General Terms and Conditions
Definitions
Any capitalized term used but not otherwise defined in this Agreement has the meaning ascribed to it as set forth below.
“Aggregate Data” means Customer Data and any data derived from Customer Data or Customer’s access to or use of the Platform that has been aggregated and de-identified by NetDeck in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer as the source or subject of such data.
“Agreement” means the GTC together with the Order incorporating the GTC.
“Claim” means any dispute or claim arising from or relating to this Agreement, including the breach, termination, validity, applicability, or interpretation of this Agreement.
“Confidential Information” means information that a party discloses to the other party in connection with this Agreement that the party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information includes non-public information that a party discloses in connection with this Agreement relating to: Intellectual Property; technology; know-how; prototypes; current and future products and services; processes; customers; vendors; suppliers; employees; contractors; business plans and methods; research and development; promotional and marketing activities; finances; pricing; contracts and business arrangements; and other business affairs.
“Credential” means any user account, password, or other authentication credential associated with access to or use of the Platform by Customer.
“Customer” means the party identified as “Customer” in the Order.
“Customer Content” means any music, sounds, photographs, images, graphics, videos, and other content Customer provides to NetDeck for use as part of the Services.
“Customer Data” means any data that Customer submits, uploads, transmits, or otherwise makes available through the Platform.
“Customer Materials” means Customer Content, Customer Data, and any other material Customer provides to NetDeck for use as part of the Services or that Customer submits, uploads, transmits, or otherwise makes available through the Platform.
“Customer Facility” means any Credential or account, hardware, system, or other facility within Customer’s custody or control.
“Deliverable” means any work product or other material created by or on behalf of NetDeck that NetDeck provides to Customer as part of Professional Services. For the avoidance of doubt, “Deliverable” does not include the Platform.
“Disclosing Party” means the party disclosing Confidential Information to the other party.
“Documentation” means NetDeck’s then-current user manual and technical documentation for the Platform that NetDeck makes generally available to customers.
“Emergency Security Issue” means any access to or use of the Platform by: (a) Customer that disrupts or is reasonably likely to disrupt the availability of the Platform to other users; or (b) any unauthorized third party through access to or use of any Customer Facility.
“Exception” means any: (a) access to or use of the Platform by Customer or through any Customer Facility in any manner that does not comply in all material respects with the terms and conditions of this Agreement; (b) access to or use of the Platform by Customer in combination with any hardware or software not provided by NetDeck or approved as set forth in the Documentation; (c) modification to the Platform by or on behalf of Customer not made or authorized by NetDeck; (d) corruption, inaccuracy, or other defect of Customer Materials as provided by Customer; (e) failure by Customer to give all required notices and obtain all necessary consents (including all required permissions from Intellectual Property holders) for processing or use of Customer Materials in accordance with this Agreement; or (f) Security Breach occurring with respect to Customer Data or User Data within Customer’s custody or control.
“Feedback” means any suggestion, comment, idea, improvement, or other feedback relating to any NetDeck Materials that Customer elects to provide or make available to NetDeck.
“GTC” means these General Terms and Conditions.
“Implementation Services” means the initial implementation, configuration, and integration services (if any) that NetDeck will provide to Customer in connection with the Platform as set forth in the Order.
“Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works, and other works of authorship (including moral rights); sui generis database rights; trademarks, service marks, trade dress, trade names, logos, and other source identifiers; trade secrets; and all other intellectual property and industrial designs.
“Module” means an add-on module, feature, integration, or other component for performing a specific function or set of functions, as identified in the Order, not included as part of the base configuration of the Platform. If the Order specifies that a particular Module is included, then such Module will be deemed to be part of the Platform under such Order.
“NetDeck” means NetDeck, Inc., a Delaware corporation.
“NetDeck Materials” means, collectively, the Deliverables, Documentation, and Platform, including all improvements, enhancements, and modifications thereto and derivative works thereof created by or on behalf of NetDeck.
“Order” means any sales order or SOW incorporating the GTC for Customer to obtain access to and use of certain NetDeck offerings specified in the sales order or SOW.
