THESE SOFTWARE SERVICE TERMS AND CONDITIONS (“Agreement”) shall govern the provision of all services and support provided by Netthrob (“Netthrob”) for the person or entity that received or shall receive software (“Software”) from Netthrob (“Licensee”). This Agreement enters into force (the “Effective Date”) on the effective date of an order for Software between Netthrob and the Licensee which refers to this Agreement (“Order”). Netthrob and Licensee may be referred to individually as “Party” and collectively as “Parties”.

  • BY CHECKING THE BOX NEXT TO THE STATEMENT “I ACCEPT THE TERMS OF THE SOFTWARE SERVICE AGREEMENT” LICENSEE AGREES TO BE BOUND BY THE FOLLOWING AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THIS SOFTWARE SERVICE AGREEMENT DOES NOT ENTER INTO FORCE AND NEITHER PARTY SHALL HAVE ANY RIGHTS OR OBLIGATIONS HEREUNDER.
  • ONCE LICENSEE HAS AGREED TO THIS AGREEMENT IT SHALL NOT BE ENTITLED TO A CANCEL THE SERVICE OR RECEIVE A REFUND, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH HEREIN BELOW OR OTHERWISE REQUIRED BY LAW.
  • 1. SOFTWARE SERVICE

    a. Netthrob agrees to provide web-based service to remedy defects in and remove bugs from the Software (“Service”). It will provide the Service by replacing the Software or by taking other actions it deems appropriate to correct defects or bugs, provided that the Licensee notified Netthrob immediately after discovery of the bug or defect.

    b. Netthrob may, at no additional charge, make modifications to Software to improve its operation and reliability or to comply with legal requirements.

  • 2. EXCLUSIONS FROM SERVICE

    a. Netthrob provides support only for qualified Software. Hardware and software not supplied or not approved by Netthrob and software for which Licensee does not allow Netthrob to incorporate engineering improvements will be considered nonqualified software. Licensee is responsible for removing nonqualified software to allow service of qualified Software.

    b. Service does not include repairing damage to Software caused by site conditions that do not conform to Netthrob’s specifications, or failures resulting from non-conformance with Netthrob site specifications such as air conditioning failure or unusual electrical conditions.

    c. Netthrob’s obligation to provide Service shall be strictly conditioned upon Licensee being in full compliance with all terms and conditions of this Agreement.

    d. Netthrob shall have no obligation and refuse to perform Services as to defects or errors or other problems caused directly or indirectly by: (1) defects, misuse or failure of any hardware, software, data or other tangible or intangible items supplied by Licensee or third parties not retained by Netthrob; or (2) modification, improvement or other alteration of any Software (including any underlying system or other software which interacts with the Software) or equipment upon which the Software is operating, by Licensee or any third party. No provision of any Order shall act as or imply the existence of any express or implied warranty that the Software shall, at any time, operate on a continuous or error free basis. Netthrob may refuse to perform services if such services may infringe upon the intellectual property right of any third party or the violation of any court order or federal, state or local law, rule or regulation.

    e. Netthrob shall not be responsible for errors in or damage to any software or data (or for any resulting down-time, lost processing time or monetary loss or expense) directly or indirectly caused by or resulting from acts beyond the control of Netthrob, including, without limitation, conflicts in operating system software (other than between Software and operating system software), conflicts in the host application of the Software (other than between Software and the host application of the Software), conflicts between any of the Software and other software not stipulated in the Order, re-configuration of software or equipment not required to resolve any problem for to which maintenance has been provided, interaction of the equipment or Software with other machinery and equipment not stipulated in the Order, operator error, data error, acts of God, war, fire, lightening, water, tornado, windstorm, hail, earthquake, explosion, smoke, aircraft, motor vehicle, collapse of building, strike, riot, vandalism or other civil disturbances, modification, neglect or misuse, failure of electrical power, air conditioning, or humidity control or any cause other than ordinary use.

  • 3. UPGRADES AND UPDATES

    a. Netthrob shall provide Licensee with any future patches, fixes, corrections, enhancements program code changes, and improvements of the Software (“Updates”) as well as any enhancement as well as modifications designated by Netthrob with a higher version number of the Software (“Upgrades”) that are created by Netthrob.

    b. Netthrob will provide Updates and Upgrades to Licensee free of charge and via the Internet/online along with updated documentation in electronic form without a fee.

  • 4. OBLIGATIONS OF THE LICENSEE
  • Licensee shall be responsible for security of its proprietary and confidential information and for maintaining a procedure external to the Software for reconstruction of lost or altered files, data or programs; and have a representative present at Licensee’s site at all times when Services are being performed by Netthrob.
  • 5. FEES, COSTS AND TAXES

    a. Licensee shall pay Netthrob a half-yearly/ yearly service fee for the Services. The fee is payable within fourteen (15) calendar days after the trial period.

    b. Licensee agrees to pay Netthrob the then current standard rate for Netthrob’s services, time and materials, for any services Licensee requests from Netthrob which are not within the scope of the Services within the meaning of section 1 hereof.

    c. Licensee is responsible for any sales or use tax or any other fee imposed by federal, state, local, or other governmental entities pertaining to the services rendered and property provided under this Agreement.

