Terms of Service

 

Customers

 

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TERMS OF SERVICE FOR CUSTOMERS

(last modified June 2017)

 

These Terms of Service are a legal agreement (the "Agreement") between NetChain Squared LLC, a Delaware limited liability company ("NetChain", "we", "us" or "our"), on the one hand, and you and any person or organization for which you act (the "Customer") that has a NetChain account, on the other hand.

 

NetChain only offers accounts to businesses and does not offer personal accounts to individuals.  You represent and warrant that (i) you are entering into this Agreement on behalf of Customer, which you represent is a company or other legal entity, (ii) that your account is for, and held in the name of, Customer and not any individual, (iii) Customer has full legal capacity and is in good standing in the jurisdiction in which it was formed and (iv) you have full legal capacity and authority to bind yourself individually and Customer to this Agreement.

 

By clicking "I Accept" below, you agree that you and Customer will be bound by the terms of this Agreement.  This Agreement incorporates by reference terms and conditions displayed on the NetChain Platform (as defined below).

 

1.    DEFINITIONS

 

1.1    "Confidential Information" means all confidential and proprietary information of a disclosing party disclosed by or on behalf of such party to the receiving 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, including the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product designs, and business processes.  Notwithstanding anything to the contrary, the Service and NetChain Platform are deemed to be Confidential Information of NetChain.  Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party without restriction prior to its disclosure by the disclosing party and without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without either use of or reference to any Confidential Information or breach of any obligation owed to the disclosing party; or (iv) is received from a third party without restriction and without breach of any obligation owed to the disclosing party.

 

1.2    "Documentation" means the applicable NetChain product documentation relating to the operation and use of the Service, including technical program or interface documentation, operating instructions, update notes, and support knowledge base, as made available and updated from time to time by NetChain.

 

1.3    "NetChain Platform" means the software that enables NetChain to provide Customer with access to and use of the Service via the NetChain website located at www.netchain2.com, as contemplated by this Agreement.

 

1.4    "Order Form" means a digital order form evidencing the purchase of the Service specifying, among other things, the Service Term, the number of transactions included in the package purchased by Customer (if transaction-based), the number of Users, the applicable fees, and the billing period as agreed to between the parties.  Each Order Form shall be governed by and become part of this Agreement, and is hereby incorporated by reference.

 

1.5    "Customer Data" means any data, information or material provided or submitted by Customer or on behalf of Customer to the NetChain Platform in the course of using the Service.

 

1.6    "Service Term" means the period(s) during which Customer is authorized to use the Service pursuant to an Order Form.

 

1.7    "Updates" means NetChain's updates of the Service for repairs, enhancements or new features applied by NetChain to the NetChain Platform, including updates to the Documentation as a result of such updates, at no additional fee during the Service Term.  Updates shall not include additional functionality or upgrades to the Service for which NetChain requires a separate charge from its other customers generally.

 

1.8    "Users" means employees of Customer and its representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Service and have been supplied unique user identifications and passwords by Customer.

 

2.    GENERAL DESCRIPTION OF THE NETCHAIN SERVICE

 

2.1    Background.  NetChain provides Customer with the ability to exchange data and information with, conduct business with, and send and receive money from its suppliers and customers (the "Service") through the NetChain Platform.  Customer may access one or more of the modules of the Service through the Customer's NetChain account on the NetChain Platform.  Each module is described in greater detail on the NetChain Platform.

 

2.2    Payee Accounts.  A Customer of NetChain's accounts payable module (each, an "AP Customer") may invite its vendors or suppliers (each, a “Payee”) to create and utilize an accounts receivable account through the NetChain Platform.  Such an account is required in order for an AP Customer to make a payment to a Payee using the NetChain Platform. Subject to the Payee’s agreement to Terms of Service https://www.netchainsquared.com/tospayees, these Payee accounts enable NetChain to accept bill payments from an AP Customer on behalf of such vendors and suppliers.  Such vendors or suppliers will not be able to use the features and functionality of the NetChain Platform unless they open a Payee account and become customers of NetChain.

 

2.3    Multiple Users.  A NetChain account may have multiple Users with different roles, such as Administrator, Approver, Accountant, Clerk, Payer, Staff, or a user-defined custom role.  The functions of each applicable role are as set forth on the NetChain Platform.  Each NetChain account must have at least one "Administrator" who may add additional users and designate their roles.