“Platform” means the base configuration of NetDeck’s proprietary, cloud-based digital card game accelerator platform that facilitates the creation and publication of multiplayer digital card games.
“Prevailing Party” means the party obtaining: (a) an award, judgment, or dismissal from an arbitration panel or court of competent jurisdiction; or (b) substantially the relief sought through any arbitration or legal proceeding.
“Process” and “process” (each as used in relation to data) means to employ any operation on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
“Professional Services” means any training, development, or other professional services that NetDeck will provide to Customer as set forth in an SOW.
“Receiving Party” means the party receiving Confidential Information from the other party.
“Security Breach” means any: (a) unauthorized processing of Customer Data or User Data; or (b) breach of the physical, technical, administrative, or organizational safeguards implemented by a party to protect Customer Data or User Data against unauthorized processing.
“Services” means, collectively, Implementation Services and Professional Services.
“SOW” means a statement of work, including any as may be appended to an Order, for Customer to obtain, as applicable, Implementation Services or Professional Services as specified in the statement of work, in each case specifying that the SOW is governed by the GTC.
“Territory” means the United States of America and its territories, unless otherwise specified in the Order.
“User Data” means user and usage data collected by or through the Platform relating to user interactions with Customer Materials and Customer’s trading card games accessible through the Platform.
Grant of Rights
Access and Use. During the term of the Order and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement: (i) NetDeck shall provide Customer with access to and use of the Platform; and (ii) NetDeck hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform and Documentation for Customer’s internal business purposes.
Third-Party Components. Some components of the Platform may consist of third-party components licensed under open source or other third-party license terms (“Third-Party Components”). NetDeck will identify Third-Party Components and the applicable license terms within the Platform, and such license terms will apply with respect to such Third-Party Components.
Services
Implementation Services. NetDeck shall provide Customer with Implementation Services (if any) as set forth in the Order.
Professional Services. From time to time, NetDeck may provide Customer with Professional Services as set forth in an SOW. Each SOW will specify, among other terms the parties deem relevant: (i) a description of the Professional Services and any Deliverables that NetDeck will provide; (ii) the schedule for performance; and (iii) the fees that Customer will pay and the schedule for payment.
Acceptance Testing. NetDeck shall provide each Deliverable to Customer for testing pursuant to the procedure set forth in the Order. If the Order does not specify any such testing procedure, the testing procedure in this Section 3(c) will apply. Upon NetDeck’s completion of a Deliverable, NetDeck shall provide the Deliverable to Customer for testing. If Customer determines that a Deliverable fails to conform in any material respect to the specifications for the Deliverable set forth in the Order, Customer shall give NetDeck written notice of such non-conformance, specifying in detail the manner of non-conformance (each, a “Notice of Deficiency”) within 10 days after NetDeck provides the Deliverable to Customer for testing (the “Testing Period”). The Deliverable will be deemed accepted by Customer if: (i) Customer gives written notice of acceptance (email to suffice); (ii) Customer makes production use of the Deliverable; or (iii) the Testing Period for the Deliverable concludes without Customer giving a Notice of Deficiency to NetDeck. If Customer issues a Notice of Deficiency within the Testing Period, NetDeck shall use commercially reasonable efforts to resolve any non-conformance identified in the Notice of Deficiency and resubmit the Deliverable to Customer for testing pursuant to this Section 3(c). Upon acceptance of a Deliverable pursuant to this Section 3(c), the Deliverable will be deemed to be part of the Platform, and the terms and conditions herein applicable to the Platform will apply in the same manner to the Deliverable.
Change Order. Any change to the scope of work, specifications, assumptions, schedule for performance, Deliverables, or fees for Implementation Services or Professional Services will be subject to a change order request (each, a “Change Request”), and no Change Request will be binding unless it has been accepted in writing by both parties (each, “Change Order”). An SOW may specify additional procedures for Change Requests and Change Orders, which additional procedures will apply with respect to such SOW.
