Terms of Service (TOS)

Please review the following TERMS and CONDITIONS carefully before using and/or installing services and software provided by netQ , via WEB-SITE, or ANOTHER MEDIUM or THROUGH ANOTHER DELIVERY MECHANISM. By subscribing or using our Services or paying a subscription fee, you indicate your ACCEPTANCE of such TERMS and CONDITIONS, which constitute the SUBSCRIPTION AGREEMENT (“AGREEMENT”) BETWEEN YOU and NETQ LLC. (“netQ”) The TERMS and CONDITIONS of this AGREEMENT are subject to change without notification. The latest and most up-to-date AGREEMENT will be posted here.

[box type=”info”] IF YOU WISH TO PRINT OUT THIS SUBSCRIPTION AGREEMENT, YOU SHOULD HIGHLIGHT THIS TEXT, RIGHT-CLICK, SELECT “COPY” THEN “PASTE” IT INTO A DOCUMENT IN YOUR WORD PROCESSING PROGRAM.[/box]

Welcome to netQ – Private vCloud Services!

This NETQ Services Agreement (the “Agreement”) is entered into by and between NETQ LLC., a Colorado Limited Liability Company, with offices at 155 West Loma Circle, Castle Rock, Colorado, 80108  (“NETQ”) and the entity agreeing to these terms (“Customer”).

This Agreement is effective as of the date you “Accept the Terms” as outlined in Section 1 below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not “Accept the Terms” as outlined in Section 1 below. This Agreement governs Customer’s access to and use of the Services.

  1. Accepting the Terms.
    • 1.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
    • 1.2 You can accept the Terms by:
      • (a) signing the “NETQ Subscription Form”.
      • (b) actually using the Services. In this case, you understand and agree that NETQ will treat your use of the Services as acceptance of the Terms from that point onwards.
  2. Services.
    • 2.1 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where NETQ stores and processes its own information of a similar type. NETQ has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, to protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data. As part of providing the Services, NETQ may transfer, store and process Customer Data in the United States or any other country in which NETQ or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
    • 2.2 Modifications.
      • (a) To the Services. NETQ may make commercially reasonable changes to the Services, from time to time. If NETQ makes a material change to the Services, NETQ will inform Customer, provided that Customer has subscribed with NETQ to be informed about such change.
      • (b) To URL Terms. NETQ may make commercially reasonable changes to the URL Terms from time to time. If NETQ makes a material change to the URL Terms, NETQ will inform Customer by either sending an email to the Notification Email Address on your NETQ Subscription. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify NETQ via your designated NETQ Account Manager within thirty days after receiving notice of the change. If Customer notifies NETQ as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services Term for the affected Services. If the affected Services are renewed, they will be renewed under NETQ’s then current URL Terms.
    • 2.3 Customer Domain Name Ownership. Prior to providing the Services, NETQ may verify that Customer owns or controls the Customer Domain Names. If Customer does not own, or control, the Customer Domain Names, then NETQ will have no obligation to provide Customer with the Services.
  3. Customer Obligations.
    • 3.1 Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. NETQ may make new applications, features or functionality available from time to time through the Services, the use of which may be contingent upon Customer’s agreement to additional terms. Customer agrees that its use of the Domain Service is subject to its compliance with the Domain Service Terms.
    • 3.2 Aliases. Customer is solely responsible for monitoring, responding to, and otherwise processing emails sent to their “abuse” and “postmaster” aliases for the Customer Domain Names, but NETQ may monitor emails sent to these aliases for Customer Domain Names to allow NETQ to identify Services abuse.
    • 3.3 Customer Administration of the Services. Customer may specify one or more Administrators through the email Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that NETQ’s responsibilities do not extend to the internal management or administration of the Services for Customer and that NETQ is merely a data-processor.
    • 3.4 End User Consent. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (a) Customer’s access, monitoring, use and disclosure of this data and NETQ providing Customer with the ability to do so and (b) NETQ to provide the Services.
    • 3.5 Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. Customer will promptly notify NETQ of any unauthorized use of, or access to, the Services of which it becomes aware.
    • 3.6 Restrictions on Use. Unless NETQ specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws.
    • 3.7 Third Party Requests. Customer is responsible for responding to Third Party Requests. NETQ will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact NETQ only if it cannot reasonably obtain such information.
  4. Provision of the Services by NETQ.
    • 4.1 NETQ may have subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing the Services to you on behalf of NETQ itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to Customer.
