the Products or other technology provided under an order are subject to the provisions of the U.S. Export Administration Regulations and may be subject to export and import regulations in countries outside the U.S. You agree to comply with all such applicable laws and regulations, as required. You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, the Product or technology provided under the order to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which you transact business. You also agree that you will not export or re-export the Products or technology, directly or indirectly, (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; (iii) for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction. You acknowledge that the certain Products or technologies may be classified as “restricted encryption” items under section 740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries. You shall indemnify, defend (with counsel approved in writing in advance by Netgate) and hold Netgate harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of this Section.
12. LIMITATION OF LIABILITY; DISPUTE RESOLUTION
12.1. IN NO EVENT WILL NETGATE WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL NETGATE BE LIABLE FOR THE FOLLOWING, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY: LOSS OF PROFITS OR REVENUE, INCOME, OR SAVINGS; LOST BUSINESS; LOST GOODWILL; LOST OR CORRUPT DATA OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME; THE PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR THE PROCUREMENT OF SUBSTITUTE PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS ARISING OUT OF OR RELATED TO AN ORDER OR THE NETGATE TERMS. IF, AND ONLY TO THE EXTENT THAT, THE LIMITATIONS ON LIABILITY IN SECTION 8.1 ARE DEEMED NOT APPLICABLE BY A COURT OF APPROPRIATE JURISDICTION, THEN IN SUCH EVENT, NETGATE’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO AN ORDER OR THE NETGATE TERMS IS LIMITED TO THE AMOUNTS PAID UNDER THE ORDER GIVING RISE TO THE CLAIM FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE UPON WHICH THE CAUSE OF ACTION AROSE. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR NETGATE’S LICENSING AND/OR SALE OF PRODUCTS, SERVICES OR THIRD PARTY PRODUCTS TO YOU, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
12.2. High Risk Use. Netgate shall have no liability whatsoever for harm arising from any High Risk Use of its Products, Services and Third Party Products. “High Risk Use” means any use of Products, Services, and Third Party Products where the failure of the Products, Services, and Third Party Products might result in death, personal injury or severe physical or environmental damage, such as controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, and weaponry systems.
12.3. Dispute Resolution. In the event of a dispute, claim or cause of action arising out of or relating to the Netgate Terms or the Products, Services or Third Party Products provided to you by Netgate, you and Netgate agree to first attempt to resolve any such dispute, claim or cause of action through negotiation or by utilizing a mediator agreed to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential.
IN THE EVENT THAT NEGOTIATION OR MEDIATION IS UNSUCCESSFUL IN RESOLVING ANY DISPUTE, CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE PRODUCTS, SERVICES, OR THIRD PARTY PRODUCTS PROVIDED TO YOU BY NETGATE, THEN ANY SUCH DISPUTE, CLAIM OR CAUSE OF ACTION SHALL BE RESOLVED BY BINDING ARBITRATION IN AUSTIN, TEXAS, RATHER THAN IN COURT. EACH PARTY HEREBY AGREES TO WAIVE ANY AND ALL RIGHT TO A JURY TRIAL IN FAVOR OF ARBITRATION. THE PARTIES EXPRESSLY AGREE TO THE EXERCISE OF PERSONAL JURISDICTION OVER THEM BY AN ARBITRATION TRIBUNAL IN AUSTIN, TEXAS. The Federal Arbitration Act and federal arbitration law apply with respect to arbitration terms.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE TERMS AND CONDITIONS OF USE AS A COURT WOULD. THE JUDGMENT OF THE ARBITRATOR MAY BE ENFORCED BY THE STATE AND/OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS, OR ANY OTHER COURT HAVING JURISDICTION OVER YOU.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following:
Rubicon Communications LLC
Attn.: Legal Dept.
4616 W Howard Lane Suite 900
Austin, Texas 78728
The arbitration will be conducted by the American Arbitration Association (AAA) under its rules. The AAA’s rules are available at www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights, or to enforce the confidentiality provisions set forth herein.
13. TERM, TERMINATION, SUSPENSION
13.1. Term. The term of each order is as stated in the Hardware Terms, Software Terms, Support Terms, or Services Terms, as applicable. The Netgate Terms will continue for the term stated in the order unless and until such order is terminated. If you purchased directly from Netgate, Netgate may propose to renew the Netgate Terms by sending you an invoice or, subject to prior notification, continuing to perform the Support Plan or Services or make the Software available to you. You may (where permitted by law) agree to renewal of the Netgate Terms by paying the invoice by its due date or by continuing to use the Products, Support Plan, or Services, or Third Party Products. If you purchased through a reseller, the payment terms for renewal for the Support Plan, Services or Software will be as agreed between you and the reseller.
