Main Service Agreement (MSA)

Netzilo Main Service Agreement

This Main Service Agreement (“MSA”) between Netzilo Inc. (“Netzilo,” “we,” “our” or “us”) and the customer identified in the relevant Order Form (defined below) (“Customer,” “you” or “your”) permits such Customer to purchase the Netzilo Solution (defined below) pursuant to Order Forms referencing this MSA. This MSA together with the Data Processing Addendum and all applicable Order Forms and Special Terms collectively comprise the “Agreement” between you and Netzilo. This MSA shall govern your purchases of the Netzilo Solution from the effective date unless otherwise agreed in the Order Form. Each of Netzilo and you may also be referred to in the Agreement as a “party” or collectively as the “parties.”

1. Definitions.

Some capitalized terms are defined in this Section 1 and others are defined contextually elsewhere in the Agreement.

1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party.

1.2 “Customer Data” means any data, information, records, files, communications and other content that is transmitted from one Customer Endpoint to one or more other Customer Endpoint(s) using the Netzilo Solution and can only be encrypted/decrypted by the Customer.

1.3 “Customer Endpoint” means a device of Customer or a Permitted User that has the Netzilo Client Software installed upon it.

1.4 “Documentation” means the online documentation, guidelines and policies provided by Netzilo in relation to the Netzilo Solution, including our service descriptions, Service Level Agreement (“SLA”), acceptable use policies, technical documentation, user guides and support documentation and any Updates thereto.

1.5 “Integrations” means any software application, functionality, website, product or service that will connect to or integrate with the Netzilo Solution or embed certain functionality into a third party platform or service, including via an API or SDK. You and your Permitted Users choose which Integrations to activate with respect to your use of the Netzilo Solution.

1.6 “Order Form” means an ordering document regarding the Netzilo Solution to be provided under this Agreement that is entered into between Netzilo or any of its Affiliates and Customer, or between Netzilo or any of its Affiliates and any of Customer’s Affiliates.

1.7 “Permitted User” means an individual human who is authorized by Customer to access and use the Netzilo Solution.

1.8 “Netzilo Client Software” means Netzilo’s proprietary software that is installed on Customer Endpoints and any Updates thereto.

1.9 “Netzilo Platform” means Netzilo’s proprietary Internet-accessible software and service that is hosted and maintained by Netzilo.

1.10 “Netzilo Solution” means the totality of Netzilo’s proprietary service that includes the Netzilo Platform and Netzilo Client Software, as well as any other software, information or services related thereto provided by Netzilo to Customer, all as and to the extent listed on an Order Form.

1.11 “Updates” means any version updates, bug fixes, patches, error corrections, and other similar software or content updates to the Netzilo Client Software or Documentation.

2. Service Terms.

2.1 Provision and Access. In accordance with the terms and conditions of the Agreement, Netzilo shall grant you and your Permitted Users access to and use of the Netzilo Solution as detailed in Documentation solely for your internal business purposes pursuant to a duly-executed Order Form. This includes a limited, revocable, worldwide, non-exclusive, non-transferable, license to download and use the Netzilo Client Software on Customer Endpoints solely in connection with your use of the Netzilo Solution pursuant to a duly-executed Order Form. You agree that your purchase of the Netzilo Solution is not contingent on the delivery of any future features or functionality, or dependent on any oral or written public comments made by us regarding future functionality or features.

2.2 Ownership. As between the Customer and Netzilo, the Netzilo Solution and Documentation, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Netzilo. Nothing in the Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Netzilo Solution subject to the Agreement. You may not, directly or indirectly, do or attempt any of the following: (i) misappropriate or otherwise commercially exploit any part of the Netzilo Solution; (ii) modify, disassemble, decompile, reverse engineer, copy, reproduce, or create derivative works from the Netzilo Solution; (iii) damage, tamper with or circumvent any part of the Netzilo Solution; (iv) breach or circumvent any security measure for the Netzilo Solution; (v) access or use the Netzilo Solution to compete with Netzilo or build a competitive product, service or solution; or (vi) access or use the Netzilo Solution for illegal or illicit purposes.