    • 4.2 NETQ is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which NETQ provides may change from time to time without prior notice to you.
    • 4.3 As part of this continuing innovation, you acknowledge and agree that NETQ may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at NETQ’s sole discretion, with (30) days written notice to you via email or Certified Postal carrier to the last email address or Postal address you provided us. It is Customers responsibility to provide us with your latest and most up-to-date contact information. You may stop using the Services at any time but must provide (30) days written notice to us via email or Certified Postal carrier.  Depending on the service provided, early termination fees may apply, and are listed on your “NETQ Subscription Form”.
    • 4.4 Customer acknowledges and agrees that NETQ may have set fixed upper limits on the number of transmissions or the amount of bandwidth you may use, send or received through the Services and on the amount of storage space used for the provision of any Service. These limits are set as part of the NETQ subscription based on the services you have purchased.
  5. Your passwords and account security.
    • 5.1 Customer agrees and understands that Customer is responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
    • 5.2 Accordingly, Customer agrees that Customer will be solely responsible to NETQ for all activities that occur under your account.
    • 5.3 If Customer becomes aware of any unauthorized use of your password or of Customers account, Customer agrees to notify NETQ immediately. NETQ will take the necessary and prudent action to secure the Customer account and our systems up to and including deactivation of the existing account, and solely in NETQ’s judgment: any repair or reconfiguration as deemed necessary followed by a re-issuance of any new login information, passwords or other account changes.
  6. Software, Customer Premise Equipment and Your Data
    • 6.1 The Software which you use may automatically download and install updates from time to time from NETQ. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Customer agrees to receive such updates (and permit NETQ to deliver these to you) as part of your use of the Services.
    • 6.2 Customer Premise Equipment (“CPE”) and Data where applicable
      • (a) As part of some of the Services NETQ offers, and from time to time it will be necessary for NETQ to place equipment and/or software on Customer premises to facilitate its Services. The equipment will be clearly marked with a NETQ asset tag for identification. This equipment and/or software is the sole property of NETQ and is used to provide Customer Services. Any CPE placed at Customer premises will be listed on the Subscription form(s) and subject to the terms and conditions here-in.
      • (b) Customer hereby permits NETQ to place its equipment on Customer premises in a mutually agreed location and in a manner consistent with the applicable and necessary operating conditions and limitations of said equipment, to include but not be limited to, proper cooling, access to appropriate electrical power, and reasonable service access by a support technician.
      • (c) Customer hereby permits NETQ reasonable access to its CPE to perform maintenance or other work, as necessary for NETQ to be able to provide its services to Customer.
      • (d) Any move or change in the location of this equipment will be performed by a NETQ support technician. Customer agrees to notify NETQ in writing a minimum of 30 business days prior to the move to allow NETQ to schedule its technician(s) and to view the new location as part of a new mutually agreed upon location.
    • 6.3 Replacement policy for our Customer Premise Equipment (“CPE”) and Data where applicable.
      • (a) In the event of a CPE failure, and in its sole discretion, but in a timely manner, NETQ will repair or replaced the CPE per the signed “NETQ Subscription Form” appropriate for the Service being provided.
      • (b) NETQ will perform, in a timely manner, and per the “NETQ Subscription Form” any necessary restoration of Customer data and services provided by the CPE to Customer from the devices’ most recent backup and/or imaged state.
  7. Down-Time and Maintenance
    • 7.1 From time to time and at the reasonable discretion of NETQ; NETQ may require and intentionally cause Down Time to perform necessary Maintenance and/or updates or improvements to its network environment, or as reasonably required in connection with providing its Services.
    • 7.2 Down-Time may occur from time to time during Customers regular business hours.
    • 7.3 NETQ’s Regular Maintenance Schedule is published on the NETQ website.
  8. Billing and Payment.
    • 8.1 Billing. Customer may elect one of the following billing options when placing its order for the Services
      • (a) Flexible Plan. If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. NETQ will bill Customer: (i) Fees based upon Customer’s daily usage of the Services during the preceding month; and (ii) monthly in advance for its use of the Services. NETQ will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees. Customer may pay for the Services using either of the payment options listed below.
      • (b) Quarterly Plan. If Customer selects this option, Customer will be committed to purchasing the Services from NETQ on a per quarter term, and in exchange will receive a discount on the Services which will be reflected in Customer’s quarterly payment. NETQ will still bill Customer quarterly in advance for its use of the Services when Customer has a quarterly commitment for the Services with NETQ. Customer may pay for the Services using the payment options listed below.
