DTEN Service Agreement
DTEN Service Agreement
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX ONLINE INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT CUSTOMER TO THESE TERMS AND CONDITIONS. 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 THE SERVICES.
Service. DTEN service and support plans require additional fees that are due upon the initial purchase of each Product. Any replacement Product may be added to a service or support plan as long as the Product is either new or like-new with, functionality at least equal to that of the Product being replaced. Depending on the purchased Service plan, service may include but not limited to: Consultation and Problem Resolution is provided in conjunction with Advance Replacement Support, Return for Repair, On-site Repair, and Guided Customer Self Repair.
Subscription. You agree to the subscription payment terms at the time of the order placed on the DTEN website or through a direct DTEN representative. To avoid violating the subscription terms you agree to NOT engage in the following actions with respect to the website and services:
1) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, timeshare, offer as a service or
otherwise make Product and/or Services as a subscription available for access by third parties except as
otherwise expressly authorized by DTEN in writing;
2) disassemble, reverse engineer or decompile Product and/or Service except and only to the extent authorized by applicable law;
3) copy, create derivative works based on or otherwise modify product and/or Service except as permitted in the DTEN Terms;
4) use Product and/or Service to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property rights (including the rights of publicity or privacy) without first obtaining the permission of the owner;
5) Disable DTEN software or network on Product with a subscription term.
Support. We will, at no additional cost, provide applicable standard customer support for the Services as detailed on the applicable Site and Documentation, and upgraded support, if purchased. Support for Products is dependent upon the availability of resources and materials. DTEN will use commercially reasonable efforts to make the necessary resources and materials available.
Modifications. You acknowledge that DTEN may modify the features and functionality of the Services during the Subscription Term. DTEN shall provide you with commercially reasonable advance notice of any deprecation of any material feature or functionality.
1. CONFIDENTIALITY AND SECURITY
1.1 Definition. “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. Customer’s Confidential Information includes Customer Data. DTEN’s Confidential Information includes Software, Services, Documentation and its other intellectual property. Confidential Information of each party shall include the terms and conditions of this Agreement and each Sales 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 Party.
1.2 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 than these.
1.3 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. The restrictions on the use or disclosure of any Confidential Information will not apply to any Confidential Information: (a) after it has become generally available to the public without breach of this Agreement by the Receiving Party; (b) is rightfully in the Receiving Party's possession prior to disclosure as evidenced by competent written proof; (c) is independently developed by the Receiving Party without reliance on the Confidential Information; (d) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (e) is disclosed under operation of law, but only to the extent of such disclosure as required by law. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
1.4 Acceptable Use Policy. Customer agrees not to use (or to assist or encourage anyone else to use) DTEN’s Software or Services: in a way prohibited by law, regulation, governmental order or decree; to violate the rights of others; to try to gain unauthorized access to or disrupt any service, device, data, account or network; to spam or distribute malware; in a way that could harm the Software or Services or impair anyone else’s use of the Software or Services; in any application or situation where failure of the Software or Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage; or to transmit (or receive): copyrighted material or material protected by trade secret (without the permission of the owner), obscene or threatening material, material intended to harm or that might harm minors, material meant to harass, fraudulent material or offers, forged materials, unprotected sensitive information or personal information, or traffic using forged or misleading TCP/IP header information.
1.5 If DTEN determines that Customer is in violation of this Acceptable Use Policy, DTEN will warn Customer about the violation. If Customer does not immediately comply with this Acceptable Use Policy, DTEN may terminate this Agreement.
1.6 Notification of data breach. If a substantive breach of the security of any of DTEN’s systems occurs, DTEN will notify Customer in writing, within one business day, of such breach. DTEN will take immediate action to prevent any further breach of its security, and such action will take place as soon as possible after detection of such breach. DTEN will then evaluate and identify further action needed to prevent similar breaches of its security and implement such a long-term solution a reasonable period of time after the detection of the breach.
2. WARRANTIES AND DISCLAIMERS
2.1 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) it shall use industry-standard safeguards to protect Customer Data; 2) the Services will perform materially in accordance with the Documentation; 3) DTEN will not materially decrease overall functionality of the Services; 4) the Services do not infringe or otherwise violate any intellectual property rights; 5) the Software is free from all liens or other encumbrances; 6) the Services are free of Malicious Software; and 7) it will not use any open-source software in a manner that obligates Customer or DTEN to disclose, make available, offer or deliver the source code of any Software owned by or licensed to Customer to a third party.
