All customers are required to accept this new, November 2015 version of the NETLAB+
End User License Agreement in order to continue
receiving NETLAB+ software upgrades.
This Customer Agreement (this "Agreement") is a binding, legal agreement by and between the Academic Institution that you are employed by ("Customer") and Network Development Group, Inc. ("NDG"). You (the individual accepting this Agreement on behalf of Customer) represent and warrant that you are fully authorized to enter into this Agreement and bind Customer to its obligations hereunder. CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO ACQUIRING AND USING NDG'S SOFTWARE.
The official language of this Agreement is English. If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control.
1. DEFINITIONS. The following terms shall have the meanings set forth below:
1.1. "Academic Institution" means any one of the following: (a) an accredited, degree-granting higher education institution offering 2- or 4-year college degree programs, including technical schools offering accredited 2- or 4-year degrees, (b) a high school; and (c) a public education school system.
1.2. "Appliance" means the NDG-supplied server on which the Software is installed.
1.3. "Content" means instructional content (such as lab topologies, curricula, and lab exercises) used, or designed for use, with the Software.
1.4. "Current Release" means the latest version of the Software offered by NDG generally, including all Updates and Enhancements to it.
1.5. "Defect" means a failure of the Software to substantially conform to the functional specifications set forth in the current published Documentation.
1.6. "Designated Location" means the address of Customer where the Software is authorized to be installed, as identified in the Order.
1.7. "Designated Operating Environment" means the Appliance and other hardware and third-party software required for use of the Software, configured in accordance with the specifications and connectivity requirements provided by NDG to Customer. The Designated Operating Environment is described in further detail on NDG's website.
1.8. "Documentation" means the user manuals provided to Customer in connection with the Software that describe the functions and features of the Software and which are provided generally to NDG's customers.
1.9. "Enhancements" means improvements or additions added by NDG to the Software after the date of this Agreement and generally made available by NDG to its customers on Maintenance and Support. Enhancements do not include new functionality or major enhancements separately priced by NDG.
1.10. "Order" means a web-based, electronic or printed order for the Software submitted by Customer to NDG or an authorized NDG reseller. All Orders must be accepted by NDG or such reseller, and are subject to the terms of this Agreement.
1.11. "Pod" means an identified collection of physical equipment or virtual machines that can be scheduled for access through the Software.
1.12. "Software" means the NETLAB+ computer software program identified in the Order and installed on the Appliance, and all Updates and Enhancements to it, as well as any customized versions of Software developed by NDG for Customer pursuant to this Agreement.
1.13. "Software Edition" means either NETLAB Professional Edition (PE) or NETLAB Academy Edition (AE), each of which is more fully described on NDG’s website. NDG may update the descriptions of its Software Editions, and may add new Software Editions, from time to time.
1.14. "Supported Equipment" means the servers, switches, routers, and other physical equipment and virtual machines specified by NDG on NDG's website as being supported by the Software.
1.15. "Third Party Products" means the third party software products used in the Designated Operating Environment and described on NDG's website.
1.16. "Updates" means Software changes made by NDG to correct Defects in the Software delivered hereunder.
2. LICENSE GRANT.
2.1. License to Software. Subject to the terms of this Agreement, including payment of all applicable fees by Customer, NDG hereby grants to Customer a non-exclusive, non-transferable license to use in object code form only the Software and Documentation on a single Appliance in the Designated Location. The Software is licensed for use only in connection with: (a) the number of Pods associated with the Software Edition ordered by Customer, and (b) the Designated Operating Environment and Supported Equipment.
2.2. License Term. The term of this license is specified by the Software Edition ordered by Customer. NETLAB Academy Edition is an annual license and Customer must pay annual Support and Maintenance fees in order to continue to use the NETLAB Academy Edition Software. NETLAB Professional Edition is a perpetual license, and Customers do NOT need to pay annual Support and Maintenance fees in order to continue to use the NETLAB Professional Edition Software. The license term shall commence on the date of delivery of the Software to Customer as evidenced by Customer's signed receipt package delivery, or, if there is no signed receipt, on the date of shipment of the Software.
2.3. Third Party Products. The Appliance includes certain Third Party Products which are provided by NDG at no charge along with the Software. Customer agrees to comply with the license terms and conditions of third party vendors of such Third Party Products. An applicable list of the Third Party Products and the license terms and conditions, and details concerning how Customer can obtain the Third Party Products on its own, can be found by visiting NDG's website and clicking on the "Legal Notices" section.