  • 6. PROPRIETARY RIGHTS

    Licensee acknowledges and agrees that corrected, replaced, or updates Software remains the property of Netthrob and constitutes a trade secret of Netthrob.

  • 7. TERM AND TERMINATION

    a. The term of this Agreement shall commence on the Effective Date and shall have an initial term of twelve (12) months. It may be terminated to the end of the initial term or any Subsequent Terms upon one (1) day’s prior written notice. Unless so terminated, this Agreement shall automatically renew for subsequent twelve months periods (each a “Subsequent Term”).

    b. This Agreement may be terminated by Netthrob at any time in writing if Licensee breaches any material obligation under the End User License Agreement Licensee has entered into with Netthrob (“EULA”), and such breach remains uncured after fourteen (15) day’s written notice of such breach.

    c. The life cycle of each version of the Software is two years after that version’s last delivery to or installation at any Netthrob Licensee. Upon expiry of this time period, such version of the Software reaches “end-of-life” status. Netthrob shall be entitled to terminate this Agreement with three (3) months prior written notice for any version of the Software which has reached end-of-life status.

  • 8. WARRANTY DISCLAIMER
  • TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, LICENSOR DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER.
  • 9. EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY

    a. For any breach of Netthrob’s obligations contained in Section 1 above, Licensee’s exclusive remedy, and Netthrob’s entire liability, shall be the re-performance of the Services or the replacement of the Software at Netthrob’s sole cost.

    b. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AGAINST NETTHROB FOR ANY BREACH OF ITS OBLIGATIONS UNDER SECTION 1 HEREOF OR FOR ANY OTHER CLAIM AGAINST NETTHROB BASED ON ANY DEFECTS IN OR FOR NONPERFORMANCE OR DELAY IN PERFORMANCE OR DELIVERY OF SERVICES, WHETHER BASED ON CONTRACTS, WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER THEORY WHATSOEVER AND IS MADE EXPRESSLY IN LIEU OF ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. THE AVAILABILITY OF ANY WARRANTY AS TO THIRD PARTY SOFTWARE IS STRICTLY LIMITED TO THOSE WARRANTIES, IF ANY, PROVIDED BY THE MANUFACTURER THEREOF.

    c. IN NO EVENT SHALL NETTHROB OR ITS AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF NETTHROB HAS BEEN ADVISED OF THE POTENTIAL THEREOF. WITHOUT EXPANDING NETTHROB’S LIABILITY AS SET FORTH ABOVE, NETTHROB’S LIABILITY FOR DEFECTS, NONPERFORMANCE OR DELAY IN THE PERFORMANCE OR DELIVERY OF SERVICES SHALL IN NO CASE EXCEED THE AMOUNT ACTUALLY PAID TO NETTHROB FOR THE SERVICES THAT ARE THE CAUSE OF THE CLAIM.

    d. Netthrob provides no express or implied warranty of merchantability or fitness as to third-party software, or to any services provided by third parties and Licensee may look only to such provider for warranty.

  • 10. GENERAL TERMS AND CONDITIONS OF SALE
  • Netthrob’s General Terms And Conditions of Sale (www.Netthrob.com/terms) shall be fully incorporated in this Agreement by this reference. In case of any conflicts between any provisions of this Agreement and of the General Terms of Sale, the provisions in the body of this Agreement shall prevail.
  • 11. ENTIRE AGREEMENT, SEVERABILITY

    a. This Agreement constitutes the full and complete understanding and agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior communications, understandings and agreements between the Parties relating hereto.

    b. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to violate any statute or regulation or otherwise be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity or such unenforceability shall remain in full force and effect. The parties hereby agree to substitute for any invalid or unenforceable provision a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

  • 12. MODIFICATIONS AND WAIVER

    a. Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by the parties hereto.

    b. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to violate any statute or regulation or otherwise be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity or such unenforceability shall remain in full force and effect. The parties hereby agree to substitute for any invalid or unenforceable provision a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

    b. No waiver by either party hereto of any provision of this Agreement shall operate or be construed as a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.

  • 13. NOTICES

    a. Any notices provided for hereunder shall be given by hand-delivery or first class certified mail, return receipt requested, postage prepaid, or by overnight courier, or by electronic mail.

    b. A notice given by registered or certified mail shall be deemed effective five (5) days after the date of mailing. A notice given by hand-delivery, overnight courier or electronic mail shall be deemed effective upon delivery to Licensee.

  • 14. ASSIGNMENT AND SUCCESSORS

    a. The Licensee shall not assign this Agreement or any rights granted hereunder to any third party without the prior written permission of Netthrob.

    b. All of the terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their representatives, heirs, successors, trustees, transferees, lawful assigns (in accordance with this Agreement) and legal representatives.