2.3 Customer Data. Customer retains all right, title and interest including all intellectual property rights in and to Customer Data. You grant us a limited, nonexclusive, revocable, worldwide, royalty-free right to transmit Customer Data solely to enable us to provide the Netzilo Solution to you during the Term. Subject to the limited license granted herein, Netzilo acquires no right, title or interest in or to any Customer Data. For the avoidance of doubt, you and your Permitted Users choose what Customer Data to transmit using the Netzilo Solution; Netzilo does not have access to, use of or control over Customer Data, and only you can encrypt/decrypt Customer Data. Netzilo will not make any change to the Netzilo Solution that would enable it to decrypt Customer Data. Netzilo has no general obligation to monitor, and does not monitor, your Customer Data. You are solely responsible for the content of your Customer Data and represent and warrant that your Customer Data does not violate applicable laws.

2.4 Customer Responsibilities. You will use the Netzilo Solution in accordance with our Documentation and applicable laws. You are solely responsible for: all actions taken through your account by you or your Permitted Users; timely accepting, installing and using Updates; and acquiring, maintaining and securing your own hardware, software, networks and computer systems, which are not included in the Netzilo Solution. You are also responsible for the activity of your Permitted Users and the confidentiality of your and their login credentials. Customer will promptly notify Netzilo of any actual or suspected unauthorized use of the Netzilo Solution. We reserve the right to suspend, deactivate, or replace a Permitted User account if we determine that such account may have been used to violate any applicable law or not in accordance with the Agreement or Documentation. Any breach of the Agreement by your Permitted Users shall be deemed to be a breach by Customer.

2.5 Third Party Services. The Netzilo Solution may contain, enable or link to third party websites, applications, services or content, including via Integrations (collectively “Third Party Services”). We do not own or operate the Third Party Services and cannot guarantee their continued availability or compatibility. We have not reviewed, and cannot review, all of the material made available through Third Party Services. We do not warrant or support the Third Party Services. The availability of such links through the Services does not represent, warrant or imply that we endorse any Third Party Services or any content, materials, opinions, goods or services available on or through them. Our Documentation does not apply to Third Party Services. Your decision to visit or link to a Third Party Service, or to activate an Integration, is your decision and your responsibility. We are not responsible for any security breach of Customer Data or any data or information that is transmitted to, or accessed by, a Third Party Service. If you choose to use an Integration with the Netzilo Solution, you grant us permission to transmit data to the Integration and/or to allow the Integration to access data as necessary for the interoperation of that Integration with the Netzilo Solution.

3. Payment.

3.1 Fees. In consideration for the rights granted to Customer and the performance of Netzilo’s obligations under this MSA, Customer agrees to pay Netzilo the amounts set forth in the applicable Order Form (the “Fees”). Payments are non-cancelable, non-transferable, non-refundable, and not subject to acceptance, except as expressly stated elsewhere in this MSA.

3.2 Renewals. Unless set forth otherwise in your Order Form, Order Forms will automatically renew for subsequent terms of twelve (12) month periods (each a “Renewal”) unless either party gives written notice of non-renewal at least 30 days prior to the end of the then-relevant Order Form term. During each Renewal Term, the per-unit pricing will increase up to a maximum of 5% above the applicable Order Form pricing in the prior term, unless Netzilo provides you notice of different pricing at least 45 days prior to the applicable Renewal. Notwithstanding anything to the contrary, renewal of any free, complimentary, promotional or one-time priced services will renew at our applicable list price in effect at the time of the applicable Renewal.

3.3 Taxes. The Fees set out in this MSA do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this MSA, other than Taxes based on the net income or profits of Netzilo. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, Customer will provide a certificate of exemption upon agreement to this MSA and, after receipt of valid evidence of exemption, Netzilo will not charge Customer any Taxes from which Customer is exempt.

3.4 Invoices. Netzilo will invoice you as of the first day of each payment period for the Fees and Taxes due for that payment period, as set forth in the applicable Order Form. Unless set forth otherwise in your Order Form, all invoices are issued in United States dollars, all payment periods are on an annual basis, and each invoice is due and payable thirty (30) days from the invoice date according to the payment instructions provided on the invoice. You may add a purchase order number to an invoice, if necessary for your internal payment processing requirements. If Customer disputes any amount set forth in any invoice, you must notify Netzilo within fifteen (15) days of the invoice date or you will be deemed to have waived your right to dispute such amount. The parties agree to work in good faith to resolve any payment dispute.