 

3.    NETCHAIN’S OBLIGATIONS

 

3.1    Provision of the Service.  NetChain will make available to Customer, and Customer is authorized to use, the Service during the Service Term for Customer's internal business purposes in accordance with this Agreement and the Documentation.

 

3.2    Support, Updates & Uptime.  NetChain shall: (i) provide the level of support specified in the Order Form in accordance with the technical support requirements set forth on the NetChain Platform www.netchain2.com; (ii) provide Updates at no additional charge during the Service Term in accordance with the technical support requirements set forth on the NetChain Platform www.netchain2.com and (iii) use commercially reasonable efforts to make the Service available to meet an uptime availability requirement of 99.9% over a calendar month ("Uptime SLA").  The following events shall be excluded in calculating Uptime SLA:   (i) planned maintenance windows; (ii) emergency maintenance required to address an exigent situation with the Service or the NetChain Platform that if not addressed on an emergency basis could result in material harm to the Service or the NetChain Platform; and (iii) any unavailability caused by circumstances beyond NetChain's reasonable control.

 

3.3    Privacy and Security.  In providing the Service, NetChain will comply with our Privacy Policy https://www.netchainsquared.com/privacy-policy relating to the privacy and security of the Customer Data available on the NetChain Platform.  NetChain will adopt and maintain industry standard practices designed to protect Customer Data from unauthorized access, acquisition, use, disclosure, or destruction.  Customer acknowledges and agrees that the technical processing and transmission of the Customer Data may involve (i) transmission of the Customer Data over various networks, (ii) changes to the Customer Data to conform and adapt to technical requirements of connecting networks or devices; and (iii) transmission of the Customer Data to NetChain's third party vendors and partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service.

 

3.4    Breach Notification. Unless notification is restricted by law, NetChain shall report to Customer's support contacts as designated in NetChain’s customer support portal ("Support Portal") any unauthorized acquisition, access, use, disclosure or destruction of Customer Data ("Breach") promptly after NetChain determines that a Breach has occurred.  Unless prohibited by law, NetChain shall share information about the nature of the Breach that is reasonably requested by Customer to enable Customer to notify affected individuals, government agencies and/or credit bureaus.

 

4.    CUSTOMER'S USE OF THE SERVICE

 

4.1    User Accounts.  Customer is responsible for activity occurring under its User accounts.  Customer shall (i) comply and ensure that its Users comply with all applicable local, state, national and foreign laws, rules and regulations applicable to Customer's or its Users' use of the Service and the NetChain Platform; (ii) use and ensure that its Users use the Service and NetChain Platform in accordance with this Agreement; (iii) provide true, accurate, current and complete information about Customer as prompted by the Service and maintain and promptly update such information to keep it true, accurate, current and complete; and (iv) keep and ensure that its Users keep their username and passwords confidential.  Customer shall: (a) notify NetChain promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (b) stop any unauthorized use, copying, or distribution of the Service that is known or suspected by Customer and notify NetChain immediately if it becomes aware of any of the foregoing; (c) not impersonate another NetChain Customer or User or provide false identity information to gain access to or use the Service or NetChain Platform; and (d) restrict each User account to only one authorized User at a time.  NetChain will not have any liability to Customer or any other party for any unauthorized payment or transfer made using Customer's password that occurs before Customer has notified NetChain of possible unauthorized use and NetChain has had a reasonable opportunity to act upon such notice.

 

4.2    Restrictions.  Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose, or otherwise commercially exploit or make available to any third party the Service; (ii) copy, modify or make derivative works based upon the Service or the NetChain Platform; (iii) copy, reproduce, republish, upload, post, transmit or distribute in any way material from the Service or the NetChain Platform; (iv) "frame" or "mirror" the Service or the NetChain Platform on any other server or device; (v) access the Service or the NetChain Platform for any benchmarking or competitive purposes or use the Service or the NetChain Platform for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use; (vi) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Service or the NetChain Platform (except to the extent reverse engineering restrictions are prohibited by applicable law); (vii) remove, obscure or modify a copyright or other proprietary rights notice in the Service or the NetChain Platform; (viii) use the Service or the NetChain Platform to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party rights; (ix) use the Service or the NetChain Platform to create, use, send, store, or run material containing software viruses, worms, Trojan horses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Service or the NetChain Platform; (x) attempt to gain or permit unauthorized access to the Service, the NetChain Platform or their respective related systems or networks; (xi) use the Service or the NetChain Platform other than in compliance with all applicable laws and regulations; or (xii) permit or assist any other party (including any User) to do any of the foregoing.

