BEFORE USING THE SERVICES PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY ENTITY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”). PURSUANT TO THESE TERMS, CUSTOMER SHALL HAVE THE RIGHT TO USE THESE SERVICES. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AGREEMENT BETWEEN CUSTOMER AND NETIVITY INC., ITS AFFILIATES AND SUBSIDIARIES (“NETIVITY”), EFFECTIVE AS OF THE DATE OF CUSTOMER’S EXECUTION OF THE ORDER FORM.
These Terms and Conditions of Service govern and apply to Customer’s use of the Services and Equipment provided by us as well as Customer’s access to Netivity’s website (the “Website”).
1.0 Installation, Initiation and Service. Netivity will begin installation, initiation, and Service only after Netivity receives and accepts the following: (1) a duly executed Order Form; and (2) any amounts payable in advance in accordance with the applicable Order Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by Netivity with respect to future functionality or features.
1.1 Service Fees. Customer agrees to pay all monthly service charges, installation charges, set-up charges, usage- based charges, rental fees and other charges and fees (collectively, “Service Fees”) agreed to in each Order Form in the manner indicated
1.2 Invoicing. Customer will be invoiced a month in advance for recurring charges and in arrears for any goods or services requested by Customer. Netivity will begin charging for all Services on the Order Form no later than the Service Activation Date. The “Service Activation Date” for a Customer shall be the first day of service. Services shall be deemed accepted by Customer on the Service Activation Date. Netivity will notify Customer in accordance with the information provided by Customer or in Netivity’s Customer Portal. Netivity will begin charging for any Services added to the Order Form after the Final Invoicing Date as they are activated. If an ordered service is not available for use on the service activation date and this unavailability is not due to Customer’s action or inaction or failure to provide required information, then Netivity may delay the Service Activation Date until such service is delivered and available for use. In addition, for certain Services, Netivity retains the right to delay the Service Activation Date in accordance with Netivity’s normal business practices.
1.3 Payment. Unless otherwise stated in the Order Form, Service Fees are due 10 days from the date of the invoice. All Service Fees are quoted in United States currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. Customers are responsible for reviewing invoices for accuracy. To dispute a charge, Customer shall raise such dispute via written notice within ninety (90) days of the date of invoice containing the disputed charge, setting forth the amount and the basis of the dispute in reasonable detail. Failure to so dispute a charge within such 90-day period shall constitute an irrevocable waiver of Customer’s right to dispute the ACH or credit card payment is required for all invoices unless specified elsewhere in the Order Form.
1.4 Suspension of Service. If any Customer account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute) Netivity reserves the right to suspend or disable the Services, after providing notice to Customer without liability to Netivity, until such account is paid in full.
1.5 Taxes and Regulatory Fees. Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, other than Netivity’s income taxes, with respect to the Services
2.0 Other Networks; Approval and Usage. The Services require the ability to transmit data through third party networks and carriers, public and private (“Third Party Networks”). Customer acknowledges that use of or presence of Third Party Networks may require approval of the owners or operators of such Third Party Networks, and will be subject to the terms and conditions of such Third Party Networks. Customer understands that Netivity does not own or control the Third Party Networks and agrees that Netivity shall not be responsible or liable for the performance or non-performance of the Third Party Networks, or within interconnection points between the Service and the Third Party Networks.
3.0 Term of the Agreement. This Agreement commences on the date of execution of the Order Form by Customer and continues until all Services expire or this Agreement is mutually terminated by the parties. If no term is listed on the order form, the term is 36 months.
3.1 Term of the Services. The Services are offered for the Term of Service specified in the Order Form (the “Initial Term”). The Initial Term shall begin on the date of the first invoice that includes monthly recurring charges for Following the Initial Term, Services shall automatically renew for additional terms equal to the Term of Service at the New Service Monthly Commitment (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”) unless and until either party notifies the other party in writing (which may be via e-mail) at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services (the Initial Term and any Renewal Term collectively referred to as the “Term”). If a written termination notice is received by Netivity on or before the 1st of a month, billing, and Services (except for any final usage invoice) will terminate at the end of the currently billed month. For example, a customer’s term ends at the end of June and the customer provides notice of termination before May 1. In that case, the last invoice for Monthly Services covers Services until end of June and Services terminate at the end of June. If a written termination notice is received by Netivity after the 1st of a month, billing, and Services (except for any final usage invoice) will terminate at the end of the month following the currently billed month. For example, a customer’s term ends at the end of June and the customer provides notice of termination after May 1st. In that case, the last invoice for Monthly Services covers Services until the end of July and Services terminate at the end of July.