Customer Responsibilities. Customer shall perform the tasks and fulfill the responsibilities specified in each Order as tasks and responsibilities that Customer has the obligation to perform or fulfill (collectively, “Customer Responsibilities”). Customer acknowledges and agrees that NetDeck’s performance of Services and NetDeck’s completion of Deliverables are subject to: (i) Customer fulfilling Customer Responsibilities in all material respects in a timely manner; (ii) the assumptions set forth in the Order remaining valid in all material respects; and (iii) Customer obtaining all licenses and consents required from third parties with respect to any materials provided by Customer that are required for use by NetDeck to fulfill its obligations hereunder.
Non-Solicitation. To the extent permitted under applicable law, during the term of this Agreement and for one year thereafter, neither party shall, directly or indirectly, on its own or on behalf of any other party: (i) solicit, contract with, or hire, or attempt to solicit, contract with, or hire, any personnel of the other party; or (ii) induce, or attempt to induce, the termination of, or interfere with, or attempt to interfere with, any employment relationship between any personnel of the other party and the other party. Nothing in this Section 3(f) prohibits either party from hiring any personnel of the other party who responds to a general solicitation of employment not specifically directed to such person or who approaches the party on a wholly unsolicited basis.
Conditions and Restrictions
Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor may it permit any other party to: (i) reproduce, distribute, modify, translate, adapt, or create derivative works based upon any NetDeck Materials; (ii) reverse engineer, decode, decompile, disassemble, or otherwise attempt to access or derive any source code or architectural framework of any NetDeck Materials consisting of software; (iii) access or use any NetDeck Materials for purposes of benchmarking or developing, marketing, selling, or distributing any product or service that competes with or includes functions and features substantially similar to any NetDeck Materials; (iv) ping or otherwise transmit commands or queries to the Platform for any purpose other than as contemplated herein; (v) rent, lease, lend, sell, or sublicense any NetDeck Materials, or otherwise provide access to or use of any NetDeck Materials as part of a service bureau or similar fee-for-service purpose; (vi) submit, upload, email, transmit, or otherwise make available through or to the Platform any material that violates another party’s Intellectual Property or other proprietary rights; (vii) provide any Customer Materials to NetDeck for use as part of Services that Customer does not own or that Customer has not obtained all required permissions from rightsholder for NetDeck to use as part of Services; or (viii) access or use any NetDeck Materials in any way that does not comply with all applicable laws and regulations.
Technical Requirements. Except to the extent expressly covered by Services, Customer shall be solely responsible for obtaining, configuring, and maintaining any hardware, network connectivity, and third-party software or services required for Customer to access or use the Platform, including computers, mobile devices, operating systems, web browsers, and storage devices.
Protection. Customer shall maintain the confidentiality of Credentials, and Customer shall be responsible for all activities undertaken using Customer Facilities. If Customer becomes aware of any unauthorized access to or use of the Platform through use of Customer Facilities, Customer shall promptly give written notice to NetDeck of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall implement and maintain appropriate administrative, technical, and physical security policies and procedures and access control methodologies to safeguard access to and use of the Platform through Customer Facilities. All such measures must comply with prevailing industry standards but must in no case consist of less than reasonable care.
Compliance Requirements. NetDeck does not offer and does not purport to offer any legal, accounting, or other professional advice, including any advice for complying with any laws, rules, regulations, best practices, or other requirements (collectively, “Compliance Requirements”). Customer shall be solely responsible for determining which Compliance Requirements are applicable to Customer and its access to and use of the Platform and taking appropriate measures to comply with such requirements. NetDeck does not represent or warrant and expressly disclaims any representation or warranty that access to or use of the Platform will ensure that Customer complies with any Compliance Requirements.
Tournaments. Without limiting the generality of Section 4(d), if Customer uses the Platform to administer a trading card game tournament or competition (each, a “Tournament”), Customer is solely responsible for: (i) all activities relating to the Tournament, including the establishment and enforcement of applicable rules, collection of entry fees, disbursement of monetary awards, and resolution of disputes (“Tournament Activities”); and (ii) complying with all Compliance Regulations relating to sweepstakes, contests, gaming, and money transmission applicable to the Tournament or Tournament Activities.