 

4.3    Customer Data.  Customer has sole control over the Customer Data that it enters into the NetChain Platform.  If any Customer Data includes Personally Identifiable Information (as defined in our Privacy Policy https://www.netchainsquared.com/privacy-policy), Customer represents and warrants that it is in full compliance with the applicable provisions of our Privacy Policy https://www.netchainsquared.com/privacy-policy with respect thereto.  Customer acknowledges that NetChain does not pre-screen Customer Data, but that NetChain and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any Customer Data that is available via the Service and/or the NetChain Platform.  Without limiting the foregoing, NetChain and its designees shall have the right to remove any Customer Data that violates this Agreement or is otherwise objectionable or illegal as determined in NetChain's sole discretion.  Customer acknowledges, consents and agrees that NetChain may access, preserve and disclose Customer's account information and Customer Data if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with any applicable legal process; (ii) enforce this Agreement; (iii) respond to claims that any Customer Data violates the rights of third parties; (iv) respond to Customer's requests for customer service; or (v) protect the rights, property or personal safety of NetChain, its customers and users and the public.  In no event shall NetChain or its designees have any liability or obligation to Customer in connection with exercising any rights contained in this Section 4.3.

 

4.4    User Reassignment. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Service. Unless otherwise specified in the relevant Order Form, the replacement User shall be under the same Service Term of the original User.

 

4.5    Additional Users.  The right to add additional Users may be purchased via an Order Form and unless otherwise specified in the relevant Order Form, the Service Term of additional Users shall be coterminous with the Service Term in effect at the time the additional Users are added.

 

4.6    Consent to Electronic Disclosures.  Customer agrees that NetChain, on behalf of itself and third parties who administer the Service, may send the following to Customer by email or by posting them on the NetChain Platform:  (i) this Agreement, including legal disclosures; (ii) future changes to this Agreement; (iii) NetChain's Privacy Policy https://www.netchainsquared.com/privacy-policy; and (iv) other notices, legal communications or disclosures and information related to the Service or the NetChain Platform (collectively, the "Communications").  Customer consents to receive these Communications electronically.  Customer agrees to notify NetChain promptly if Customer's email address changes.  Customer consents to do business electronically and NetChain's agreement to do so covers all transactions Customer conducts through the Service and the NetChain Platform.  If Customer later decides that it does not want to receive future Communications electronically, contact NetChain's customer service at customerservice@netchain2.com or 7001 N. Scottsdale Road, Suite 2060, Scottsdale, Arizona85253.  If Customer withdraws its consent to receive Communications electronically, NetChain may terminate Customer's use of the Service or the NetChain Platform.

 

4.7    Third Party Interactions.  Each party agrees that it shall not charge an AP Customer's Payee for the right to interact with an AP Customer through the NetChain Platform.  During the Service Term, an AP Customer may enter into correspondence with and/or purchase goods and/or services from its Payee on or through the Service and the NetChain Platform.  Any such activities and associated terms are solely between such AP Customer and its applicable Payee.  AP Customer agrees that NetChain shall have no liability, obligation or responsibility with respect to any such correspondence or purchase between such AP Customer and any of its Payees.

 

5.    BILLING

 

5.1    Service Fees.  Customer shall pay all fees and other charges in connection with the Service in accordance with the Order Form (the "Service Fees").  For customers of NetChain that are on a month-to month plan, NetChain reserves the right to change Service Fees from time to time, in its sole discretion.  For customers of NetChain that are on an annual plan, NetChain will not change Service Fees during the applicable annual term, but reserves the right to change Service Fees for subsequent annual terms.  In either such event, NetChain will post the revised Service Fees on the NetChain Platform or notify Customers by email at least ninety (90) days in advance of the effective date of such changes ("Fee Increase Date").  If the change in Service Fees is not acceptable, Customer's sole and exclusive remedy shall be to stop using the Service and cancel Customer's account by notifying NetChain prior to the Fee Increase Date.  By continuing to use the Service or NetChain Platform after the Fee Increase Date, Customer accepts all changes in Service Fees.  ALL PAYMENT OBLIGATIONS ARE NON-CANCELLABLE AND ALL AMOUNTS PAID ARE NONREFUNDABLE EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT OR THE APPLICABLE ORDER FORM OR OTHERWISE REQUIRED BY APPLICABLE LAW.