3.5 Delinquent Accounts. In the event of late payments or non-payments of undisputed amounts (collectively, “Delinquent Accounts”), Netzilo reserves the right to suspend Customer’s access to and use of the Netzilo Solution and/or charge interest on such past-due amounts until those amounts are paid in full, to be decided by us in our sole discretion. If, after working in good faith with the Customer, Netzilo is not successful in resolving the Delinquent Account, any interest will accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Netzilo. Customer will reimburse Netzilo for the reasonable costs of collection, including reasonable fees and expenses of attorneys.

4. Term; Termination.

4.1 Term. This MSA will remain in effect commencing as of the date Customer first signs an Order Form (which shall be the “effective date” of this MSA) and continuing until the earlier of (i) the natural expiration or termination of all Order Forms under this MSA or (ii) the termination of this MSA by one of the parties as provided herein. The full duration of this MSA is the “Term.”

4.2 Termination for cause. Either party may terminate this MSA immediately upon written notice if the other party materially breaches the Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. In addition, if a party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver, or makes an assignment for the benefit of any creditor, then the other party may terminate this MSA immediately upon written notice. If Customer terminates for cause under this Section 4.2, Netzilo will refund to you on a pro rata basis any prepaid Fees covering the remainder of your Order Form term after the effective date of termination. If Netzilo terminates for cause, Customer will remain liable to pay all Fees outstanding as of the effective date of termination, including any unpaid Fees covering the remainder of the Term had this MSA not been terminated.

4.3 Effect of termination. Upon termination of this MSA, Customer’s right to access and use the Netzilo Solution will immediately end, and Customer and its Permitted Users will immediately cease all use of the Netzilo Solution. We will have no further obligation to maintain or provide you with access to the Netzilo Solution, including for transition purposes, and may thereafter, unless legally prohibited, delete any associated data in our systems or otherwise in our possession or under our control pursuant to our standard data retention policies and procedures. The parties also will cease any and all use of Confidential Information belonging to the other party, and return or destroy any such Confidential Information upon request. In no event will any termination or expiration relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Expiration or termination of this MSA will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve either party’s obligation to pay all amounts and Fees that have accrued or are otherwise owed by such party under this MSA up to the effective date of termination.

4.4 Survival. The rights and obligations of Netzilo and Customer contained in the following sections will survive expiration or termination of this MSA: Sections 3 (Payment), 4.3 (Effect of Termination), 4.4 (Survival), 6 (Confidentiality), 7.3 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitations of Liability), and 14 (Miscellaneous).

5. Data Protection.

5.1 Data Processing Addendum. The parties expressly incorporate by reference the Netzilo Data Processing Addendum (“DPA”) for compliance with global laws and regulations related to the processing of Personal Data (defined in the DPA) in connection with the Netzilo Solution and this MSA.

5.2 Security. Netzilo has adopted and will maintain administrative, technical, physical, and organizational security measures that are at least as robust as those described in our DPA as of the effective date of this MSA. Netzilo will not knowingly introduce into the Netzilo Solution any viruses, worms, time bombs, Trojan horses or other malicious code that might harm, or any “copyleft” open source license that would require the open licensing of, any Customer systems.

5.3 Usage Data. Customer acknowledges that Netzilo securely processes information, data and metadata resulting from the ordinary course operation and use of the Netzilo Solution for limited internal business purposes related to the ongoing operation, development and protection of the Netzilo Solution, including security and fraud prevention, product analytics, research, debugging and improvement, and billing and customer account management (collectively “Usage Data”). Netzilo processes Usage Data for such purposes as an independent data controller or business in accordance with applicable Data Privacy Laws (defined in the DPA). Customer acknowledges and agrees that Netzilo may process Usage Data for such purposes, and that such purposes are compatible with, reasonably necessary, and proportionate to providing the Netzilo Solution to Customer. To the extent Usage Data includes any identifying information, Netzilo will de-identify and/or aggregate the Usage Data whenever possible. For the avoidance of doubt, Usage Data does not include Customer Data.

5.4 Acknowledgement. You acknowledge that: (a) Netzilo is not a “Business Associate” as defined in HIPAA and the Netzilo Solution is not HIPAA compliant; (b) Netzilo is not a “bank service provider” as defined in the Bank Service Company Act; and (c) Netzilo does not act as a “school official” as defined under FERPA, and customers are solely responsible for using the Netzilo Solution only for non-FERPA covered purposes. As a reminder, you and your Permitted Users choose what Customer Data to transmit using the Netzilo Solution; Netzilo does not have access to, use of or control over Customer Data. If you choose to transmit any sensitive information (including information associated with (a)-(c) above, any special categories of data as enumerated in GDPR Article 9(1), and any tax identification numbers, Social Security numbers, driver’s license numbers, or other similar government identification numbers), you are solely responsible for ensuring that suitable safeguards are in place prior to transmitting or processing such information using the Netzilo Solution.