Guidelines. If Customer accesses or uses the Service in connection with activities relating to trading card games published by third parties (each, a “Third-Party Publisher”), Customer understands that such Third-Party Publishers may have established codes of conduct or community guidelines applicable to their trading card games (“Guidelines”). Customer is solely responsible for reviewing and complying with all Guidelines applicable to Customer’s activities.
Fees and Taxes
Fees. Customer shall pay NetDeck the applicable fees set forth in each Order pursuant to the payment terms set forth therein. All fees due under this Agreement are non-cancellable and non-refundable. If an Order does not set forth payment terms, payment will be due within 30 days after the date Customer receives the applicable invoice. Any payment not received by NetDeck from Customer when due will incur interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower. Unless otherwise specified, all fees set forth in an Order are denominated and due in United States dollars. All amounts that remain due from Customer under this Agreement will become immediately due and payable if any amount due from Customer under this Agreement remains unpaid more than 30 days past its due date.
Taxes. All amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise, or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes, except for any Taxes based upon NetDeck’s net income. If NetDeck has the legal obligation to collect any Taxes, Customer shall reimburse NetDeck upon invoice by NetDeck. If Customer is required by applicable law to withhold any amount from its payments to NetDeck under this Agreement and pay such amount to a tax authority, Customer shall: (i) deduct such amount from its payments to NetDeck under this Agreement and pay such amount to the applicable tax authority, taking reasonable measures to minimize the amount paid to the tax authority; and (ii) provide NetDeck with an official receipt or other appropriate documentation of such payment to the tax authority.
Intellectual Property
NetDeck Ownership. As between NetDeck and Customer, NetDeck owns all rights, title, and interest (including all Intellectual Property) in and to NetDeck Materials and User Data.
Customer Ownership. As between Customer and NetDeck, Customer owns all rights, title, and interest (including all Intellectual Property) in and to Customer Materials. Customer grants NetDeck and its service providers a worldwide, royalty-free, fully paid-up, non-exclusive right and license to use, reproduce, modify, adapt, and distribute Customer Content as necessary for NetDeck to provide the Services and provide Customer with access to and use of the Platform.
Feedback. If Customer provides any Feedback to NetDeck, Customer hereby grants NetDeck a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, and have made such Feedback for any lawful purpose, without credit or compensation to Customer.
Intellectual Property Notices. Customer shall not remove, obscure, or modify in any way any copyright, trademark, patent, or other proprietary notice or disclaimer that appears on or within NetDeck Materials.
Reservation of Rights. Each of the parties reserves all rights not expressly granted by it under this Agreement.
Data Protection and Security
Notices and Consents. Each of NetDeck and Customer shall give all notices to and obtain all consents from applicable data subjects as required by applicable law before providing and personal information relating to such data subjects to the other party for use in accordance with this Agreement. Customer shall not submit, upload, email, transmit, or otherwise make available through or to the Platform any data not owned by Customer or for which Customer does not have all necessary authorization to submit, upload, email, transmit, or otherwise make available through or to the Platform.
Processing by NetDeck. During the term of this Agreement, Customer hereby grants NetDeck and its service providers a worldwide, royalty-free, non-exclusive license to process Customer Data, but only: (i) as necessary for NetDeck to provide Customer with access to and use of the Platform in accordance with this Agreement; or (ii) in a manner consistent with Customer’s written instructions. NetDeck shall process Customer Data as a service provider to Customer and shall not sell Customer Data.
Processing by Customer. During the term of this Agreement, NetDeck hereby grants Customer and its service providers a worldwide, royalty-free, non-exclusive license to process User Data, but only as necessary for Customer to host, operate, or administer Customer’s trading card games hosted on the Platform. Customer shall process User Data as a service provider to NetDeck and shall not sell User Data.
Aggregate Data. Customer acknowledges and agrees that NetDeck may collect or generate Aggregate Data in connection with Customer’s access to or use of the Platform. Customer hereby grants NetDeck a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to process Aggregate Data for any lawful purpose.