 

5.2    Payment.  Customer hereby authorizes NetChain to (i) debit the designated credit or debit card account or (ii) debit (including via ACH) the designated Customer bank account (each a "Billing Account"), as applicable, in U.S. Dollars for all Service Fees and applicable Taxes (as defined below).  Any fees charged by NetChain's or Customer's respective banks for such payment shall be Customer's responsibility and shall be recoverable by NetChain from Customer.  If NetChain is unable to debit the Billing Account for any reason, all past due Service Fees and Taxes shall be paid within five (5) business days after written demand.  Interest shall 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.  NetChain shall be entitled to reimbursement for the reasonable costs of collection, including reasonable fees and expenses of attorneys.

 

5.3    Taxes.  NetChain’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes") and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that NetChain is solely responsible for taxes assessable against NetChain based on NetChain’s net income, property and employees.  If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, upon signing an Order Form, Customer shall provide to NetChain with a legally sufficient tax exemption certificate for each taxing jurisdiction, and NetChain shall not charge Customer any taxes from which it is exempt.  If any deduction or withholding is required by law, Customer shall notify NetChain and shall pay NetChain any additional amounts necessary to ensure that the net amount that NetChain receives, after any deduction and withholding, equals the amount NetChain would have received if no deduction or withholding had been required.  Customer shall also provide to NetChain documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

 

6.    PROPRIETARY RIGHTS

 

6.1    NetChain’s Intellectual Property Rights.  As between NetChain and Customer, all rights, title, and interest in and to all intellectual property rights in the Service and NetChain Platform (including all derivatives, modifications and enhancements thereof) are and shall be owned exclusively by NetChain notwithstanding any other provision in this Agreement or Order Form.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or NetChain Platform.  The NetChain name, logo and product names associated with the Service or NetChain Platform are trademarks of NetChain, and no right or license is granted to use them.  All rights not expressly granted to Customer are reserved by NetChain.  NetChain alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer, any of its Users or any other third party relating thereto.

 

6.2    Customer Data.  As between Customer and NetChain, Customer exclusively owns all rights, title and interest in and to all Customer Data.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that that it has and will have all rights and consents necessary to allow NetChain to use all such Customer Data as contemplated by this Agreement.  Customer hereby grants to NetChain a royalty-free, fully-paid, non-exclusive, non-transferable (except as set forth in Section 12.4 (Assignment)), sub-licensable, worldwide right to use and process Customer Data solely for the purpose of providing to Customer the Service and any other activities expressly agreed to by Customer.

 

7.    CONFIDENTIAL INFORMATION

 

7.1    Obligations.  The receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, except with the disclosing party's prior written permission.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).  If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior written 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, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes.

 

7.2    Remedies.  Except as expressly provided in this Agreement, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of posting a bond or proving actual damages as a condition for relief, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

 

7.3    Use of Aggregate Data. Customer agrees that NetChain may collect, use and disclose quantitative data derived from the use of the Service or the NetChain Platform for industry analysis, benchmarking, analytics, marketing, and other business purposes.  All data collected, used, and disclosed will be in aggregate form only and will not identify Customer or its Users on an individual basis; provided, however, that NetChain may collect, use and disclose certain non-financial information regarding Customer or its Users for purposes of analytics.

 

7.4     Marketing.  So long as a Customer remains a customer of NetChain, Customer agrees to be identified as a customer of NetChain and Customer agrees that NetChain may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer's business in NetChain's marketing materials and website.

 

8.    WARRANTIES

 

8.1    NetChain’s Obligations.  NetChain warrants that during the Service Term (i) Customer's use of the Service shall conform to this Agreement and the Documentation in all material respects and (ii) that the functionality of the Service at the time of the Order Form shall not materially decrease during the Service Term.

 

8.2    Procedure.  To submit a warranty claim under this Section 8, Customer shall (i) reference this Section 8 and (ii) submit a support request to resolve the non-conformity as provided in the technical support requirements set forth on the NetChain Platform www.netchain2.com.  If the non-conformity persists without relief more than thirty (30) days after written notice of a warranty claim provided to NetChain under this Section 8, then Customer may terminate the affected Service and NetChain, as its sole liability in connection with a breach of this warranty, shall refund to Customer any prepaid Service Fees covering the remainder of the Service Term of the affected subscription after the effective date of termination.  Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Service that is made or caused by someone other than NetChain (or someone acting at NetChain’s direction).

