These Services Terms are part of the Netgate Terms and together with the other Netgate Terms govern your purchase and use of Netgate’s Services. These Services Terms below cover all services provided by Netgate that not covered by other terms. For example, these Services Terms cover services to repair or replace Products that are out of warranty and not covered by a Support Plan; recertification of Products for which a Support Plan has lapsed; installation, implementation, configuration, consulting and other assistance in the use of the Netgate Products. For clarity, these Services Terms do not cover warranty services provided pursuant to a Product warranty (see the Warranty pages on netgate.com and the applicable Product terms) or Support provided pursuant to a Support Plan (see the Support pages on netgate.com and the Support Terms).
1. Services. Additional terms and conditions may apply to the following services:
Netgate Subscription-Based Product Support
Netgate Professional Services and Consulting
Netgate Implementation and Migration Services
Netgate Training and Education
In addition, Netgate may include Services as part of certain Product offerings and may include the terms for those Services in the terms applicable to the offering.
2. Services Terms. Netgate will provide the Services described in an order, or otherwise agreed between you and Netgate, subject to the Netgate Terms. Netgate may perform Services remotely from its offices, or other location, unless the applicable order expressly states that the Services are to be performed onsite at a stated location (“Onsite”). Unless specifically stated otherwise in the applicable order, Netgates has no obligation to perform background checks or drug screening of its personnel assigned to perform Onsite Services. Netgate has no obligation to perform Services outside of its normal business hours unless expressly agreed in writing. Netgate may charge a higher rate for hourly services performed outside of regular business hours.
3. Services Warranty. Netgate warrants for the applicable warranty period all Services will be performed in a professional and workman-like manner by appropriately trained personnel, using generally accepted industry standards and practices. As Netgate’s sole liability and your exclusive remedy for a breach of this warranty, if the Services are not provided as warranted, Netgate will, at its sole discretion, either: (i) correct any material non-conformances in the Services Deliverables; (ii) re-perform the Services; or (iii) credit you for the amount paid for the nonconforming Services. This warranty does not apply to the extent any non-conformity relates to (i) any specifications, code, diagnostic or other tools, or any other materials provided by you; (ii) the integration, operation, modification, or use of the Services or any deliverables in any manner not authorized by Netgate, and (iii) any changes to the network environment after the services were rendered. The warranty period is thirty (30) days following the completion of the Services where no acceptance procedure is applicable, or thirty (30) days following acceptance of the Service where an acceptance period is applicable.
4. Acceptance. Services and related Deliverables are subject to a right of acceptance only if expressly stated in the applicable order. Where you have a right of acceptance, you may reject Services or Deliverables only for a material failure to conform to specifications. You must evaluate Services and Deliverables subject to your right of acceptance promptly following delivery and provide written notice no later than the tenth (10th) day following delivery stating either: (i) acceptance; or (ii) rejection, describing the grounds for rejection in reasonable detail. If you have not provided a written notice of acceptance or rejection by the 10th day, the Services or Deliverables will be deemed accepted. If you properly reject the Services or Deliverables, Netgate will use diligent efforts to correct the issues identified in your notice and will re-submit them to you for acceptance. The Services and any associated deliverables that are re-performed or re-delivered shall be subject to your acceptance in accordance with this provision. In the event you fail to accept or reject the Services within 10 days after Netgate’s completion of the applicable Services, or accept or reject re-performed Services within 10 days after Netgate’s completion of the applicable Services, the Services shall be deemed accepted, and you shall have no further right to reject the Services.
5. Your Obligations
5.1. Systems Backup and Other Prerequisites. Prior to Netgate beginning the Services, you must backup all data and systems information for the systems that Netgate personnel will access as part of the Services. You must also take all prerequisite steps stated in the order or otherwise reasonably requested by Netgate, such as: (i) ensuring that all manufacturers’ labels/serial numbers are in place, accessible, and legible, (ii) obtaining licenses or other appropriate permission for Netgate to access, use and service Third Party Products and software, and (iii) if appropriate, complete advance testing of hardware and software that will be used or accessed as part of the Services.
5.2. Onsite Services. If Netgate provides Onsite Services, you must provide a safe and suitable facility for the performance of the Services, including compliance with applicable laws and industry standards for health, safety, and security. You must have at least one representative physically present at the applicable location during the entire time that the Netgate personnel are Onsite. You must also provide the Netgate personnel with desk space, Internet access, and other facilities and services as Netgate may reasonably request to perform the Services. Netgate personnel will comply with your safety and security procedures generally applicable to your Onsite vendors, provided those procedures are communicated by you to Netgate.
5.3. Systems Access. You must provide Netgate personnel with access to your information technology systems as Netgate may reasonably request for the performance of the Services, including remote access if requested. Netgate will comply with your security requirements for such access that are made part of the order, or if no security requirements are included in the order, your reasonable security requirements communicated in advance to Netgate.
5.4. Scheduling. You are responsible for scheduling the dates and times for the performance of Services. You must schedule Services to begin within 60 days of the applicable order.
If you do not perform your obligations stated in this Section, Netgate is excused from performing the Services to the extent it is reasonably prevented from performing as a result of the failure, and you are responsible for all resulting increased costs to Netgate in completing the Services. Further, you acknowledge that your failure to perform you obligations under this Section may result in Netgate or third parties voiding applicable warranties and support obligations, and agree that Netgate is not responsible or liable to you for any such action.
6. Fees and Cancellation. Fees for Services are stated in the applicable order. Invoices and payment terms for expenses and Services fees are described in the Netgate Terms, provided that for certain Services Netgate may invoice and require payment of fees in advance unless otherwise provided in the order. You may cancel an order for Services on thirty (30) days advance written notice. If you cancel an order for Services you must pay fees for Services performed through the effective date of termination and all reimbursable expenses incurred by Netgate prior to the effective date of termination. Netgate will credit or refund any prepaid fees applicable to cancelled Services not performed on the date of termination, less any volume or other discount taken to which you are no longer entitled. If Netgate is not reasonably able to complete any Services prior to the anticipated date for completion of the Services due to your failure to perform your obligations, then in addition to any other remedies Netgate may have, it may cancel the unfulfilled Services on thirty (30) days prior written notice.
7. Rights in Deliverables. The following terms shall apply to Deliverables identified in an order and provided by Netgate as part of Services, including Software and documentation. Subject to these Netgate Terms and payment of the applicable fees, Netgate and its third party licensor, if applicable, grant to you a non-exclusive, non-transferable license to use the Deliverables solely for internal purposes and solely for the purposes stated in the order or the relevant product documentation. You have no right to sublicense such Software Deliverables or any related rights. Otherwise, Netgate retains all right, title and interest in and to Deliverables.
8. Supervision of Netgate Personnel. Netgate has the exclusive right to supervise and instruct its personnel, in particular with respect to work hours and the scope and manner of performance of the services. You have no rights to instruct or supervise Netgate’s personnel whatsoever.
Last updated on February 26, 2019