BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR USING ANY DTEN SUBSCRIPTION PRODUCTS AND/OR SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN END USER CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT END USER CUSTOMER 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 SUBSCRIPTION PRODUCTS AND SERVICES.
"Customer" or "you" means the entity or individual signing the Order with DTEN Inc. ("DTEN") ("Customer," 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 Customer may purchase/subscribe Subscription Products and Services (defined below) as described in an Order.
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 agree as follows:
1. SUBSCRIPTION PRODUCTS AND RELATED SUPPORT SERVICES
1.1. Access and Use. DTEN hereby grants Customer 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.
1.2. Hardware. DTEN will provide Hardware to the Customer as specified in the relevant Order, this is only in cases where Customer has not already purchased the hardware separately. Where Hardware is part of the Subscription Product(s) as agreed in the relevant Order, such Hardware shall be owned by DTEN and Customer 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, Customer shall return the Hardware back to DTEN, subject to general wear and tear, failing which the Customer shall pay DTEN full price for the Hardware.
DTEN will not provide any Support Services for any Customer owned hardware or hardware that was purchased by the Customer 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 Customer 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) Customer 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) Customer 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 Customer 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. Customer 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 Customer or Users of any compromise of Customer 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 Customer 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). Customer 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 Customer 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 Customer to reduce any inconveniences caused by any change pursuant to this section.
1.7. Customer Data. Customer 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 Customer Data and all intellectual property rights including copyright, trademark, and trade secret rights in Customer Data are and will remain the property of Customer and/or its Affiliates. Subject to DTEN’s confidentiality obligations, Customer hereby grants to DTEN throughout the term of this Agreement and after the term as necessary for any DTEN post-termination obligations to Customer, the necessary rights or license to use Customer Data solely as necessary for DTEN to perform its obligations under this Agreement. Customer shall provide DTEN, in the form and format, and as specified by DTEN, all Customer Data reasonably required by DTEN to provide, monitor and improve the Subscription Product(s) or Services. Customer agrees that DTEN may use Customer Data to develop aggregated statistics and other information compiled from all subscribers to the Subscription Product(s) and Service. The Customer Data may be irretrievably deleted from DTEN systems on the date of expiration or termination of this Agreement or any Order. Customer 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 Customer Data that the Customer wishes to retain, DTEN will make Customer Data available for download and will offer assistance to transition Customer Data at its then prevailing rates for professional services.
Customer shall not provide any personally identifiable information or sensitive date to DTEN, and that the Customer Data may be stored on third party cloud as DTEN may determine from time to time. DTEN’s use of Customer Data shall be subject to its Privacy Policy located at: https://www.dten.com/privacy-policy.
The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
1.8. Feedback. If Customer provides any feedback to DTEN concerning the functionality or performance of Subscription Product(s) or Services, (including identifying potential errors and improvements), Customer 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 restriction.
2. Third Party Providers and Third Party Components.
2.1. Third Party Providers. The Customer 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 Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not DTEN. DTEN does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Subscription Product(s) or Services.
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 Customer’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 Customer’s sole remedy will be for DTEN to replace such Third Party Component with a functionally equivalent alternative component.
3. CUSTOMER’S RESPONSIBILITIES
To have continued use of Subscription Product(s) and receive Service, Customer agrees to provide DTEN with the following:
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 to use;
3.3. in order to provide the Subscription Product(s) and Services, including but not limited to Customer Data, security access information and configuration services;
3.4. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
3.5. carry out all other Customer responsibilities set out in this Agreement or Order(s) in a timely and efficient manner. In the event of any delays in the Customer'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 contractors 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 time;
3.9. be solely responsible for procuring, maintaining and securing its network connections and telecommunications 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 Customer's network connections or telecommunications links or caused by the internet;
3.10. Customer will be solely responsible for unpacking and installation of Subscription Product(s), including the Hardware.
4. PAYMENT TERMS
4.1. Orders and Fees. Customer will pay all undisputed amounts specified in Order(s). Unless otherwise specified in the applicable Order(s): 1) all amounts payable under this Agreement are denominated in U.S. dollars and Customer will pay all such amounts in U.S. dollars; 2) Subscription Product quantities cannot be decreased during the applicable Subscription Term; 3) purchases by Customer are not dependent on the delivery of any future functionality. DTEN will provide Customer with written notice of any increase to fees and charges at least 30 days prior to the end of any Subscription Term. For all quotations provided, prices are applicable for 30 days or such time as specified in the quotation. Orders are subject to credit approval and Customer agrees to submit such information as may be reasonably required by DTEN for the determination of credit terms.
4.2. Invoicing and Payment. The fees and charges will be invoiced upon execution of the applicable Order and, for each Renewal Term (as defined in the relevant Order), at the commencement of such Renewal Term. Unless otherwise specified on the applicable Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Fees for each Renewal Term are due on the first day of such Renewal Term. If Customer provides DTEN with credit card information, it authorizes DTEN to charge such credit card for all items on the applicable Order and for any Renewal Term fees and charges. Customer is responsible for providing complete and accurate billing and contact information and promptly notifying DTEN of any changes to such information.