6. Confidentiality.

The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to this Agreement with respect to the subject matter hereto.

6.1 Definition. “Confidential Information” means all information disclosed by a party to the other party, whether orally 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. Netzilo Confidential Information includes: the software for the Netzilo Solution, whether in source or executable code; Research (as defined in Section 8.2) materials and information; nonpublic business, product, marketing, pricing and sales information; audit materials and reports; internal policies, procedures and controls; and the results of any performance tests of the Netzilo Solution. Confidential Information does not include any information that: (i) is or becomes generally known to the public through no breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the disclosing party; or (iv) is independently developed by the receiving party. For the avoidance of doubt, the parties acknowledge that Personal Data (defined in the DPA) is not considered Confidential Information and the terms of the DPA, not this Section 6, shall govern the parties’ obligations with respect to Personal Data.

6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The receiving party will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care); (b) not use or disclose any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and (c) limit access to Confidential Information of the disclosing party, except as otherwise authorized by the disclosing party in writing, to only those employees, agents and contractors (including its Affiliates, legal counsel, auditors and accountants) who (i) need that access for purposes consistent with the Agreement and (ii) are bound to obligations of confidentiality that are not materially less protective of the Confidential Information than those contained in this MSA. Upon the expiration or termination of this MSA, the receiving party shall have no further rights to the disclosing party’s Confidential Information and shall promptly destroy all materials (whether maintained electronically or otherwise) containing such information, together with all copies thereof in whatever form; provided however that the receiving party may retain copies for archival purposes as required by applicable law or to the extent such copies are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures. The receiving party’s obligations relating to protection of Confidential Information under this MSA shall continue for three (3) years following the expiration or termination of this Agreement, except that in the case of Confidential Information that is a trade secret under applicable law, the obligations of confidentiality shall continue for so long as such Confidential Information remains a trade secret.

6.3 Compelled disclosures. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by any competent court or governmental agency. Before disclosing such information, the receiving party must (if permitted by law) provide the disclosing party with sufficient advance notice of the request for the information to enable the disclosing party to exercise, at its own cost, any rights it may have to challenge or limit the request to receive such Confidential Information.‍ If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that Confidential Information.

6.4 Availability of injunctive relief. The parties acknowledge that disclosure of any Confidential Information in violation of this Section 6 will give rise to irreparable injury to the owner of such information that is not adequately compensated by damages. Accordingly, each party will be entitled to seek equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 6, in addition to any other legal remedies which may be available.

7. Warranties & Disclaimers.

7.1 Mutual warranties. Each party represents and warrants that: (a) it is duly authorized to enter into this MSA; (b) it is duly organized and validly existing under the laws of its relevant jurisdiction; (c) it has the full right, power and authority to enter into this MSA and perform its obligations hereunder; (d) this MSA is a valid and binding obligation of such party; and (e) it will comply with all applicable laws and regulations with respect to its activities related to the Netzilo Solution and the Agreement.

7.2 Limited warranty. Netzilo represents and warrants that: (a) the Netzilo Solution will operate in material and substantial conformity with the Documentation; and (b) Netzilo will not materially decrease the overall functionality of the Netzilo Solution during each Order Form term; ((a)-(b) collectively the “Limited Warranty”). If Customer notifies Netzilo of a breach of the Limited Warranty, Netzilo will correct the nonconformity. The foregoing constitutes Customer’s sole and exclusive remedy for any breach of the Limited Warranty. The Limited Warranty will not apply to any Third Party Service, if caused by any events, systems or circumstances outside our reasonable control, or if caused by Customer’s use of the Netzilo Solution in an unlawful manner or not in accordance with the Agreement or our Documentation.