2.4. Use. Customer and its authorized employees, contractors, and students, as well as authorized employees, contractors and students of other Academic Institutions ("Affiliated Institutions") who have an affiliation by means of contract or other formal relationship with Customer ("Authorized Users") shall have the right to access and use the Software only: (a) in executable form as installed at the Designated Location and in the Designated Operating Environment; and (b) for their own internal use. Customer may recover its reasonable, direct costs from Authorized Users, but may not operate as a hosted service center or outsourcer for the Software. Notwithstanding the foregoing, Customer may not allow more than the maximum number of permitted Affiliated Institutions associated with the Software Edition ordered by Customer to use the Software under this Agreement. Customer shall be fully responsible for Authorized Users’ use of the Software and compliance with this Agreement.
2.5. License Restrictions. Customer may not copy, modify, assign, sublicense, sell or rent the Software or any interest therein (in the event Customer grants a security interest in the Software, the secured party has no right to use or transfer the Software and/or any services). Nor may Customer reverse engineer, disassemble, decompile or reverse compile the Software (the foregoing restriction includes but is not limited to review of data structures or similar materials produced by the Software) or in any way change the Software or related operating system. Customer further agrees not to disclose, publish or describe the results of any testing or benchmark tests of the Software to any third party without NDG’s prior written consent. Any rights not expressly granted herein are hereby expressly reserved to NDG. Customer understands and agrees that, in order to facilitate quality control, whenever an error event is generated in connection with Customer's use of the Software, a notification may be electronically sent by Customer to NDG. In addition, the Software may include product activation and other technology designed to prevent unauthorized use and copying. This technology may cause the Software and associated hardware to automatically connect to the Internet, may rely on license keys, and may prevent uses of the Software that are not permitted. Customer consents to transmission of Software usage information to NDG and to NDG’s use of license keys and other technology designed to prevent unauthorized use and copying.
2.6. Changes. Customer may change the Designated Location to a new address within the same organization by providing written notice to NDG. No changes to the Appliance shall be made by Customer without written consent and direction of NDG. In particular, Customer may not access or change the Appliance operating system or software, or change its system configuration, except as provided by the NETLAB+ Software user interfaces.
2.7. Connectivity Requirements. Customer agrees that in order for the Software to function and for NDG to provide Maintenance and Support, including Updates and Enhancements to the Software and updated NDG-Supplied Content, Customer will provide NDG with access to components in Customer’s Designated Operating Environment and authorizes NDG to perform changes to such components as needed. To facilitate this access, Customer will meet the connectivity requirements set out in NDG's website, as modified from time to time.
3. DESIGNATED OPERATING ENVIRONMENT.
3.1. Implementation. If specified in the Order, NDG or an NDG business partner will deliver to Customer the Appliance as described at the NDG website, will install the Software on the Appliance and will use commercially reasonable efforts to integrate all other related software components required to operate the Software, for operation in the Designated Operating Environment. Except to the extent specified in the Order, Customer will be solely responsible for setting up the Designated Operating Environment. All Appliances and other hardware sold by NDG hereunder will be subject solely to the warranties provided by the original manufacturer to the extent that such warranties can be transferred to Customer.
3.2. Restrictions. Customer agrees not to access, attempt to access, modify or attempt to modify the underlying operating system or operating system command line interface (shell) of the Appliance.
3.3. Disclaimers. NDG uses diligent efforts to ensure that the Software and Appliance (if supplied by NDG) work with the other parts of the Designated Operating Environment and the Supported Equipment. However, NDG does not provide any warranties or compatibility guarantees, expressed or implied, for any part of the Designated Operating Environment, the Supported Equipment, or any other third party hardware or software. Standard equipment recommendations from NDG are based on the models and specifications that have been tested by NDG and/or customers. Only NDG’s standard equipment recommendations in the Designated Operating Environment are supported, even if NDG offers opinion or speculation about other proposed hardware. Certain third party software (such as VMware virtualization products) may have additional hardware requirements. Customer is solely responsible for checking with the vendor to review third party software and hardware requirements and compatibility. Other site-specific capacity requirements, including memory, CPU, and storage may factor into Customer’s equipment requirements. Customer acknowledges that NDG has no control or responsibility for changes to Supported Equipment made by the manufacturers of or providers of support for such Supported Equipment, including but not limited to changes to Supported Equipment software interfaces and device drivers, and that NDG may remove any equipment from the list of Supported Equipment at any time, with or without notice.
