PLEASE READ THIS END USER TERMS AND CONDITIONS CAREFULLY. BY POWERING UP AND USING DTEN SUBSCRIPTION PRODUCTS
(DEFINED BELOW) THAT YOU HAVE PURCHASED FROM A THIRD-PARTY DISTRIBUTOR OR RESELLER OF SUCH DTEN SUBSCRIPTION
PRODUCTS AND/OR BY USING DTEN SERVICES (DEFINED BELOW), YOU AGREE TO THESE END USER TERMS AND CONDITIONS. IF YOU
DO NOT AGREE TO THE TERMS OF THIS END USER TERMS AND CONDITIONS, DO NOT USE THE DTEN SUBSCRIPTION PRODUCT(S)
AND/OR SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN END USER End User, YOU REPRESENT THAT
HAVE THE AUTHORITY TO BIND THAT END USER End User TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT
AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE DTEN
PRODUCTS AND SERVICES.
“End User” or “you” means the entity or individual that is a
user of DTEN Subscription Product(s) and/or Services.
“DTEN” as referred in this Agreement shall mean and refer to DTEN, Incorporated,
located at 97 E Brokaw Rd #300,
Suite 180, San Jose, CA 95112 (“End User” and “DTEN”, shall be referred to as the “Parties,” and each individually
as a “Party”).
The purpose of this Agreement is to establish the terms and conditions under which the End User may use
Subscription Products and receive Services (defined below).
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set
out herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
1. SUBSCRIPTION PRODUCTS AND RELATED SUPPORT SERVICES
1.1 Access and Use.
DTEN hereby grants End User a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to
access the Subscription Products, in the Territory, for its internal business purposes during the Subscription
Term and subject to the terms of the relevant Order, this Agreement and the Documentation.
The Hardware will be delivered to the End User as contracted between the End User and the third party
distributor or reseller. DTEN will not be responsible or liable to provide any Hardware to the End User. End
User shall contact and coordinate with the third party distributor or reseller regarding shipment or damage to
Subscription Product(s). Where Hardware is part of the Subscription Product(s) as agreed in the relevant Order,
such Hardware shall be owned by DTEN and End User is provided a limited license to use such Hardware as part of
Subscription Product(s) as specified in Section 1.1.
Upon termination or completion of the Subscription Term in a relevant Order, End User shall return the Hardware
back to DTEN, subject to general wear and tear, failing which the End User shall pay DTEN full price for the
DTEN will not provide any Support Services for any End User owned hardware or hardware that was purchased by the
End User separately and not purchased or licensed from DTEN pursuant to an Order under this Agreement.
1.3 Use of Services.
DTEN will provide Services as agreed in the relevant Order and End User Support Services Appendix. DTEN reserves
the right to provide Services, inter alia, deploy updates, error corrections, patches, modifications or
enhancements to the Subscription Product(s) at any time.
1.4 Usage Limits.
Subscription Product(s) are subject to usage limits specified in the Order and Documentation. Unless otherwise
approved in writing by DTEN: a) End User shall not disassemble, decompile, reverse engineer, copy, distribute,
modify or sell Subscription Products or related Services except as expressly and unambiguously permitted by this
Agreement; b) End User shall not incorporate or make provisions intentionally or inadvertently for incorporating
any virus or other harmful content or components to Subscription Products or related Services; c) remove or
alter any product identification, copyright or other notices; d) install any other software on the Hardware, or
modify or use the Hardware for any other purpose not expressly permitted in the Documentation, or install or use
the Software installed on the Hardware on any hardware not provided or approved by DTEN; e) make Subscription
Product(s) or Services available to anyone other than Users including anyone operating as a service bureau to
benefit third-parties; f) interfere with or disrupt the integrity or performance of the Subscription Product(s)
or Services or any data contained therein; g) access any part of Subscription Product(s), Services or
Documentation in order to build a competitive product or service; h) Remove, alter, modify or open the Hardware;
or i) use any of DTEN’s intellectual property except as permitted under this Agreement, Order or the
Documentation. If End User or Users violate this section or DTEN reasonably suspects a violation of this
section, DTEN shall have the right to immediately suspend access to the Subscription Products and/or Services or
terminate the Order.