13.2. Termination. Either party may immediately terminate the Netgate Terms, as well as any or all orders, for material breach by the other party if such breach is not cured within thirty (30) days after written notice thereof. Netgate may terminate the Netgate Terms immediately, in whole or in part, as well as any or all orders, including prior to the expiration of the term of a Support Plan, Services engagement, or Software license, if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) you purchased through a reseller and, as applicable, the agreement between you and such reseller expires or is terminated, the agreement between Netgate and such reseller expires or is terminated, or your reseller is delinquent on its payment obligations to Netgate. Further, Netgate may terminate orders for Support Plans and Services immediately if you are acquired by or merge with a competitor of Netgate. Upon termination of the Netgate Terms or one or more orders, all rights and obligations under the Netgate Terms and the terminated orders will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination (e.g., confidentiality, ownership, jurisdiction and venue provisions, etc.). Netgate may terminate the Netgate Terms for convenience by providing thirty (30) days’ prior written notice of such termination, which may be for any reason or no reason at all. Netgate may suspend, terminate, withdraw, or discontinue all or part of a Support Plan, Services or Third Party Products upon receipt of a subpoena or law-enforcement request which requires Netgate to do so, or when Netgate believes, in its sole reasonable judgment, that you are involved in any fraudulent or illegal activities.
13.3. Suspension. Netgate may suspend any Software license, Support Plan, Services, and delivery of any other Products or Third Party Products during any period that you are in breach or violation of the Netgate Terms. Unless Netgate has terminated the order or the Netgate Terms for breach, Netgate may reinstate the respective license, Support Plan, Services or delivery of Products or Third Party Products after you cure the breach or violation that is the basis for the suspension.
14.1. Governing Law; Venue.
14.1.1. The Netgate Terms, and any other order or agreement involving Netgate, are governed by the laws of the State of Texas, and the federal law as applied by the State of Texas, as applicable, excluding any law that would require the application of the law of a different jurisdiction. Exclusive jurisdiction and venue for any disputes, claims or causes of action arising out of or relating to the Netgate Terms, the Products, Services, or relationship between the parties shall be in Austin, Texas.
14.1.2. Any dispute, claim or cause of action arising out of or relating to the Netgate Terms, sale of Products, offering of Services, or anything relating to the relationship between the parties must be brought within one (1) year after the dispute, claim or cause of action arises.
14.1.3. Injunctive Relief. The choice of jurisdiction and venue clauses stated in this Section do not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
14.1.4. Disclaimer. The U.N. Convention on the International Sale of Goods shall not apply to an order of Products or Services. You and Netgate both agree that the Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form (“UCITA”) does not apply to the Netgate Terms, and to the extent that UCITA is applicable, you and Netgate both agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained in UCITA.
14.1.5. Service of Process. You agree that service on you at your address stated in any order or documentation you provide to Netgate constitutes a valid means of service for any proceeding, either in lieu or in addition to service on you via your registered agent.
14.2. Further Assurances. Each party shall execute or cause to be executed such further documents and shall do or cause to be done such further acts and things as may be necessary or desirable to give full effect to the provisions of the order.
14.3. Severability. If any term or other provision of the Netgate Terms is determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of the Netgate Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision shall be modified to the minimum extent necessary in order to comply with the parties’ intentions and purpose of the Netgate Terms as set forth herein. If and to the extent that the invalid, illegal or unenforceable provision cannot be so modified, it shall be severed from the Netgate Terms and there shall be deemed to be substituted a similar term or provision to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law, and the remaining provisions shall be given full force and effect.
14.4. Force Majeure. Except for payment obligations, neither party shall be liable for the performance of its obligations under the Netgate Terms if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of a Force Majeure. Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use reasonable commercial efforts to remedy the situation and remove, so far as is commercially reasonable and as soon as practicable, the cause of its inability to perform or comply, provided, however, that in no event shall Netgate be required to purchase or obtain goods or services from third parties. Each party shall give the other party prompt notice of the cessation of the event of Force Majeure. “Force Majeure” means a cause of any kind not reasonably within the control of a party, including but not limited to acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
14.5. Independent Contractors; Non-exclusive Relationship. The parties are independent contractors, and nothing in the Netgate Terms or an order shall be construed to create a relationship of agency, employment, or partnership between the parties or to allow either party to create or assume any obligation on behalf of the other party. Neither party’s employees, agents, nor consultants shall be considered under any circumstances to be employees of the other party.
14.6. Compliance with Statutes and Regulations. Each party will comply with all applicable Federal, state, local and foreign statutes, rules, regulations and orders, including but not limited to the Foreign Corrupt Practices Act.
14.7. Interpretation of Certain Words. The use of the words “partner” or “partnership” in the Netgate Terms or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “including” means “including, without limitation.” The words “will” and “shall” are words of obligation, not expressions of intent or expectation. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement or the parties upon which these terms are applicable. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. The word “quote” refers any quote, quotation, proposal or like document issued by Netgate; the word “order” refers generally to any document by which you request Netgate Product or Services, including a Purchase Order or “PO,” an online web order form, and a statement of work. Software and documentation provided by Netgate is licensed and not sold; any words of purchase used in the Netgate Terms, an order, or elsewhere refers to a purchase of a license for the Software or documentation. Any requirement in the Netgate Terms that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular shall imply the plural as indicated by the context, and pronouns that are gender specific shall be read to refer to either gender. The Section captions in the Netgate Terms are for convenience only; they are not part of these Netgate Terms and may not be used to interpret these Netgate Terms. References to sections in any of the documents that comprise the Netgate Terms are references to the sections of the documents in which the references appear unless otherwise indicated.