4.1. NDG-Supplied Content. NDG may include with the Software its own and/or third-party Content ("NDG-Supplied Content"). In addition, the Software may have configuration options that allow Customer to indicate that Customer has the right to certain third-party Content (e.g., by participating in a program provided by a third-party information technology vendor). If Customer indicates to NDG by making the appropriate configuration selections in the Software that it is entitled to receive Content from one or more information technology vendors, Customer represents and warrants that it has the appropriate business partnership or other contractual relationship with such information technology vendor(s) that give Customer the right to receive such Content. Customer will notify NDG by e-mail to firstname.lastname@example.org if its right to receive any such third-party Content is terminated or changes. NDG may, but is under no requirement to, verify that Customer has the rights to receive selected third-party Content. In its discretion, NDG may make certain NDG-Supplied Content available to Customer only upon payment of an additional fee.
4.2. Disclaimer. All NDG-Supplied Content is provided “AS-IS”, without warranty of any kind, NDG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO NDG-SUPPLIED CONTENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
4.3. Customer Content. Customer may prepare and upload its own Content ("Customer Content") for use with the Software. Customer represents and warrants that Customer Content does not infringe or violate the intellectual property or any other rights of any third party. Customer retains sole rights in and to its Customer Content. NDG does not obtain any rights to use any Customer Content under this Agreement.
4.4. Blocking of Content. NDG may restrict Customer from access to Content to which NDG in its sole discretion determines Customer does not have authorization.
5. MAINTENANCE AND SUPPORT.
Maintenance and Support services will be provided to Customer as set out in the Maintenance and Support Addendum to this Agreement. The initial Maintenance and Support term begins on the date of shipment of the Software and continues for an initial annual term. Thereafter, Maintenance and Support shall automatically renew for subsequent annual renewal terms, unless either party provides the other party with at least sixty (60) days prior written notice of its intent not to renew Maintenance and Support. NDG shall have no obligation to maintain and support the Software if Customer is in breach of this Agreement, including but not limited to breach of Customer’s obligations relating to access to the Appliance operating system in Section 3.2 above.
6.1. NDG Intellectual Property. As between NDG and Customer, NDG shall exclusively own all Software, the Documentation, the NDG-developed Content, and all associated data models, algorithms, processes, screen formats, reporting formats, and other material and information, including all associated patents, copyrights, trademarks, service marks, trade secrets and other intellectual property related to the foregoing (collectively "NDG Intellectual Property"); provided however, that the NDG Intellectual Property shall not include any materials delivered to NDG by Customer. Except as expressly set forth in this Agreement, Customer obtains no ownership or other rights in or to the NDG Intellectual Property. Title shall not pass for the Software to Customer or any other third party on account of this Agreement. Customer may not share administrator-level documentation with any third party, including without limitation any Affiliated Institutions.
6.2. NDG Trademarks. Customer acknowledges and agrees that NDG and its licensors’ trademarks, brand names and copyright notices will be included on the Software and Documentation, unless Customer has acquired as an option on the Order the removal of NDG trademarks and brand names from the Software. Customer agrees not to remove or modify any trademarks, brand names or any other proprietary rights notices included on the Software and Documentation.
7.1. Fees. In consideration of the license granted and services and hardware provided under this Agreement, Customer shall pay NDG the fee(s) set forth in the Order. The initial fee is due prior to delivery of the Software. Fees for renewal license and/or renewal service terms are due prior to the date of renewal. NDG agrees to provide notice online of Customer’s date of renewal and the fees due for the renewal term. Upon request, NDG will provide Customer with an invoice for an Order or for a renewal term; provided that the delivery of such invoice will not change the due dates for fees due for renewal terms. If Customer does not pay within the time frame set out above, then NDG may, at its option, do either or both of the following: (a) suspend providing support, maintenance and any other agreed services to Customer; and (b) impose a late charge of one and one half percent (1.5%) per month or the maximum rate allowed by law.
7.2. Taxes. Customer understands and agrees that amounts for taxes have not been included in any Fees and Customer agrees to pay all present or future sales, excise, use, value-added or other similar taxes or duties (not including taxes or duties on the income of NDG) levied or based on payments made pursuant to this Agreement.