7.3 Warranty disclaimer. Except as expressly provided for in this MSA and the SLA (if and as applicable to you), and to the maximum extent permitted by law, the Netzilo Solution is provided warranty free, on an “as is” and “as available” basis. We make no further representations, warranties or conditions of any kind, whether express, implied, collateral or statutory, including any warranties of merchantability, merchantable quality, compatibility, title, security, reliability, non-infringement, accuracy, quality, completeness, quiet enjoyment, integration or fitness for a particular purpose or use. We further disclaim any and all warranties or conditions arising out of course of dealing or usage of trade. Some jurisdictions, including the Province of Quebec, do not allow the limitation or exclusion of certain warranties, or the exclusion or limitation of certain damages. If you reside in one of those jurisdictions, the above limitations or exclusions may not apply to you.

8. Feedback; Research.

8.1 Feedback. If you or any of your Permitted Users voluntarily send us feedback, suggestions or recommendations about the Netzilo Solution (“Feedback”), we may freely use Feedback without duty or obligation to you. We are not obligated to use Feedback, but if we do then it becomes part of the Netzilo Solution and our property. Unless in the context of Research, all Feedback will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of any Feedback, nor will the submitter be entitled to any compensation for our use of their Feedback.

8.2 Research. From time to time you or certain of your Permitted Users may be invited to participate in studies, focus groups, workshops, beta testing, or other research or testing of features, products or services related to the Netzilo Solution, some of which may not yet be ready for general release (“Research”). Participation is completely voluntary. We are not forming a partnership, joint venture, agency, or employment relationship with you or your Permitted Users just by virtue of participating in Research. We are under no obligation to generally release the feature or functionality subject to Research, or to provide any special maintenance, technical support, or other service or support for Research. All materials associated with Research are provided on an “as is” and “as available” basis, without any warranties of any kind, express or implied.

9. Publicity.

Netzilo may refer to you as one of Netzilo’s customers for marketing or promotional purposes. You grant us the right to use your name and logo solely for such purposes. We will adhere to any trademark guidelines that you provide to us, and any goodwill that arises from our use of your name or logo shall inure solely to your benefit. In addition, you agree to serve as a reference account for Netzilo. We will provide you with reasonable notice and obtain your consent before scheduling any reference calls. Neither party will issue a press release about Customer becoming a Netzilo customer or a case study about Customer’s experience with the Netzilo Solution without the prior written consent of the other party (not to be unreasonably withheld).

10. Disputes; Choice of Law.

To the extent permitted by applicable law, the Agreement will be governed by and interpreted in accordance with the internal laws of the jurisdictions specified in Schedule A, without regard to conflicts of laws principles. In the event of any controversy or claim arising out of or relating to the Agreement, or its breach or interpretation, the parties will submit to the exclusive jurisdiction of and venue in the applicable courts or arbitration bodies specified in Schedule A. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum. Notwithstanding the foregoing, this choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. The parties hereby waive their right to jury trial with respect to all claims and issues arising under, in connection with, touching upon or relating to the Agreement.

11. Indemnification.

11.1 Indemnification by Netzilo. Netzilo will defend Customer and its Affiliates, and each of their respective officers, directors, employees, agents, successors and assigns, against any claim, demand, suit or proceeding made or brought against Customer by a third party (other than a Customer Affiliate) alleging that the Netzilo Solution infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Netzilo in writing of, a Claim Against Customer. In the event that our right to provide the Netzilo Solution is threatened or enjoined, we may in our sole discretion either obtain the right to continue providing the Netzilo Solution, or replace or modify the Netzilo Solution so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this MSA upon thirty (30) days written notice without liability to you and refund any prepaid Fees covering the Netzilo Solution on a pro-rata basis following the effective date of such termination. The above defense and indemnification obligations will not apply to the extent the Claim Against Customer arises from: (i) Customer’s use of the Netzilo Solution in an unlawful manner; (ii) Customer’s failure to timely install or use Updates when the Netzilo Solution would not infringe had such Updates been so installed or used; (iii) Customer Data, (iv) Customer’s instructions, specifications or requirements to Netzilo; (v) Customer’s combination of the Netzilo Solution with any other software, system, equipment, component, process or material not provided by Netzilo; or (vi) Customer’s use of the Netzilo Solution not in accordance with the Agreement or Documentation.