1.5 Internet Connection.
A high-speed Internet connection is required for proper use of the Subscription Product(s) and Services. End
User is responsible for procuring, securing and maintaining network connections that connect Users to the
Subscription Product(s) and Services, including but not limited to, "browser" software that supports protocols
used by DTEN. DTEN is not responsible for notifying End User or Users of any compromise of End User Data
transmitted across networks or telecommunications facilities that are not owned or managed by DTEN.
1.6 Reservation of Rights.
DTEN and its licensors retain all right, title, and interest to all intellectual property created, used, or
provided by DTEN to End User pursuant to this Agreement, including, but not limited to, all of the Subscription
Product(s) and deliverables resulting from Services and Documentation (“DTEN IP”). DTEN shall own all right,
title, and interest in and to all modifications, improvements or derivatives of any part of the DTEN IP (created
by either party). End User hereby makes all assignments necessary to provide DTEN such ownership rights.
Notwithstanding anything in this Agreement to the contrary, DTEN will always retain any and all ownership rights
in DTEN IP and other DTEN’s technology. For technology advances and production efficiency, DTEN reserves the
right, from time to time, in its sole discretion and without incurring any liability to End User to: (a)
discontinue or limit its provision of any Subscription Product(s) or Services upon ninety (90) days notice; (b)
without materially impairing the applicable functionality, alter the specifications, design, construction or
other market scopes of distribution of any Subscription Product(s) or Service; and (c) change its sales and
distribution policies and practices. DTEN will cooperate, in good faith, with End User to reduce any
inconveniences caused by any change pursuant to this section.
1.7 End User Data.
End User is solely responsible for securing and maintaining all rights needed for DTEN to provide the
Subscription Product(s) and related Services. All rights, title and interest in and to End User Data and all
intellectual property rights including copyright, trademark, and trade secret rights in End User Data are and
will remain the property of End User and/or its Affiliates. Subject to DTEN’s confidentiality obligations, End
User hereby grants to DTEN throughout the term of this Agreement and after the term as necessary for any DTEN
post-termination obligations to End User, the necessary rights or license to use End User Data solely as
necessary for DTEN to perform its obligations under this Agreement. End User shall provide DTEN, in the form and
format, and as specified by DTEN, all End User Data reasonably required by DTEN to provide, monitor and improve
the Subscription Product(s) or Services. End User agrees that DTEN may use End User Data to develop aggregated
statistics and other information compiled from all subscribers to the Subscription Product(s) and Service. The
End User Data may be irretrievably deleted from DTEN systems on the date of expiration or termination of this
Agreement or any Order. End User will have to request DTEN (in writing) 30 days in advance prior to the date of
termination or expiration of this Agreement or the relevant Order for any of End User Data that the End User
wishes to retain, DTEN will make End User Data available for download and will offer assistance to transition
End User Data at its then prevailing rates for professional services.
End User shall not provide any personally identifiable information or sensitive date to DTEN, and that the End
User Data may be stored on third party cloud as DTEN may determine from time to time. DTEN’s use of End User
The End User shall own all right, title and interest in and to all of the End User Data and shall have sole
responsibility for the legality, reliability, integrity, accuracy and quality of all such End User Data.
If End User provides any feedback to DTEN concerning the functionality or performance of Subscription Product(s)
or Services, (including identifying potential errors and improvements), End User hereby assigns to DTEN all
right, title, and interest in and to the feedback, and DTEN is free to use the feedback without payment or
2. Third Party Providers and Third Party Components.
2.1 Third Party Providers.
The End User acknowledges that the Subscription Product(s) or Services may enable or assist it to access the
website content of, correspond with, and purchase products and services from, third parties via third-party
websites and that it does so solely at its own risk. DTEN makes no representation, warranty or commitment and
shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with,
any such third-party website, or any transactions completed, and any contract entered into by the End User, with
any such third party. Any contract entered into and any transaction completed via any third-party website is
between the End User and the relevant third party, and not DTEN. DTEN does not endorse or approve any
third-party website nor the content of the third-party website made available via the Subscription Product(s) or