FOR AVOIDANCE OF DOUBT, if Customer does not provide a termination notice or if a notice is not timely (i.e., notice is provided less than 30 days before the end of the Term), Customer’s Term of Service shall auto-renew for an additional one (1) year term, and each year thereafter (“subsequent terms”) and Section 3.3 shall apply.
In addition, after termination of Services, Customer will be sent a final invoice with charges for usage incurred through the end of the Services. If, during the Initial Term or any Renewal Term, Customer adds any additional services to its use of the Service or upgrades or downgrades Profiles, the amount of Customer’s monthly recurring charges shall increase the sum set forth in the original Customer Service Order Form (the “New Service Monthly Commitment”), and the Term for any such additional Services or amendments for add- on locations shall be coterminous with the Initial Term or any Renewal Term in effect at the time.
3.2 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon ninety (90) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
3.3 Early Termination. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the current Term and such termination is not due to Netivity’s breach, Customer agrees to pay Netivity an amount equal to (i) 12 months of the monthly services fees if the Agreement is terminated within year 1 of the Agreement, (ii) 9 months of monthly services fees if the Agreement is terminated any time within year 2 of the Agreement, or (iii) 6 months of monthly services fees if the Agreement is terminated any time after year 2 of the Agreement.
4.0 Device Agents. Customer is required to install and maintain device agent software provided by Netivity. Customer agrees to allow the installation of device agent(s) where required to provide services under this agreement. This software is required to provide the services under this agreement. Customer is required to provide an internet connection which allows device agents to contact the internet unrestricted. If the device agent is not maintained, services will not be able to be provided, which could result in a service hold, which could cause a lapse in
4.1 Shipping Equipment. If the Order contains equipment or other supplies and consumables, shipping charges will be billed at normal customary rates. If the customer requires emergency shipment, an additional expedited supply delivery fee of $80 per occurrence may be added.
5.0 Fraud. Customer agrees to notify Netivity promptly if it becomes aware of any fraudulent or unauthorized use of its account, Service, or Equipment. Netivity shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
6.0 Service Levels. Netivity will use commercially reasonable efforts to minimize service disruptions and In the event of service disruptions or outages, Customer’s sole remedy, and Netivity’s sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement set forth on Netivity’s web site at: https://www.netivity.net/sla. Netivity may update the Service Level Agreement from time to time upon notice to Customer.
6.1 Technical Business Reviews. For helpdesk services only, Netivity will provide Customer a technical business review upon request. No more than two technical business reviews can be requested each year. If Netivity believes a technical business review is required, Netivity will contact Customer to facilitate a technical business review.
6.2 Services that are not covered. This agreement does not cover physical moving of equipment between two This agreement does not cover services for working on a device that was purchased without consulting Netivity if the device is problematic or incompatible.
6.3 Data Backups. If Customer does not have valid backups, Netivity is not responsible for data loss.
7.0 Equipment. If so indicated on any Order Form, Netivity may lease or sell certain equipment to Customer. Such equipment shall be listed on the Order Form and/or on any other form signed by Customer (such leased equipment the “Equipment”). Any Equipment leased shall be subject to the terms and conditions set forth in the terms and conditions of the lease signed by Customer. Customer shall be solely responsible and liable for user’s compliance with this Agreement and the proper use of the Equipment.
7.1 Substitutions. Netivity reserves the right to substitute a comparable item listed on the order. Any substitution will be of equal or greater specifications.
7.2 Returns. All returns must be approved by Netivity. If Netivity approves a return, a restocking fee of 15% will be charged. Software licensing, and custom hardware builds are non-refundable.