11.2 Indemnification by Customer. Customer will defend Netzilo and its Affiliates, and each of their officers, directors, employees, agents, successors and assigns, against any claim, demand, suit or proceeding made or brought against Netzilo by a third party (other than a Netzilo Affiliate) arising from: (a) Customer’s use of the Netzilo Solution in violation of our Acceptable Use Policy; (b) Customer’s combination of the Netzilo Solution with any other software, system, equipment, component, process or material not provided by Netzilo; or (c) Customer Data; ((a)-(c) each a “Claim Against Netzilo”); and will indemnify Netzilo from any damages, attorney fees and costs finally awarded against Netzilo as a result of, or for any amounts paid by Netzilo under a settlement approved by Customer in writing of, a Claim Against Netzilo. The above defense and indemnification obligations will not apply to the extent the Claim Against Netzilo arises from Netzilo’s material breach of the Agreement.

11.3 Indemnification procedures. Each party’s respective defense and indemnification obligations are contingent upon: (a) the indemnified party providing the defending party with prompt written notice of an eligible claim (no more than thirty (30) days after receipt of notice of the claim), as well as reasonable cooperation, assistance and information in the defense and settlement of any claim; and (b) the defending party having sole authority to defend or settle such claim (provided that the defending party will not enter into a settlement that is not confidential, requires an admission of fault, or imposes non-monetary relief without the indemnified party’s prior written consent, which shall not be unreasonably withheld). The indemnified party will have the right to participate in the defense with counsel of its own choosing at its own expense, provided that such representation does not interfere with the defending party’s right to control the defense.

11.4 Exclusive remedy. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section notwithstanding anything to the contrary in this MSA.

12. Limitation of Liability.

The following provisions have been negotiated by the parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

12.1 Except for the Excluded Liabilities (defined below), notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party be liable to the other party for any indirect, incidental, special, exemplary, consequential, or punitive damages, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability), or otherwise. Some jurisdictions, do not allow the exclusion or limitation of certain damages. If you reside in one of those jurisdictions, the above limitations or exclusions may not apply to you.

12.2 Except for the Excluded Liabilities, notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party’s aggregate liability to the other in connection with the Agreement or Customer’s access to and use of the Netzilo Solution exceed the total fees paid or payable by Customer for the Netzilo Solution under which the claim arose in the twelve (12) month period preceding the claim or action, regardless of the form or theory of the claim or action.‍ For greater certainty, the existence of one or more claims under the Agreement will not increase this maximum liability amount.

12.3 For purposes of this Section 12, the “Excluded Liabilities’’ are any liabilities arising from: (a) indemnification obligations under Section 11 (Indemnification); (b) breach of Section 6 (Confidentiality); (c) breach of Section 2.2 (Ownership); or (d) Customer’s obligation to pay all outstanding Fees.

13. Trade Compliance.

In connection with this MSA, each party agrees to comply with: all relevant export and import laws; and all laws relating to embargoes or sanctions, including the lists maintained by the United Nations Security Council, the United States Government, the European Union or its member states, or other applicable government authority (collectively “Sanctions”). By accessing and using the Netzilo Solution, you represent, warrant, and covenant that you and your Permitted Users are not: a party on any Sanctions list; owned or controlled by any such party; or located in (or a national of) a country or jurisdiction on any Sanctions list. Any attempt to access or use the Netzilo Solution in breach of the foregoing is considered a material breach of this MSA. We reserve full rights to change or limit access to the Netzilo Solution as necessary to ensure compliance with applicable laws and regulations.

14. Miscellaneous.

14.1 Evaluation Periods. Netzilo may, in its sole discretion, make the Netzilo Solution or certain features or functionality available to you free of charge solely for evaluation purposes for a limited period of time as set forth in an Order Form (the “Evaluation Period”). Such Order Form may contain other requirements or limitations related to the Evaluation Period, such as the number of Permitted Users that may access the Netzilo Solution. During the Evaluation Period you agree that you will use the Netzilo Solution solely for internal evaluation purposes and not for commercial use. Notwithstanding anything in this MSA to the contrary, the parties expressly agree that, during and with respect to the Evaluation Period: (a) Netzilo reserves the right to terminate your access to the Netzilo Solution at any time for any reason; (b) neither the SLA (if and as applicable to you) nor any of the representations and warranties regarding the Netzilo Solution set forth herein, including the Limited Warranty, are applicable; and (c) Netzilo’s aggregate liability to you shall not exceed $100.