 

9.    INDEMNIFICATION

 

9.1    Customer's Obligations. Customer shall defend NetChain, its officers, directors, and employees against any expense, liability, loss, damage or costs (including reasonable attorneys' fees) incurred in connection with any suit, claim or demand made or brought against NetChain arising from or relating to (i) Customer's or its Users' breach of this Agreement; (ii) the Customer Data; or (iii) a dispute between a Customer and its vendors, suppliers or customers arising from such Customer's use of the Service or the NetChain Platform.  To the extent affected by the following, Customer's indemnification obligation shall not apply: (a) if the Customer Data is modified by NetChain or by any party under NetChain’s control, without Customer's authorization but solely to the extent the claim is caused by such modification or (b) to any use or disclosure of the Customer Data by NetChain not contemplated by this Agreement.

 

9.2    Process.  Customer's indemnity obligation is subject to the following: (i) Customer may not settle any claims that require NetChain to admit any civil or criminal liability or incur any financial obligation without NetChain's consent and (ii) NetChain shall cooperate to the extent necessary at Customer's cost in such defense and settlement.

 

10.    DISCLAIMER AND LIMITATIONS OF LIABILITY

 

10.1     DISCLAIMER OF WARRANTIES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NETCHAIN DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE PROVIDED OR OFFERED HEREUNDER.  NETCHAIN DOES NOT WARRANT THAT THE SERVICE OR THE NETCHAIN PLATFORM IS COMPLETELY SECURE OR IS FREE FROM BUGS, INTERRUPTIONS, ERRORS, OR OTHER PROGRAM LIMITATIONS, OR THAT ALL ERRORS WILL BE CORRECTED.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE PROVIDED TO CUSTOMER HEREUNDER ARE PROVIDED STRICTLY ON AN "AS IS" BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  NETCHAIN MAKES NO WARRANTY TO CUSTOMER'S VENDORS, SUPPLIERS OR CUSTOMERS OR TO ANY OTHER THIRD PARTY.  CUSTOMER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR RESULTS OBTAINED FROM USE OF THE SERVICE OR THE NETCHAIN PLATFORM.  NETCHAIN SHALL NOT HAVE ANY LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION PROVIDED IN CONNECTION WITH THE SERVICE OR THE NETCHAIN PLATFORM OR ANY ACTIONS TAKEN BY NETCHAIN IN ACCORDANCE WITH DIRECTIONS PROVIDED BY CUSTOMER.  NETCHAIN SHALL NOT HAVE ANY LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEBSITES THAT ARE ACCESSED VIA LINKS ON THE NETCHAIN PLATFORM.

 

10.2    LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NETCHAIN'S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE PROVIDED HEREUNDER (WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY) EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER THIS AGREEMENT.  THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.

 

10.3    EXCLUSION OF DAMAGES. IN NO EVENT SHALL NETCHAIN BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, EVEN IF NETCHAIN HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

10.4    GROSS NEGLIGENCE; WILLFUL MISCONDUCT. NOTHING HEREIN SHALL LIMIT NETCHAIN'S LIABILITY IN AN ACTION IN TORT (SEPARATE AND DISTINCT FROM A CAUSE OF ACTION FOR BREACH OF THIS AGREEMENT) FOR NETCHAIN'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

11    TERM; TERMINATION

 

11.1    Term.  This Agreement commences on the date that Customer clicks "I Accept" below and continues until all Order Forms subject to this Agreement have expired or terminated, unless this Agreement is earlier terminated in accordance with this Section 11.  User subscriptions commence on the subscription start date specified in the relevant Order Form and continue for the Service Term specified therein. Unless otherwise provided in the Order Form, subscription-based relationships shall automatically renew for additional periods of one (1) year on the same terms unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Service Term.

 

11.2    Termination for Breach. A party may immediately terminate this Agreement for cause: (i) upon fifteen (15) days' written notice of a material breach to the other party if such breach remains uncured at the expiration of such period or (ii) if the other 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 that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.  Upon any termination for cause by Customer, NetChain shall refund any prepaid Service Fees covering the remainder of the Service Term after the effective date of termination.  Termination shall not relieve Customer of the obligation to pay any Service Fees or other charges accrued or payable to NetChain prior to the effective date of termination.