4.3. Late Payments. Any undisputed amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. If any undisputed amount is not paid when due, DTEN may condition future subscription renewals and Order(s) on payment terms that are shorter than those specified in this section.
4.4. Taxes. Fees do not include any taxes, levies, duties or similar assessments of any nature including value-added, sales, use or withholding taxes (the "Taxes"). Customer is responsible for paying all Taxes under this Agreement. If DTEN has the legal obligation to pay or collect Taxes (including withholding tax) under this section, Customer shall pay such taxes unless Customer provides DTEN with a valid tax exemption certificate. Each Party is responsible for taxes assessed against it based on its income, property or employees.
4.5. Suspension. DTEN may immediately suspend Customer’s account and access to the Subscription Product and Services if (i) Customer fails to make payment due within 10 business days after DTEN has provided Customer with written notice of such failure; (ii) Customer violates this Agreement; or (iii) if reasonably required to prevent unauthorized access to Customer Data. Any suspension by DTEN of the Subscription Product(s) or Services under the preceding sentence will not relieve Customer 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) Customer 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 Customer’s breach of section 1.4 of this Agreement. If this Agreement is terminated by DTEN for cause, Customer will pay any unpaid fees covering the remainder of Subscription Term in all Orders.
5.3. Customer’s right to terminate an Order. The eligibility of Customer to terminate any given Order for convenience and receive refund for any advance fee/charges paid to DTEN pursuant such Order shall be as provided in this Section 5.3. Customer 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. Customer 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 Product(s).
(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), Customer 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. Customer 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. No refunds or credits for fees or charges will be provided by DTEN unless agreed in Section 5.3 above 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 Customer 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;
- Customer 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 Customer 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
6.1. 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, 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 Party.
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 than these.
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 Customer; 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.
7.2. Remedies. 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 Customer’s exclusive remedy and DTEN’s sole liability arising in connection with the limited warranties herein.
7.3. Disclaimers. 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.
7.4. 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 Customer against any claim, demand, suit, or proceeding made or brought against Customer 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 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.
8.2. 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 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 Customer for purposes not intended or outside the scope of the license granted to Customer; 3) Customer’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.
8.3. Remedy. If Customer’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 Customer 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 Customer all unused subscription fees paid by Customer with respect to such Subscription Product(s) or 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 Subscription Product(s) or Services.
8.4. 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 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 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.
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 Customer 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 Customer 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 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.
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 CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM WITH RESPECT TO SUCH SUBSCRIPTION PRODUCT(S) OR SERVICES FEES, RESPECTIVELY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTIONS 4 AND 5.
9.3. 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.
10. GENERAL
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 Customer 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 Customer 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.
10.2. Injunction. 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
10.3. Confirmations. Upon request by DTEN, Customer agrees to reasonably cooperate with DTEN's auditors to confirm Customer’s compliance with the terms and conditions of this Agreement and any associated Order(s).
10.4. Publicity. Customer agrees to allow DTEN to state that the Customer 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 Customer and its subscriptions, subject to the Customer’s prior review and written approval.
10.5. Relationship. 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).
10.6. Assignability. The Customer 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.
10.7. 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.
10.8. Notices. 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 Customer 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).
10.10. 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.
10.11. Survival. Subject to the limitations and other provisions of this Agreement, provisions relating to access rights and usage limitations, warranties and disclaimers, payment terms, 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 Customer’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 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 Subscription Product(s) or Services following such updates constitutes Customer’s acceptance of the same.
10.15. Severability. 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 extent possible.
11. DEFINITIONS
"Affiliates" 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.
"Agreement" means these Product Use - Terms and Conditions, including the Order and Customer Support Services Appendix.
"DTEN" means DTEN Inc.
"Commencement Date" means the date on which the relevant Order is effective.
"Customer Data" means data and information submitted by Customer in connection with its use of the Subscription Product(s) or Services. Customer expressly agrees not to provide any personally identifiable information or sensitive information to DTEN.
"Customer or You" means the entity signing this Agreement or the Order.
"Documentation" 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 Customer or Users.
"Hardware" means any and all hardware specified in an Order, but excludes Software installed in such Hardware.
"Malicious Software" 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.
"Order(s)" means Order Acceptance and Supply Contract that is agreed to by the Customer on www.dten.com.
"Services" 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 Customer Support Services Appendix.
"Software" 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.
"Subscription Product(s)" means the DTEN products listed in each Order placed by the Customer, for clarity, Subscription Product may include both Software and Hardware, or only Software excluding Hardware as described in the relevant Order.
"Subscription Term" means the period that Customer 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).
"Territory" means the limited geographic location as specified in the relevant Order.
"User" means users authorized by Customer to use the Subscription Product(s) and /or Services as specified in the relevant Order.