2.2 Third Party Components.
The Subscription Product(s) contains third party software and open source software (“Third Party Components”),
such Third Party Components are governed by their respective agreements and are provided on an as-is basis
without any warranties or liabilities. Licensing terms of such Third Party Components can be provided upon End
User’s request. The terms of this Agreement will not apply to Third Party Components, and in the event any Third
Party Components adversely affect the functioning of the Subscription Product, DTEN’s only obligation and End
User’s sole remedy will be for DTEN to replace such Third Party Component with a functionally equivalent
3. END USER’S RESPONSIBILITIES.
To have continued use of Subscription Product(s) and receive Service, End User agrees to provide DTEN with the
3.1 all necessary:
- co-operation in relation to this Agreement.
- access to such information as may be required by DTEN.
3.2 serial numbers, proof of purchase and DTEN IDs of Subscription Product(s) that have to be signed-up prior
3.3 in order to provide the Subscription Product(s) and Services, including but not limited to End User Data,
security access information and configuration services
3.4 without affecting its other obligations under this Agreement, comply with all applicable laws and
with respect to its activities under this Agreement
3.5 carry out all other End User responsibilities set out in this Agreement or Order(s) in a timely and
manner. In the event of any delays in the End User's provision of such assistance as agreed by the Parties, DTEN
may adjust any agreed timetable or delivery schedule as reasonably necessary
3.6 ensure that the Services and the Documentation is used in accordance with the terms and conditions of this
Agreement and shall be responsible for any User's breach of this Agreement, Order(s) or Documentation
3.7 obtain and shall maintain all necessary licences, consents, and permissions necessary for DTEN, its
and agents to perform their obligations under this Agreement
3.8 ensure that its network and systems comply with the relevant specifications provided by DTEN from time to
3.9 be solely responsible for procuring, maintaining and securing its network connections and
links from its systems to the DTEN’ data centres, and all problems, conditions, delays, delivery failures and
all other loss or damage arising from or relating to the End User's network connections or telecommunications
links or caused by the internet
3.10 End User will be solely responsible for unpacking and installation of Subscription Product(s), including
4.1 DTEN may immediately suspend End User’s account and access to the Subscription Product and Services if (i)
End User fails to make payment due to DTEN within 10 business days after DTEN has provided End User with written
notice of such failure; (ii) End User violates this Agreement; or (iii) if reasonably required to prevent
unauthorized access to End User Data. Any suspension by DTEN of the Subscription Product(s) or Services under
the preceding sentence will not relieve End User of its payment obligations.
5. TERM, RENEWAL AND TERMINATION
5.1 Subscription Term. The Subscription Term for each subscription shall be as
specified in the applicable Order.
5.2 Agreement Term and Termination. This Agreement starts on the Commencement Date of
the initial Order and continues until all subscriptions have expired unless it is terminated earlier according
to this section. A Party may terminate this Agreement for cause if: 1) the other Party does not cure its
material breach within 30 days of receiving written notice from the non-breaching Party; or 2) the other Party
becomes the subject of a petition in bankruptcy or other proceeding related to insolvency. DTEN may terminate
this Agreement immediately for a cause: 1) End User fails to pay any overdue undisputed amount withing 10 days
of receiving a written request from DTEN; or 2) in addition to other termination rights of DTEN, upon End User’s
breach of section 1.4 of this Agreement. If this Agreement is terminated by DTEN for cause, End User will pay
any amount due to DTEN.
5.3 End User’s right to terminate an Order.
The eligibility of End User to terminate any given Order for convenience and receive refund for any advance
fee/charges paid pursuant such Order shall be as provided in this Section 5.3. End User may not terminate an
Order for convenience unless the Hardware is part of the Subscription Product(s) and meets the criteria provided
in Section 5.3 (I) and (II):
(I) Order that is limited to one (1) year Initial Term (as agreed in the relevant Order):
a. End User will have no right to terminate the Order for Convenience or be eligible to any refunds fees/charges
of the Subscription Product(s) or Support Services, whether or not Hardware is part of the Subscription
(II) Order that has a minimum Initial Term of two (2) years (as agreed in the relevant Order):
a. Only where Hardware is part of such Order, subject to Section 1.2 and Section 5.3 (II) (b), End User will be
eligible to receive 50% of the fees/charges of the Subscription Product(s) that was paid in advance for the
period after the effective date of termination of such Order
b. End User shall be obligated to pay: (a) restocking fees, including shipping and handling fee for early
termination of the Order, and b) repair cost for any visible damage cause to the Subscription Product(s).