      • (c) Annual Plan. If Customer selects this option, Customer will be committed to purchasing the Services from NETQ for an annual term, and in exchange will receive a discount on the Services which will be reflected in Customer’s monthly payment. NETQ will still bill Customer monthly in advance for its use of the Services when Customer has an annual commitment for the Services with NETQ. Customer may pay for the Services using the payment options listed below.
    • 8.2 Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.
      • (a) Credit Card or Debit Card.  Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment is due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) NETQ will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.
      • (b) Other Forms of Payment.  NETQ may enable other forms of payment by making them available through our website or by contacting your NETQ sales professional directly. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
      • (c) Invoice.  Payment is due NET 15 DAYS from the date of invoice. Any account that is more than 10 business days past due will be considered Delinquent and subject to the Terms below and a $250 re-activation fee. It is your responsibility to provide accurate and up-to-date billing information to NETQ by contacting us using the address on your NETQ invoice.
    • 8.3 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by NETQ in collecting such delinquent amounts, except where such delinquent amounts are due to NETQ’s billing inaccuracies.
    • 8.4 Suspension for Non-Payment.
      • (a) Automatic Suspension. Customer will have ten (10) days to pay NETQ delinquent Fees. If Customer does not pay NETQ all delinquent Fees within 10 days, NETQ will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays NETQ all outstanding Fees.
      • (b) During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, NETQ will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer has a quarterly or annual commitment to NETQ for the Services, NETQ will continue to charge Customer monthly Fees during Customer’s suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.
      • (c) Suspension – First 30 days. If Customer has not payed NETQ all delinquent Fees within the aforementioned 10 days, NETQ will continue to suspend Customer’s use of the Services for an additional 20 days or until Customer has paid all outstanding Fees in order to resume its use of the Services.
      • (d) Suspension – Exceeding 30 days. If payment has not been recieved after the inital suspention period of 30 days the Customer will be responsible to pay NETQ all delinquent Fees within the subsequent thirty day period including a $250 re-activation fee in order to resume its use of the Services.
      • (e) Termination After Suspension. If Customer remains suspended for non-payment for more than sixty (60) days, NETQ may terminate Customer for breach pursuant to Section 17.
    • 8.5 Taxes. Customer is responsible for any Taxes, and Customer will pay NETQ for the Services without any reduction for Taxes. If NETQ is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides NETQ with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to NETQ, Customer must provide NETQ with an official tax receipt or other appropriate documentation to support such payments.
  9. Technical Support Services.
    • 9.1 By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to NETQ.
    • 9.2 By NETQ. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to NETQ in accordance with the TSS Guidelines. NETQ will provide TSS to Customer in accordance with the TSS Guidelines.
  10. Technical support WAIVER
    • 10.1 NETQ LLC uses proprietary and 3rd party software (the “NETQ Software”) that has been or will be downloaded to your computer to allow a remote control session between an operator and a computer or computers on your network as part of providing technical support to Customer. By accepting the Terms, you are authorizing a remote operator to download the necessary Software to your computer and Customer understands that the permitted operator will have partial or fully unrestricted access to Customers computer or computers on your network as well as the contents on your network. Additionally, software created by other vendors may also be downloaded and executed as needed on your computer to resolve certain issues during the course of fulfilling Customers technical support request.
    • 10.2 The operator will then be able to transfer files without additional authorization from you. If you are in any way unsure about the identity, technical ability or trustworthiness of the operator about to download the NETQ Software and do not wish the operator to have access to your computer, close your session with that operator and contact NETQ immediately.
    • 10.3 This Agreement does not grant any rights to you in the NETQ Software and you agree not to use, copy, modify, enhance, merge, reverse engineer, reverse assemble, decompile, or in any way alter the NETQ Software or any copy, adaptation, transcription, or merged portion thereof or otherwise attempt to derive source code there-from.  Customer also hereby acknowledges and agrees that NETQ may verify the use of the NETQ Software through online verification procedures which may include support session time logging. In addition, you acknowledge that the NETQ Software provides for trouble support notification to NETQ in the event of a NETQ Software failure.
    • 10.4 Customer grants NETQ reasonable access to account(s) related to providing you Services including their contents, as stated above and/or to respond to service and support requests or technical issues and to act as your technical support representative in order to fulfill and resolve those requests, including but not limited to DNS and MX records,  or other moves, additions, or changes, and the access to those provider accounts who host Customer records in order to affect the moves, additions or changes.