 

11.3    Termination for Convenience.  Customer may immediately terminate this Agreement by cancelling its NetChain account at any time via the dashboard on the NetChain Platform.  Upon any termination for convenience by Customer, NetChain will not refund any prepaid Service Fees.  NetChain may terminate this Agreement upon sixty (60) days' prior notice to Customer.  Upon any termination for convenience by NetChain, shall refund any prepaid Service Fees covering the remainder of the Service Term after the effective date of termination.

 

11.4    Effect of Termination.  Upon expiration or termination of this Agreement for any reason, (i) all rights to access and use the Service and the NetChain Platform granted to Customer and its Users pursuant to this Agreement shall immediately terminate; (ii) NetChain may destroy or otherwise dispose of any Customer Data in accordance with Section 11.5; and (iii) the accrued rights of the parties at termination, or the continuation after termination of any provision expressly stated to survive or which implicitly survives termination, shall not be affected or prejudiced.

 

11.5    Return of Customer's Data.  Upon Customer's written request within ten (10) days after termination or expiration of this Agreement, NetChain shall make available for download a file of Customer Data in the format selected by NetChain in its sole discretion.  After such ten (10) day period, NetChain shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data on NetChain's systems or otherwise in its possession or under its control.

 

12    GENERAL PROVISIONS

 

12.1    Compliance with Laws and Export Control. Each party shall comply with all applicable laws and government regulations, including the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using the Service and/or NetChain Platform. Without limiting the foregoing, (i) each party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that Users do not, violate any export embargo, prohibition, restriction or other similar law in connection with this Agreement.

 

12.2    Notice. NetChain may give notice by means of a general notice on the NetChain Platform, electronic mail to the e-mail address on record in NetChain's account information or by first class mail to the address of record in NetChain's account information.  Such notice shall be deemed given immediately upon posting to the NetChain Platform, upon transmission if sent on a business day, if not, then on the following business day) if sent by electronic mail, or three (3) business days after sending if sent by first class mail.  Except as provided herein, Customer may give notice to NetChain by email to customerservice@netchain2.com or delivery by nationally recognized overnight delivery service or first class mail to NetChain to 7001 N. Scottsdale Road, Suite 2060, Scottsdale, Arizona85253, Attention: Office Manager.  Such notice shall be deemed given when received by NetChain.

 

12.3    Changes to Agreement.  NetChain reserves the right to modify the terms and conditions of this Agreement and its policies relating to the Service and/or the NetChain Platform at any time, in its sole discretion.  NetChain will post the revised terms and conditions of the Agreement or policies on the NetChain Platform and provide notice in advance of the effective date of such changes ("Amendment Date").  If the revised terms and conditions or policies are not acceptable, Customer's sole and exclusive remedy shall be to stop using the Service and to cancel Customer's account via the dashboard on the NetChain Platform or by notifying NetChain's customer service at customerservice@netchain2.com prior to the Amendment Date.  Continuing to use the Service and failing to cancel Customer's account after the Amendment Date constitutes Customer's acceptance of the revised terms and conditions of the Agreement.  Except as expressly provided herein, this Agreement may not otherwise be modified or amended except in a writing signed by a duly authorized representative of each party.

 

12.4    Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of NetChain.  NetChain may assign this Agreement, in whole or in part, to any third party in its sole discretion.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

12.5    Dispute Resolution.  This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.  Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement ("Dispute") shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.  However, notwithstanding the above, any Dispute shall be submitted to and finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (JAMS) then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes.  Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  Notwithstanding the foregoing, each party shall have the right to institute an action in state and federal courts located in San Francisco, California for injunctive relief.  The prevailing party in any dispute arising under this Agreement shall be awarded its reasonable attorneys' fees and costs.

 

12.6    Entirety. The Agreement, including without limitation, the Order Forms issued in connection herewith, comprises the entire agreement between Customer and NetChain and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. In the event of any conflict between this Agreement and the Order Form, the Order Form shall govern.  No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.  Customer agrees that Customer's purchase of any subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by NetChain with respect to future functionality or features.  No joint venture, partnership, employment, or agency relationship exists between Customer and NetChain as a result of the Agreement or use of the Service or the NetChain Platform.  The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.

 

12.7    Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Customer's failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, Internet and/or Internet service provider failures or delays, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions (each a "Force Majeure Event").  The party suffering a Force Majeure Event shall use commercially reasonable efforts to mitigate against the effects of such Force Majeure Event.

 

 

 

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