Protection and Security. NetDeck and Customer shall each implement and maintain appropriate administrative, technical and physical security policies and procedures and access control methodologies consistent with prevailing industry standards, but in no case less than reasonable care, to: (i) safeguard Customer Data and User Data within its custody or control against any Security Breach; and (ii) comply with all laws and regulations, including all privacy and data protection laws and regulations, applicable to its processing of Customer Data or User Data.
Security Breach. If either party becomes aware of a Security Breach occurring with respect to Customer Data or User Data within its custody or control, it shall promptly (but in no case more than 48 hours after it becomes aware of such Security Breach) give the other party notice of the Security Breach, provided that it may delay providing such notice to the extent required by applicable law or the instructions of a law enforcement agency.
Third-Party Providers. The Platform may offer optional integrations with third-party providers (collectively, “Third-Party Providers”) that provide products or services through integrations with the Platform (collectively, “Third-Party Offerings”). Customer can choose which Third-Party Offerings (if any) to use. If Customer chooses to use any Third-Party Offering, then Customer hereby consents to NetDeck providing the applicable Third-Party Provider with access to and use of Customer Materials for processing by the Third-Party Provider in accordance with Customer’s instructions. Any such access to or use of Third-Party Offerings and processing of Customer Materials by Third-Party Providers is subject to the applicable Third-Party Provider’s terms and conditions and privacy policy, and NetDeck shall have no liability with respect to any such access to or use of Third-Party Offerings or processing of Customer Materials by Third-Party Providers.
Confidential Information
Maintenance and Use. Receiving Party shall maintain Confidential Information in strict confidence, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like nature, but in no case less than reasonable care. Receiving Party shall not: (i) use or disclose Confidential Information other than as necessary to exercise its rights or fulfill its obligations under this Agreement; or (ii) modify, adapt, reverse engineer, decode, decompile, or disassemble Confidential Information, or create any derivative work based upon Confidential Information, except as expressly permitted under this Agreement.
Access. Receiving Party shall restrict access to and use of Confidential Information to its directors, officers, employees, contractors, agents, and legal and financial advisers who: (i) have a legitimate need to know Confidential Information; (ii) are informed of the confidential nature of Confidential Information; and (iii) are bound by obligations with respect to Confidential Information that are consistent with, and at least as restrictive as, those imposed by this Agreement.
Exclusions. The duties of confidentiality imposed by this Section 8 do not apply to any information to the extent that it: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement or any other confidentiality agreement; (ii) was known by or in the lawful possession of Receiving Party prior to receipt from Disclosing Party; (iii) is or has been independently developed or conceived by Receiving Party without use of or reference to Confidential Information; or (iv) is or has been provided or made known to Receiving Party by a third party without a breach of any obligation of confidentiality to Disclosing Party.
Required Disclosures. Receiving Party may disclose Confidential Information as required to comply with the order of a governmental entity that has jurisdiction over Receiving Party or as otherwise required by law, provided that Receiving Party: (i) notifies Disclosing Party of such required disclosure in advance (to the extent permitted by law) to provide Disclosing Party with an opportunity to seek a protective order; and (ii) takes reasonable steps to minimize the extent of any such required disclosure.
Term, Suspension and Termination
Term. The term of this Agreement will be as set forth in the Order and is non-cancellable.
Suspension. NetDeck reserves the right to suspend Customer’s access to or use of the Platform in the event of an Emergency Security Issue. NetDeck shall use commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue. NetDeck further reserves the right to suspend its provision of Services and Customer’s access to or use of the Platform if any amount due from Customer under this Agreement remains unpaid more than 30 days past its due date. NetDeck further reserves the right to suspend its provision of Services and Customer’s access to and use of the Platform if any amount due from Customer under this Agreement remains unpaid more than 30 days past its due date.
Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement: (i) upon a material breach of this Agreement by the other party if such breach remains uncured 30 days after the party gives the other party written notice of the breach; or (ii) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceeding under bankruptcy, insolvency, or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted by NetDeck under this Agreement terminate immediately; (ii) Customer shall immediately cease all access to and use of NetDeck Materials; and (iii) each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.
Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 4(a) (Restrictions); 5 (Fees and Taxes); 6 (Intellectual Property); 7 (Data Protection and Security); 8 (Confidential Information); 9(d) (Events Upon Termination); 9(e) (Survival); 10 (Representations and Warranties); 11 (Indemnification); 12 (Disclaimer of Warranties); 13 (Limitation of Liability); and 14 (Miscellaneous).
Representations and Warranties
General. NetDeck and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) its execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) its entry into and performance of this Agreement will not conflict with any provision of law or its certificate of incorporation, bylaws, or comparable organizational documents; (iv) no action by any governmental entity is necessary to make this Agreement valid and binding upon it; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
Services Warranty. NetDeck represents and warrants to Customer that NetDeck shall perform Services in a competent and workmanlike manner. Customer’s exclusive remedy and NetDeck’s sole obligation with respect to any breach of the foregoing representation and warranty will be for NetDeck to reperform the affected Services in compliance with the foregoing representation and warranty, failing which NetDeck shall refund to Customer the fees paid by Customer for the applicable Services.
Indemnification
NetDeck Indemnification. NetDeck shall defend Customer and its directors, officers, employees, and agents (collectively, an “Customer Indemnified Parties”) against any action or claim of a third party, and indemnify and hold the Customer Indemnified Parties harmless against any loss, damage, cost, liability, or expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement arising from any such third-party action or claim (collectively, “Losses”) to the extent based upon or resulting from NetDeck Materials infringing the Intellectual Property of such third party. Notwithstanding anything to the contrary, NetDeck shall have no obligation to indemnify, defend, or hold Customer Indemnified Parties harmless against any Loss to the extent arising from an Exception. If any part of NetDeck Materials becomes the subject of a claim, or NetDeck reasonably determines that any part of NetDeck Materials is likely to become the subject of a claim, asserting that NetDeck Materials infringe the Intellectual Property of a third party, NetDeck may, in its sole discretion: (i) procure a license as necessary for Customer to continue use of NetDeck Materials in accordance with this Agreement; (ii) modify or replace NetDeck Materials to avoid infringement, provided that NetDeck Materials as modified or replaced retain materially the same or better features and functionality; or (iii) terminate the Order (or portion thereof) for the applicable NetDeck Materials and provide a pro rata refund of the unused fees paid by Customer to NetDeck for such NetDeck Materials. This Section 11(a) sets forth Customer’s exclusive remedy and NetDeck’s sole obligation with respect to any Losses to the extent arising from any action or claim of a third party asserting that any NetDeck Materials infringe the Intellectual Property of such third party.
Customer Indemnification. Customer shall defend NetDeck and its directors, officers, employees, and agents (collectively, “NetDeck Indemnified Parties”) against any action or claim of a third party and indemnify and hold the NetDeck Indemnified Parties harmless against any Losses to the extent based upon or resulting from an Exception or Customer’s breach of this Agreement.
Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim, provided that failure of the indemnified party to give such prompt written notice will not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 11, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation. The indemnified party shall have the right to retain its own counsel at its own expense to participate in the defense or settlement of any indemnified claim.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXCEPT AS SET FORTH IN SECTION 10), EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY, OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT ACCESS TO OR USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES, OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS THAT CUSTOMER SUBMITS TO OR OBTAINS FROM THE PLATFORM BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS AND FOR ENSURING CUSTOMER’S COMPLIANCE WITH COMPLIANCE REQUIREMENTS (AS DEFINED IN SECTION 4(d)).
LIMITATION OF LIABILITY
DISCLAIMER. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY ACCESS TO OR USE OF (OR INABILITY TO ACCUSS OR USE) THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT, OR FAILURE OF NETDECK MATERIALS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
DAMAGES. EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO NETDECK UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
EXCLUSIONS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 13(a) AND 13(b) DO NOT APPLY WITH RESPECT TO A PARTY’S FRAUD, WILLFUL MISCONDUCT, VIOLATION OF LAW, GROSS NEGLIGENCE, OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 11. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTION 13(a) DO NOT APPLY WITH RESPECT TO A PARTY’S BREACH OF SECTION 7 (DATA PROTECTION AND SECURITY) OR SECTION 8 (CONFIDENTIAL INFORMATION).