5.4 Effect of Termination.
Unless agreed otherwise, no refunds or credits for fees or charges will be provided by DTEN or where DTEN
terminates this Agreement prior to the end of Subscription Term.
On termination or expirations of this Agreement:
- all licenses granted under this Agreement shall immediately terminate and the End User shall immediately cease
all use of the Subscription Product(s), Services and/or the Documentation
- unless agreed otherwise in this Agreement, each Party shall return and make no further use of any equipment,
property, or Documentation and other items (and all copies of them) belonging to the other Party
- End User shall return the Subscription Product(s) to DTEN without any damage or deterioration of the quality
of such Subscription Product(s), addition fee shall be charged to the End User in case the Subscription
Product(s) is damaged
- any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of
termination, including the right to claim damages in respect of any breach of the Agreement which existed at or
before the date of termination shall not be affected or prejudiced.
6. CONFIDENTIALITY AND SECURITY
“Confidential Information” means all information disclosed by or otherwise obtained from a party
(“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, or in writing, that
is designated as confidential or that reasonably should be understood to be confidential given the nature of the
information and the circumstances of disclosure. End User’s Confidential Information includes End User Data.
DTEN’s Confidential Information includes Software, Services, Hardware, Documentation and its other intellectual
property. Confidential Information of each party shall include the terms and conditions of this Agreement and
each Order as well as business and marketing plans, technology and technical information, product plans and
designs, and business processes disclosed by or on behalf of such Party. Confidential Information does not
include any information that: 1) is or becomes generally known to the public without breach of any obligation
owed to the Disclosing Party; 2) was known to the Receiving Party prior to its disclosure by the Disclosing
Party without breach of any obligation owed to the Disclosing Party; 3) is received from a third party without
breach of any obligation owed to the Disclosing Party; or 4) was independently developed by the Receiving
6.2 Protection of Confidential Information.
The Receiving Party shall: 1) use the same degree of care that it uses
to protect the confidentiality of its own Confidential Information of like kind (but in no event less than
reasonable care); 2) not disclose or use any Confidential Information of the Disclosing Party for any purpose
outside the scope of this Agreement; and 3) limit access to Confidential Information of the Disclosing Party to
those of its employees, contractors, and agents who need such access for purposes consistent with this
Agreement, have been advised of its confidential nature and the existence and importance of this Agreement and
who have signed confidentiality agreements with the Receiving Party containing protections no less stringent
6.3 Disclosure of Confidential Information.
All Confidential Information will remain the sole property of the
Disclosing Party and its confidentiality will be maintained and protected by the Receiving Party with the same
degree of care as the Receiving Party uses for its own confidential and proprietary information, but in no
event, less than a reasonable degree of care. The Receiving Party will not use the Confidential Information
except as necessary to fulfill its obligations or to enhance the service experience under this Agreement, nor
will it disclose such Confidential Information to any third party during the term of this Agreement and for
three years after its termination, without the prior written consent of the Disclosing Party. The Receiving
Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided
the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally
permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest
the disclosure. Upon the request of the Disclosing Party, the Receiving Party will collect and surrender, or
confirm the destruction or non-recoverable data erasure of, all Confidential Information and all copies thereof,
regardless of form, and any such destruction will be certified in writing to the Disclosing Party by an
authorized officer of the Receiving Party supervising such destruction.
7. WARRANTIES AND DISCLAIMERS
7.1 Warranties. Each party represents and warrants to the other that it has validly
entered into this Agreement and has the legal power to do so. DTEN warrants that: 1) unless agreed otherwise in
the Order, the Subscription Product(s) will perform materially in accordance with the Documentation for thirty
(30) days from the date of initial delivery to the End User; 2) DTEN will not materially decrease overall
functionality of the Subscription Product(s); 3) the Subscription Product(s) is free from all liens or other
encumbrances; and 4) DTEN will perform all Services in a workman like manner.