2.2 Disclaimers. EXCEPT AS PROVIDED IN SECTION 7 a), 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 SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH 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 FDTENLURES, DELAYS, OR INTERRUPTIONS OF SERVICES, SOFTWARE OR DOCUMENTATION.
3. MUTUAL INDEMNIFICATION
3.1 Indemnification by DTEN. DTEN shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of Services infringes or misappropriates the intellectual property rights of a third party (“Claim”) and shall indemnify Customer for any damages finally awarded against Customer, including reasonable attorney’s fees incurred by Customer in connection with any such Claim; provided, that Customer: 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 Customer of all liability); and 3) provides all reasonable assistance at DTEN’s expense.
3.2 Exclusions. 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 Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; 2) use of Services by Customer for purposes not intended or outside the scope of the license granted to Customer; 3) Customer’s failure to use 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 Services not made or authorized in writing by DTEN where such infringement or misappropriation would not have occurred absent such modification.
3.3 Remedy. If Customer’s use of 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 Customer to use the Services; 2) replace or modify Services in a functionally equivalent manner so that it no longer infringes; or 3) terminate this Agreement and refund to Customer all unused subscription fees paid by Customer with respect to such Services. This section states DTEN’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by any Services.
3.4 Indemnification by Customer. Customer shall defend DTEN against any claim made or brought against DTEN by a third party alleging that Customer Data, or Customer’s use of the 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 Customer written notice of the claim; 2) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases DTEN of all liability); and 3) provides to Customer all reasonable assistance, at Customer’s expense.
4. LIMITATIONS OF LIABILITY
4.1 Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in this Agreement, DTEN does not have any liability towards Customer for any damages caused by 1) the use or inability to use any Software, Documentation or Services; 2) the cost of procurement of substitute goods and Services; 3) accuracy of data transferred to any other software or service; or 4) instances in which Customer Data stored or communicated through Services is accessed by third parties through illegal or illicit means; including without limitation situations in which Customer 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 LAW.
4.2 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 FEES PDTEND BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTIONS 4 AND 5.
4.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by DTEN to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
5.1 Relationship. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, or employment relationship between the parties.
5.2 Assignability.DTEN reserves the right to assign its right and obligations under this Agreement to a qualified third party designated by DTEN without notice to you. In the event of such an assignment, DTEN will no longer be responsible for any performance obligations under this Agreement or any other liability associated with this Agreement.
5.3 Language. 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. Les parties aux presentes conferment leur volonté que cette convention, de meme que tous les documents, y compris tout avis, qui s’y rattachent, soient redigés en langue anglaise.
5.4 Notices. Except as otherwise provided herein, all notices to the parties shall be sent to the addresses listed on the Sales 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 Services or by posting notices or messages on DTEN’s web site to inform Customer of changes to the Services, or other matters of importance.
5.5 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 Sales 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 licenses), 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).
5.6 Waiver. 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.
5.7 Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the enforceability of the remaining portions.
5.8 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the state of Texas. Any dispute or disagreement arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located within Travis County Texas and both parties hereto hereby irrevocably consent to venue and personal jurisdiction in such courts.
5.9 Entire Agreement. This Agreement and the exhibits or attachments, if any, constitute the entire agreement between the parties hereto regarding Customer’s use of Services and supersedes all prior agreements, representations, arrangements, and understandings, whether oral or written, express or implied, with respect to the subject matter. In the event of conflict or inconsistency among the following documents, the order of precedence is 1) Sales Order, 2) Agreement, 3) Documentation. These terms and conditions apply to future purchases of products and Services by Customer 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 Customer with written notice describing such change. Customer’s continued use of the Services following such updates constitutes Customer’s acceptance of the same.
5.10 Miscellaneous. If any provision of this Agreement is void or unenforceable, the parties agree to delete it and agree that the remainder of the Agreement will continue to be in effect. DTEN is not liable for failure or delay in performance due to any cause beyond its control. If DTEN’s ability to render Service is impaired by circumstances beyond DTEN’s control, DTEN may terminate this Agreement, in which event, provided that the circumstances resulting in DTEN’s impaired ability to provide Service did not result from your actions or inaction, you will receive a refund for any unused portion of your Service term for which you have paid. Neither DTEN nor you may institute any action in any form arising out of this Agreement more than eighteen (18) months after the cause of action have arisen, or in the case of nonpayment, more than eighteen (18) months from the date of last payment.