Miscellaneous
Independent Contractors. The relationship between NetDeck and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party without the express prior written consent of such other party.
U.S. Government Matters. Notwithstanding anything to the contrary, Customer shall not provide to any person or export or re-export or allow the export or re-export of any NetDeck Materials or any direct product of Services (collectively “Controlled Subject Matter”) in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that it shall not, and it shall not permit any other party to, use, export, or re-export the Controlled Subject Matter in or to jurisdictions outside the Territory or in or to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), including in or to any national or resident of an Embargoed Country, or any entity on the United States Department of Treasury’s List of Specially-Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the United States Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by NetDeck are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government is governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
Notice. Except as expressly provided otherwise in this Agreement, notices given under this Agreement will be in writing and personally delivered by hand, sent via an internationally-recognized courier service, mailed by first-class certified mail (return receipt requested), or sent via email to the address for each party set forth below. Notices will be deemed to have been given: (i) if personally delivered by hand, when delivered (with written confirmation of delivery); (ii) if sent via an internationally-recognized courier service or by first-class certified mail (return receipt requested), when delivered (as shown in the records of the courier or postal service, as applicable); or (iii) if sent via email, on the date such email is transmitted, provided that any notice sent by email after 5:00 p.m. local time for the recipient will be deemed received on the next business day.
To NetDeck
NetDeck.gg
Attn: Legal Department
792 Whippoorwill Lane
Stratford, CT 06614
To Customer
As set forth in the Order.
Assignment. Customer may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of NetDeck. NetDeck may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without Customer’s consent. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements (including any end user license agreement or terms of service) with respect to such subject matter. In the event of any conflict between the terms and conditions of the GTC and any Order, the terms and conditions of the GTC will take precedence and control except as expressly and unambiguously stated otherwise in the Order.
Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
Choice of Law. This Agreement and all Claims will be governed by and construed and enforced in accordance with the laws of the State of Texas and the laws of the United States of America applicable therein, without regard to conflict of laws principles. For the avoidance of doubt, the parties acknowledge and agree that the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs any arbitration conducted pursuant to Section 14(i). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any state) are specifically excluded from application to this Agreement.
Arbitration. Any Claim, including the determination of the validity, scope, or applicability of this agreement to arbitrate, will be resolved through binding, confidential arbitration conducted by the American Arbitration pursuant to its then-applicable Commercial Arbitration Rules or, as appropriate, its Mass Arbitration Supplementary Rules (collectively, the “AAA Rules”), except in each case to the extent modified by this agreement to arbitrate. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objection with respect to the validity, scope, or applicability of this agreement to arbitrate or the arbitrability of any Claim. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, subject to Section 14(k). The arbitration will be conducted in Dallas, Texas. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
Injunctive and Other Equitable Relief. Notwithstanding anything to the contrary, each of NetDeck and Customer retains the right to seek injunctive relief and other equitable remedies from any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of its Intellectual Property, whether in aid of, pending, or independently of the resolution of any Claim pursuant to Section 14(i).
Attorneys’ Fees and Costs. In any arbitration, litigation, or other proceeding arising from any Claim or by which one party seeks to enforce its rights under this Agreement (whether in contract, tort, or otherwise) or seeks a declaration of any rights or obligations under this Agreement, the Prevailing Party shall be entitled to recovery of its reasonable attorneys’ fees and costs and expenses incurred. If any amount owed by Customer under this Agreement is not paid when due, Customer shall be responsible for all reasonable costs and expenses incurred by NetDeck in collecting such amounts, including collection agency fees, court costs, and reasonable attorneys’ fees, regardless of whether arbitration or litigation is commenced.
Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified, or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
Force Majeure. Except for Customer’s obligation to pay all fees when due under this Agreement, neither party will be liable for any failure to perform under this Agreement to the extent due to any cause beyond the reasonable control of the party invoking this provision, including any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities, or insurrection.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.