    • 10.5 In acceptance of a remote support connection session and/or on-site technical support requested by Customer, by an authorized NETQ technical support representative: Customer grants NETQ access to your computer and computer systems which includes but is not limited to the viewing of your computer and any content or data therein in order to fulfill Customer support request.
    • 10.6 Customer confirms and warrants to NETQ that you have all the rights, power and authority necessary to grant the aforementioned access and authority.
  11. Suspension.
    • 11.1 Of End User Accounts by NETQ. If NETQ becomes aware of an End User’s violation of the Agreement, then NETQ may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with NETQ’s request to suspend an End User Account, then NETQ may do so. The duration of any Suspension by NETQ will be until the applicable End User has cured the breach which caused the Suspension.
    • 11.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then NETQ may automatically suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If NETQ suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, NETQ will provide Customer the reason for the Suspension as soon as is reasonably possible.
  12. Confidential Information.
    • 12.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
    • 12.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
    • 12.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
  13. Intellectual Property Rights; Brand Features.
    • 13.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and NETQ owns all Intellectual Property Rights in the Services.
    • 13.2 Display of Brand Features. NETQ may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services), and only within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. NETQ may also display NETQ Brand Features on the Service Pages to indicate that the Services are provided by NETQ. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
    • 13.3 Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
  14. Publicity. Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent.
  15. Representations, Warranties and Disclaimers.
    • 15.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). NETQ warrants that it will provide the Services in accordance with the applicable SLA.
    • 15.2 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. NETQ MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.
  16. Term
    • 16.1 Agreement Term. This Agreement will remain in effect for the Term.
    • 16.2 Services Term and Purchases During Services Term. NETQ will provide the Services to Customer during the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of that Services Term
    • 16.3 Renewal.
      • (a) With a Flexible Plan. With a flexible plan Customer is not committed to purchase the Services for a pre-defined term, but pays for the Services on a monthly basis. As a result, there is no renewal event for the flexible plan. Rather, NETQ will simply continuing billing Customer Fees based upon Customer’s daily usage of the Services during the preceding month, and Customer can cancel their service at any time.
      • (b) With an Quarterly or Annual Plan. At the end of each Services Term, the Services (and all End User Accounts previously purchased) will automatically renew for an additional quarterly or annual Services Term. If Customer wants to change to a Flexible Plan, then Customer must change the renewal by contacting NETQ and signing a new netQ Subscription Form to reflect this change before their quarterly or annual commitment has ended.
      • (c) Generally. Customer may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed, but no less than the minimum number required in the base service to NETQ via your designated NETQ Account Manager. Customer will continue to pay NETQ the then-current Fees for each renewed End User Account unless Customer and NETQ mutually agree otherwise. If NETQ does not want the Services to renew, then it will provide Customer written notice to this effect at least fifteen days prior to the end of the then current Services Term. This notice of non-renewal will be effective upon the conclusion of the then current Services Term.
    • 16.4 Requesting End User Accounts. Customer may request End User Accounts by: (i) notifying its designated NETQ Account Manager; or (ii) ordering End User Accounts via your designated NETQ Account Manager.
    • 16.5 Revising Rates. NETQ may revise its rates for the following Services Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Services Term.
  17. Termination.
    • 17.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
    • 17.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section);  (ii) If a Customer is on an annual plan and terminates the Agreement prior to the conclusion of its quarterly or annual plan, NETQ will bill Customer, and Customer is responsible for paying NETQ, for the remaining unpaid amount of Customer’s quarterly or annual commitment.
    • 17.3 Effects of Termination – Customer Data. (i) NETQ will provide Customer access to, and the ability to export, the Customer Data during the 60 day period from the point at which the accout was Suspend or the Customer has agreed to terminate the account at NETQ’s then-current rates for the applicable Services; (ii) after the 60 day period, NETQ will delete the Customer’s Services and Data by removing pointers to it on NETQ’s active and replication servers and overwriting it over time through our normal backup attrition/overwrite processes; and (iii) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.
  18. Indemnification.
    • 18.1 By Customer. Customer will indemnify, defend, and hold harmless NETQ from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the Acceptable Use Policy.
    • 18.2 By NETQ. NETQ will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that NETQ’s technology used to provide the Services or any NETQ Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall NETQ have any obligations or liability under this Section arising from: (i) use of any Services or NETQ Brand Features in a modified form or in combination with materials not furnished by NETQ, and (ii) any content, information or data provided by Customer, End Users or other third parties.