For any Subscription Product(s) and Services not in conformance with this Section 7.1, DTEN will, at its
discretion and cost, either repair or reperform the Subscription Product(s) or Service, as applicable. This is
End User’s exclusive remedy and DTEN’s sole liability arising in connection with the limited warranties herein.
EXCEPT AS PROVIDED IN SECTION 7.1, DTEN AND ITS AFFILIATES AND AGENTS: 1) EXPRESSLY DISCLAIM ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM
COURSE OF DEALING, USAGE, OR TRADE PRACTICE; 2) DO NOT WARRANT THAT ACCESS TO SUBSCRIPTION PRODUCT(S) OR
SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL
ACCESSIBLE OR PROVIDED THROUGH SUBSCRIPTION PRODUCT(S) OR SERVICES IS ACCURATE, COMPLETE OR FREE OF VIRUSES OR
OTHER HARMFUL CONTENTS OR COMPONENTS; 3) SHALL IN NO EVENT BE LIABLE FOR ANY INACCURACY, ERROR, OMISSION, OR
LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY DELAYS OR INTERRUPTIONS OF
SUBSCRIPTION PRODUCT(S), SERVICES OR DOCUMENTATION.
This Agreement shall not prevent the DTEN from entering into similar agreements with third parties, or from
independently developing, using, selling or licensing documentation, products and/or services which are similar
to those provided under this Agreement.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification by DTEN.
DTEN shall defend End User against any claim, demand, suit, or proceeding made or brought against End User by a
third party alleging that the use of Subscription Product(s) or Services infringes or misappropriates the
intellectual property rights of a third party (“Claim”) and shall indemnify End User for any damages finally
awarded against End User, including reasonable attorney’s fees incurred by End User in connection with any such
Claim; provided, that End User: 1) promptly gives DTEN written notice of the Claim; 2) gives DTEN sole control
of the defense and settlement of the Claim (provided that DTEN may not settle any Claim unless the settlement
unconditionally releases End User of all liability); and 3) provides all reasonable assistance at DTEN’s
DTEN will have no obligation under this section for any Claim to the extent that it arises out of or is based
upon: 1) use of Subscription Product(s) or Services in combination with other products or services if such
infringement or misappropriation would not have arisen but for such combination; 2) use of Subscription
Product(s) or Services by End User for purposes not intended or outside the scope of the license granted to End
User; 3) End User’s failure to use Subscription Product(s) or Services in accordance with instructions provided
by DTEN, if the infringement or misappropriation would not have occurred but for such failure; or 4) any
modification of Subscription Product(s) or Services not made or authorized in writing by DTEN where such
infringement or misappropriation would not have occurred absent such modification.
If End User’s use of Subscription Product(s) or Services is, or in DTEN’s reasonable opinion is likely to
become, enjoined or materially diminished as a result of a Claim, then DTEN will, at its sole option, either: 1)
procure the continuing right of End User to use the Subscription Product(s) or Services; 2) replace or modify
Subscription Product(s) or Services in a functionally equivalent manner so that it no longer infringes; or 3)
terminate this Agreement and refund to End User all unused subscription fees paid by End User with respect to
such Subscription Product(s) or Services. This section states DTEN’s sole and exclusive liability, and End
User’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party
intellectual property right by any Subscription Product(s) or Services.
8.4 Indemnification by End User.
End User shall defend DTEN against any claim made or brought against DTEN by a third party alleging that End
User Data, or End User’s use of the Subscription Product(s) or Services is in violation of this Agreement,
infringes or misappropriate the intellectual property rights of a third party or violates applicable law, and
shall indemnify DTEN for any damages finally awarded against, and for reasonable attorney’s fees incurred by,
DTEN in connection with any such claim; provided, that DTEN: 1) promptly gives End User written notice of the
claim; 2) gives End User sole control of the defense and settlement of the claim (provided that End User may not
settle any claim unless the settlement unconditionally releases DTEN of all liability); and 3) provides to End
User all reasonable assistance, at End User’s expense.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained
in this Agreement, DTEN does not have any liability towards End User for any damages caused by: 1) the use or
inability to use any Software, Documentation, Subscription Product(s) or Services; 2) the cost of procurement of
substitute goods Subscription Product(s) and/or Services; 3) accuracy of data transferred to any other software
or service; or 4) instances in which End User Data stored or communicated through Subscription Product(s) or
Services is accessed by third parties through illegal or illicit means; including without limitation situations
in which End User Data is accessed through the exploitation of security gaps, weaknesses or flaws that may
exist. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOST PROFITS OR REVENUES, OR FOR
ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE
9.2 Cap on Liability.
EXCEPT FOR LIABILITY ARISING OUT OF SECTION 8, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION PRODUCT (S) OR SERVICES FEES PAID BY END USER IN THE 12 MONTHS PRECEDING
THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL NOT LIMIT END USER’S PAYMENT OBLIGATIONS UNDER THIS
9.3 Independent Allocations of Risk.
10.1 Export Regulation.
The Subscription Product(s), Services and Documentation, and any related technical data included with, or
contained in, such Subscription Product(s), Services and Documentation, and any products utilizing any such
Subscription Product(s), Services and Documentation or technical data (collectively, "Regulated Goods") may be
subject to US export control laws and regulations, including the Export Administration Regulations and the
International Traffic in Arms Regulations. The End User shall not, and shall not permit any third parties to,
directly or indirectly, export, reexport, or release any Regulated Goods to any jurisdiction or country to
which, or any party to whom, the export, reexport, or release of any Regulated Goods is prohibited by applicable
federal or foreign law, regulation, or rule. The End User shall be responsible for any breach of this Section by
its, and its successors' and permitted assigns', parent, Affiliates, employees, officers, directors, customers,
agents, or other third parties.
The Parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of
the Agreement, including, without limitation, all provisions concerning infringement, confidentiality and
nondisclosure, or limitation on permitted use of the Subscription Product(s). The Parties further agree that, in
the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly,
either Party shall have the right to seek injunctive relief or similar equitable remedies to enforce such
Party's rights under the pertinent provisions of the Agreement, without limiting its right to pursue any other
legal remedies available to it
Upon request by DTEN, End User agrees to reasonably cooperate with DTEN's auditors to confirm End User’s
compliance with the terms and conditions of this Agreement and any associated Order(s).
End User agrees to allow DTEN to state that the End User is a customer on its website and marketing materials.
DTEN may issue press releases, white papers and case studies in text and video that references the End User and
its subscriptions, subject to the End User’s prior review and written approval.
Nothing in this Agreement is intended to or shall operate to create a partnership, franchise, joint venture,
agency or employment relationship between the Parties, or authorise either Party to act as agent for the other,
and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in
any way (including, but not limited to, the making of any representation or warranty, the assumption of any
obligation or liability and the exercise of any right or power).
The End User shall not, without the prior written consent of the DTEN, assign, transfer, charge, sub-contract or
deal in any other manner with all or any of its rights or obligations under this Agreement. The DTEN may at any
time assign, delegate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights
or obligations under this Agreement.
The Parties confirm that it is their wish that this Agreement, as well as other documents relating to this
Agreement, including all notices, have been and will be drawn up in the English language only.
Except as otherwise provided herein, all notices to the Parties shall be sent to the addresses listed on the
Order. All notices must be made either via email, conventional mail, or overnight courier. Notice sent via
conventional mail, using registered mail, is deemed received four business days after mailing. Notice sent via
email or overnight courier is deemed received the second day after having been sent. DTEN may broadcast notices
or messages through the Subscription Product or Services or by posting notices or messages on DTEN’s website to
inform End User of changes to the Subscription Product or Services, or other matters of importance.
10.9 Force Majeure
Except for payment obligations for Services rendered, neither Party shall be liable in damages or have the right
to terminate this Agreement or any Order for any delay or default in performing hereunder if such delay or
default is caused by conditions beyond its control including but not limited to acts of god, government
restrictions (including the denial or cancellation of any export of other necessary license), wars,
insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected
(including mechanical, electronic, internet service provider, or communications failure).
The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The
failure of any Party to insist on strict performance of any covenant or obligation in accordance with this
Agreement will not be a waiver of such Party’s right to demand strict compliance in the future.