8.0 Confidentiality. As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to seek injunctive relief.
9.0 Resale. Customer represents and warrants that it will be the end user of the Services. Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving Netivity’s prior written consent.
10.0 Disclaimer of Warranties. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, NETIVITY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY Netivity does not warrant that the Services will meet the Customer's requirements or that the operation of the Services will be uninterrupted or error- free. Further, Netivity does not warrant that all errors can be corrected.
10.1 Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that Netivity does not and cannot control the flow of data between Customer’s network and Third Party Such flow depends on the performance of Third Party Networks and the services provided or controlled by third parties. Action or inactions caused by these Third Party Networks can produce situations in which customer connections may be impaired or disrupted. Although Netivity will use commercially reasonable efforts to remedy and avoid such events, Netivity cannot issue any warranties over these Third Party Networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 12.0 ABOVE, Netivity DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
11.0 Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND 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 INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. UNDER NO CIRCUMSTANCES WILL Netivity BE RESPONSIBLE FOR ANY DAMAGE,
LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’s ACCOUNT OR THE INFORMATION CONTAINED THEREIN. NETIVITY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER DURING THE PREVIOUS 12 MONTHS.
Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However, and notwithstanding the provisions of this Section 13, the parties agree that neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entry into this Agreement. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
12.0 Indemnification
12.1 Netivity’s Indemnification of Customer. Netivity shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Customer’s premises that result from any negligent or willful acts or omissions of Netivity or of any agent, employee or contractor of Netivity that occur in the course of the performance of any Service installation or maintenance work at the Customer’s premise.
12.2 Customer’s Indemnification of Netivity. The Customer agrees to indemnify and hold Netivity harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Netivity by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of the Rules of Use; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Netivity; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
12.3 Mutual Provisions. Each party's indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
13.0 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Netivity’s reasonable control, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
14.0 No Lease. Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Netivity or in any personal property or server space leased by Netivity, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
15.0 Assignment. Customer may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of Netivity, except to a party that acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition. The Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
16.0 Notices. Notices regarding the following may be posted on Netivity’s website: (i) modifications, impositions or increases to regulations and Fees; (ii) new or modified documentation, including but not limited to SLA, Privacy Policy and other internal documents; (iii) changes to rates, other than those affecting Customer under this Agreement; and (iv) new Services and information. The changes will become effective and will be deemed accepted by Customer, (a) immediately for those Customers who purchase the Services after the updated version is published on Netivity’s website, or (b) for those having pre- existing accounts, the updated Terms of Service will be deemed effective with Customer’s continued use of the Service. Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Netivity’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses given above in the heading to this Agreement or to such other address as a Party may, from time to time, designate by notice to the other Party.
17.0 Choice of Law and Arbitration. The Agreement will be governed by and construed in accordance with the laws of the State of Alabama. In the event of any controversy or claim arising from or related to this Agreement, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Except for disputes, controversies, claims or collection efforts regarding Customer’s failure to pay any charges, amounts or fees invoiced to Customer, any and all disputes, controversies and claims arising out of or relating to this Agreement or any Order Form, including its/their validity, shall be handled, determined, and resolved by arbitration conducted in Madison County, Alabama, before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect of the American Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings. Each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental, or consequential damages, and each party irrevocably waives any damages in excess of direct compensatory damages.
18.0 Entire Agreement. The Proposal, these Terms of Service, and any Order Form(s) issued hereunder represent the complete agreement and understanding of the parties with respect to the subject matter hereof and supersede, to the extent of any conflict, any other agreement or understanding, written or oral, between the parties with respect to the subject matter hereof. In the event of an inconsistency between the terms and conditions of the Order Form, these Terms and Conditions of Service and the Order Form(s) now or hereafter appended hereto, the terms of the Order Form shall govern. Both parties represent and warrant that they have full corporate power and authority to execute and deliver each Order Form and to perform their obligations under the Agreement and that each person whose signature appears on the Proposal, these Terms of Service (if applicable) and any Order Form is duly authorized to execute such document on behalf of the respective party.
19.0 Surviving Provisions. The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties’ entering into this Agreement; will survive the termination of the Agreement and will apply even if the Agreement is found to have failed of its essential purpose.