    • 18.3 Possible Infringement.
      • (a) Repair, Replace, or Modify. If NETQ reasonably believes the Services infringe a third party’s Intellectual Property Rights, then NETQ will: (a) obtain the right for Customer, at NETQ’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
      • (b) Suspension or Termination. If NETQ does not believe the foregoing options are commercially reasonable, then NETQ may suspend or terminate Customer’s use of the impacted Services. If NETQ terminates the impacted Services, then NETQ will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.
    • 18.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
  19. Limitation of Liability.
    • 19.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
    • 19.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO NETQ HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    • 19.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
  20. Miscellaneous.
    • 20.1 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
    • 20.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
    • 20.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
    • 20.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
    • 20.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
    • 20.6 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
    • 20.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
    • 20.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    • 20.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
    • 20.10 Governing Law. This Agreement is governed by California law, excluding that state’s choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.
    • 20.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
    • 20.12 Survival. The following sections will survive expiration or termination of this Agreement: Section 8.2, 12, 13, 17.2, 18, 19, 20, and 21
    • 20.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
    • 20.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with NETQ to receive the Services, the physical agreement will override this online Agreement.
    • 20.15 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
  21. Definitions.
    • Acceptable Use Policy” means the acceptable use policy for the Services available at http://www.netq.com/aup/ or such other URL as NETQ may provide.
    • Account Manager” means the NETQ business person working with Customer regarding Customer’s purchase of the Services.
    • Admin Account(s)” means the administrative account(s) provided to Customer by NETQ for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which NETQ will provide to Customer.
    • Admin Console” means the online tool provided by NETQ to Customer for use in reporting and certain other administration functions.
    • Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
    • Ads” means online advertisements displayed by NETQ to End Users.
    • Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
    • Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
    • Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer’s Confidential Information.
    • Customer Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
    • Customer Domain Names” mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Page.
    • Domain Service” means a service provided by NETQ to Customer purely for Customer’s convenience, where Customer may, through a NETQ-provided interface, register domain names through, or transfer domain names to, Registrar Partners (as defined in the Domain Service Terms).
    • Domain Service Terms” means the terms at: http://www.netQ.com/company/dst/, or other such URL as may be provided by NETQ.
    • Emergency Security Issue” means either: (a) Customer’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer’s use of the Services; or (iii) the NETQ network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
    • End Users” means the individuals Customer permits to use the Services.
    • End User Account” means a NETQ-hosted account established by Customer through the Services for an End User.
    • Export Control Laws” means all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
    • Fees” means the amounts invoiced to Customer by NETQ for the Services as described in an Order Page.
    • Help Center” means the NETQ help center accessible at http://support.netQ.com/ , or other such URL as NETQ may provide.
    • High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
    • Initial Services Term” means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Page.
    • Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
    • Notification Email Address” means the email address designated by Customer to receive email notifications from NETQ. Customer may change this email address through the Admin Console.
    • Order Page” means the online order page Customer completes in signing up for the Services, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names.
    • Purchase Order” means a Customer issued purchase order.
    • Service Commencement Date” is the date upon which NETQ makes the Services available to Customer, and will be within one week of NETQ’s receipt of the completed Order Page, unless otherwise agreed by the parties.
    • Service Pages” mean the web pages displaying the Services to End Users.
    • Services” means the NETQ Apps Core Services (e.g. NETQ Apps Premier Edition or NETQ Apps for Business) provided by NETQ and used by Customer under this Agreement. The Services are as described here: http://www.netQ.com/user_features.html, or other such URL as may be provided by NETQ.
    • Services Term” means the Initial Services Term and all renewal terms for the applicable Services.
    • SLA” means the Service Level Agreement located here: http://www.netQ.com/sla.html, or such other URL as NETQ may provide.
    • Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
    • Taxes” means any duties, customs fees, or taxes (other than NETQ’s income tax) associated with the sale of the Services, including any related penalties or interest.
    • Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.
    • Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
    • TSS” means the technical support services provided by NETQ to the Administrators during the Term pursuant to the TSS Guidelines.
    • TSS Guidelines” means NETQ’s technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL:http://www.netq.com/tss/ or such other URL as NETQ may provide.
    • URL Terms” means the “Acceptable Use Policy,” the “Domain Service Terms,” the “SLA,” and the “TSS Guidelines.”

December 2012