Subject to the limitations and other provisions of this Agreement, provisions relating to access rights and
usage limitations, warranties and disclaimers, intellectual property, confidentiality and security, mutual
indemnification, limitation of liability contained herein, as well as any other provisions in this Agreement
that by its nature is intended to survive, shall survive the expiration or earlier termination of this Agreement
in order to give proper effect to its intent.
10.12 Choice of Law.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of
or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in
accordance with, the laws of the State of California, United States of America (including its statutes of
limitations and Cal. Civ. Code § 1646.5), without giving effect to the conflict of law provisions thereof to the
extent such principles or rules would require or permit the application of the laws of any jurisdiction other
than those of the State of California. The Parties disclaim application of the United Nations Convention on
Contracts for the International Sale of Goods.
10.13 Choice of Forum.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or
proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement,
including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated
transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum
other than the courts of located in Northern District of California. Each Party irrevocably and unconditionally
submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or
proceeding only in courts located in Northern District of California. Each Party agrees that a final judgment in
any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
10.14 Entire Agreement.
This Agreement, Order(s) and Documentation, constitute the entire agreement between the parties hereto regarding
End User’s use of Subscription Product(s) and Services, and supersedes all prior orders, purchase orders of the
customer, email communications, other agreements, representations, arrangements and understandings, whether oral
or written, express or implied, with respect to the subject matter governed by this Agreement. In the event of
conflict or inconsistency among the following documents, the order of precedence is: 1) Agreement, 2) Order, and
3) Documentation. These terms and conditions apply to future purchases of Subscription Product(s) and Services
by End User from DTEN. DTEN may unilaterally update this Agreement from time-to-time. In the event DTEN believes
such change is a material alteration of these terms, DTEN will provide End User with written notice describing
such change. End User’s continued use of the Subscription Product(s) or Services following such updates
constitutes End User’s acceptance of the same.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement. Upon
a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in
good faith to modify this Agreement to give effect to the original intent of the Parties as closely as possible
in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest
means any entity that, directly or indirectly, controls, is controlled by or is under common control with such
entity (but only for so long as such control exists), where "control" means the ownership of more than 50% of
the outstanding shares or securities representing the right to vote in the election of directors or other
managing authority of such entity.
means these Product Use - Terms and Conditions, including the Order and End User Support Services Appendix.
means DTEN Inc.
means the date on which the relevant Order is effective.
“End User Data”
means data and information submitted by End User in connection with
its use of the Subscription Product(s) or Services. End User expressly agrees not to provide any personally
identifiable information or sensitive information to DTEN.
“End User or You”
means the entity signing this Agreement or the Order.
means any written or electronic documentation, images, video or text
specifying the functionality of the Subscription Product(s) or Services that is provided or made available by
DTEN to the End User or Users.
means any and all hardware specified in an Order, but excludes Software
installed in such Hardware.
means any file, script, agents, or programs intended to do harm
such as a virus, malware, Trojan horse, time bomb, worm, or other similar harmful software.
means the order End User has placed with a third party distributor or
reseller for the Subscription Product(s) and/or Services. The Order will be signed as between End User and the
third party distributor or reseller, and subject to DTEN’s approval such Order shall be given full effect.
or “Support Services” means the support and maintenance services provided
by DTEN for the Subscription Product(s) and other hardware agreed in the relevant Order, this may include
on-going maintenance and technical support for the Software and/or Hardware or other hardware as agreed in the
relevant Order and End User Support Services Appendix.
means software provided by DTEN, either by download and/or access through
the internet, that allows the User to access any functionality of the Software in connection with the
Subscription Product(s) or Services.
means the DTEN products listed in each Order placed by the
End User, for clarity, Subscription Product may include both Software and Hardware, or only Software excluding
Hardware as described in the relevant Order.
means the period that End User has the right to use the
Subscription Product(s) and/or Services specified in the relevant Order including the Initial Term and any
Renewal Terms (as defined in the relevant Order).
means the limited geographic location as specified in the relevant Order.
means users authorized by End User to use the Subscription Product(s) and /or
Services as specified in the relevant Order.