14.2 Modifications. From time to time, Netzilo may revise this MSA or the other documents comprising the Agreement. Unless otherwise specified by Netzilo, changes become effective for Customer upon renewal of the then-current Order Term or upon the effective date of a new Order Form after the updated version of the terms go into effect. Netzilo will use reasonable efforts to notify Customer of material changes through communications via Customer’s account, email or other means, and Customer may be required to click to accept or otherwise agree to the updated terms before renewing an Order Form or upon the effective date of a new Order Form. Continued use of the Netzilo Solution after the updated terms go into effect will constitute Customer’s acceptance of such updated version.

14.3 Assignment. Neither party may assign or transfer this MSA, in whole or in part, without the prior written consent of the other party (not to be unreasonably withheld) except in the event of either: (1) the direct or indirect acquisition of either (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (2) the merger of such party with another entity. Any attempted assignment or transfer in violation of this Section 14.3 will be null and void. Subject to the foregoing restrictions, this MSA will inure to the benefit of the successors and permitted assigns of the parties.

14.4 Notice. Unless otherwise specified: notice to Netzilo must be in writing and sent by email to [email protected]; and notice to Customer will be in writing and sent to the admin email address associated with Customer’s account. You are solely responsible for keeping your contact information on file with Netzilo current at all times during the Term. Notice will be deemed given and received on the business day following the day of actual delivery of the email, unless there is a specific notification that it was not received on the day of actual delivery thereof (ex a bounce back). Nothing herein shall constitute a waiver of formal requirements for service of process for initiating litigation or arbitration.

14.5 Force Majeure. Netzilo will not be liable for any failure or delay in the performance of our obligations on account of any events beyond our reasonable control that make it impossible or commercially impracticable for us to perform our obligations hereunder, including strikes or other labor problems, material shortages, epidemics, pandemics, civil unrest, riots, insurrection, fires, flood, earthquakes, storms, explosions, cyber attacks, or acts of God, war, terror or government.

14.6 No third party beneficiaries. The Agreement is intended for the sole and exclusive benefit of the parties; there are no third party beneficiaries, and only the parties may enforce the Agreement.

14.7 Relationship of the parties. Nothing in the Agreement will be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

14.8 Waiver and severability. The waiver by either party of any default or breach of the Agreement will not constitute a waiver of any other or subsequent default or breach. The Agreement operates to the fullest extent permissible by law. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.

14.9 Titles and headings. The section titles and headings are for convenience only and have no legal or contractual effect. The word “will” shall be construed to have the same meaning as “shall.” The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” The word “or” will not be exclusive. The phrase “to the extent” will be construed to mean the degree to which a subject or other matter extends, and such a phrase will not simply mean “if.” Where a word is defined herein, references to the singular will include references to the plural and vice versa. All references to “days” will be deemed to refer to calendar days unless otherwise specifically provided. All references to “$” and “dollars” will be deemed to refer to United States currency unless otherwise specifically provided​​.

14.10 Customer Affiliates. Permitted Users of Customer Affiliates may use the Netzilo Solution as Permitted Users of Customer. In such a case, Customer shall remain fully responsible for such Affiliates’ acts and omissions under the Agreement. Alternatively, a Customer Affiliate may enter into its own Order Form(s) as mutually agreed with Netzilo. In this alternative case, by entering into a separate Order Form your Affiliate agrees to be bound by the terms of this MSA and treated as the “Customer.” Neither Customer nor any of its Affiliates have any rights under each other’s Order Forms, and a breach or termination of any Order Form is not a breach nor termination under any other.

14.11 Entire agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements, written or oral, concerning its subject matter. Notwithstanding any language to the contrary, no terms or conditions stated in any software, onboarding, support, marketing or other materials, will be incorporated into or form any part of the Agreement, and all such supposed terms or conditions shall be null and void.

14.12 Order of precedence. To the extent of any conflict or inconsistency between the documents comprising the Agreement, the following order of precedence will apply: (1) any applicable Order Forms or Special Terms; (2) the DPA and SLA (if and as applicable to you); and (3) this MSA. Any terms and conditions stated on a purchase order or similar document issued by Customer for payment purposes shall be null and void.

14.13 English language. It is the express wish of the parties that the Agreement and all related documents be drawn up in English. 

14.12 Execution. The parties may execute any documents hereunder in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. The parties will be bound by signatures made by hand or electronic means, which may be transmitted to the other party by mail, hand delivery, email and/or any electronic method and will have the same binding effect as any original ink signature.

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