14.8. U.S. Government Restricted Rights. The Software and any accompanying documentation provided under the Netgate Terms and any order incorporate commercial computer software and commercial computer software documentation developed exclusively at private expense, and is in all respects proprietary property belonging solely to Netgate or its licensors. If you are acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The object code and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the object code and/or the accompanying documentation by the U.S. Government or any of its agencies shall be governed solely by the Netgate Terms and shall be prohibited except to the extent expressly permitted by the Netgate Terms. Any technical data provided that is not covered by the above provisions is deemed to be “technical data” and “commercial items” pursuant to DFAR Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 252.227.7015(b).
14.9. Excluded Data. The Products, Support Plans, Services, Deliverable, and Third Party Products are not designed to offer functionality providing security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of your internal policies or practices or by law or regulation (“Excluded Data”). You agrees that you are solely responsible for reviewing and ensuring its data provided to Netgate (or to which Netgate will have access) does not contain Excluded Data.
14.10. Audit & Retention of Records. You must keep accurate and reasonable records regarding your use of the Products and your compliance with the Netgate Terms and the order. On reasonable notice, Netgate shall have the right to audit and inspect your compliance with the Netgate Terms and any order (including all payment terms) during your normal business hours. Netgate may conduct its review by direct inspection of your records and systems on your premises, or by requiring you to provide information certified as true and correct by your chief financial officer, chief accounting officer, or other executive of like authority. You will promptly correct any ongoing item of non-compliance identified as part of a review or audit including but not limited to any underpayments that are discovered. You shall pay interest on any underpayment at the rate of one and one half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, for each month, or partial month, calculated from the date payment was due until the date it is paid. If any underpayment exceeds five percent (5%) of the amount owed over the audited period, then you shall reimburse Netgate for the costs of the audit. You shall retain the applicable records pertaining to its performance obligations for five (5) years after the termination or expiration of any agreement between the parties, or following the last delivery of Products or Services by Netgate to you, whichever is later.
14.11. Notices. All notices must be in writing, in English, and must be delivered by personal delivery, internationally recognized overnight carrier, or facsimile transmission, and shall be deemed given upon personal delivery, three (3) business days after delivery to the international carrier with proof of receipt, or by fax upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the address set forth in Netgate’s quotation or the ordering document or such other address as either party may specify in writing, and in the case of Netgate, with a copy to Rubicon Communications LLC, Attention: Legal, 4616 West Howard Lane, Suite 900, Austin, TX 78756, Fax Number: +1 (512) 646-4034.
14.12. Subcontract; Assignment. Netgate has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any of its rights, duties, obligations or liabilities provided that if it subcontracts its duties in providing Services, Netgate shall remain responsible for the performance of such Services under this Agreement. You may not, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer any order, without Netgate’s prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of Netgate. Netgate or its successors may assign an order, in whole or in part, and any of its rights and obligations hereunder, in its discretion. Without limiting the foregoing, an order will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
14.13. Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder shall not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to an order except by an instrument in writing signed on behalf of each of the parties to such document.
14.14. Reservation of Rights. Nothing contained in an order or other document shall be construed as conferring any rights to you by implication, estoppel or otherwise, under any intellectual property right, other than the rights expressly granted in an order and the Netgate Terms. Netgate is and shall be the sole and exclusive owner of all worldwide rights, titles and interest in and to the Products and Services, including all intellectual property rights therein. Netgate and its third party suppliers and licensors own and retain all worldwide right, title and interest in and to all intellectual property rights, feedback, ideas, reports, data and other information provided by you related to the Products, Support Plans, Services, and Third Party Products, including any pre-release Products provided to you for testing, as well as designs, engineering details, derivative works, improvements, enhancements, and other data and materials pertaining to the Products, Support Plans, Services, and Third Party Products and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Netgate in connection with such or with any and all other products or services developed by Netgate as a result thereof, including the sole right to manufacture any and all such Products, Support Plans, Services, and Third Party Products.
14.15. Translations. The Netgate Terms and each order is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties. All communications and notices to be made or given pursuant to the Netgate Terms and any dispute proceeding related to or arising hereunder, shall be in the English language. In the event of any discrepancy or inconsistency between different language versions of the Netgate Terms and any order (and all associated documents or correspondence concerning the order), the English language version shall prevail.
14.16. Entire Agreement. The Netgate Terms and each order constitutes the entire agreement between the parties with respect to the subject matter of the order and supersedes all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter thereof.
Last updated on February 26, 2019