8.1. Termination for Default. Upon breach of any of the terms of this Agreement by Customer, NDG may terminate this Agreement upon notice to Customer, and upon such termination NDG may use electronic means to disable the Software. This Agreement and the license rights herein will automatically terminate for NETLAB Academy Edition Customers that do not renew and pay for Support and Maintenance.
8.2. Rights and Duties Upon Termination. Upon termination by NDG for Customer's default, all amounts under this Agreement shall become immediately due and payable. Upon termination of this Agreement, Customer’s rights to the Software shall cease, and Customer shall discontinue all use of the Software and Documentation in Customer’s possession and/or control and destroy or return to NDG all copies of the Software and Documentation.
9. WARRANTIES AND DISCLAIMERS.
9.1. Limited NDG Warranty. NDG warrants for a period of sixty (60) days from shipment that the Software shall operate without Defects. Customer’s sole remedy under this warranty shall be to receive Maintenance and Support services as described herein. THIS LIMITED EXPRESS WARRANTY SPECIFIED ABOVE IS THE ONLY WARRANTY MADE BY NDG AND NDG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. NDG DOES NOT WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH ANY RELEASE OTHER THAN THE MOST CURRENT RELEASE, NOR DOES NDG WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH CUSTOMIZED SOFTWARE. NDG does not warrant that the Software will be error-free or uninterrupted, or that the Software will meet Customer’s requirements.
9.2. Negation of Warranties. The above warranty shall be negated by (a) Customer's modification of the Software or Documentation, or use of the foregoing in a manner not permitted by this Agreement, (b) Customer's use of the Software in conjunction with third party software or hardware not provided by NDG or by NDG's agent if provided as authorized by NDG, (c) installation or use of the Software in an environment other than the Designated Operating Environment or access to or attempted access to or modification or attempted modification of the related underlying operating system, or (d) failure to install corrective code or the current version of the Software, including Updates and Enhancements to it.
9.3. Remedies. Remedies for the breach of warranty obligations hereunder shall be limited to replacement or repair of such non-conforming Software or portion thereof. THE FOREGOING SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE SOFTWARE.
9.4. Customer Warranty. Customer warrants that: (a) it is an Academic Institution in good standing whose primary mission is education and training; (b) it has all right and authority to enter into and perform under this Agreement; and (c) the entering into and performance of this Agreement will not violate any other agreements or laws applicable to Customer.
9.5. Customer Data. Customer agrees that Customer is solely responsible for maintaining the privacy and security of any personally identifiable information and other Customer data that may be stored on the Appliance or any other Customer systems, and that Customer will comply with all applicable privacy laws associated with such data.
9.6. LIMITATION OF LIABILITY. NDG'S AND ITS LICENSORS’ AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO NDG DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL NDG AND ITS LICENSORS BE LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, AND LOSS OF DATA, EVEN IF NDG HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. ANY CLAIM AGAINST NDG ARISING UNDER THIS AGREEMENT MUST BE BROUGHT BY CUSTOMER AND NOT BY ANY THIRD PARTY, AND MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. THE LIMITATIONS OF LIABILITY HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
10.1. By NDG. NDG shall indemnify, defend and hold harmless Customer against any loss, damage or expense actually awarded against Customer as a result of claims, actions, or proceedings brought by any third party alleging infringement by the Software or Documentation of any United States of America copyright, trademark, patent, or other proprietary rights, and against its reasonable attorneys' fees and any money damages or costs awarded in respect of any such claim(s) and any suit raising any such claim(s); provided, however, that Customer shall have given NDG prompt written notice of such claim and cooperates with NDG in the defense of the claim. NDG shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. Further, NDG shall have no liability for any infringement action or claim that is based upon or arises from the matters described in Section 10.2. This Section sets forth the exclusive remedy of Customer against NDG with respect to any action or claim of infringement under this Agreement.
10.2. By Customer. Customer shall indemnify, defend and hold harmless NDG against any loss, damage or expense incurred by Customer as a result of claims, actions, or proceedings brought by any third party arising from (a) Customer's, or its agents' or employees' breach of the terms of this Agreement; or (b) acts of negligence or willful misconduct by any employee, or agent, of Customer; (c) failure of Customer to install corrective code or the most current version of the Software; or (d) code and/or design specifications furnished by Customer or its agent, only to the extent permitted by law. Customer will indemnify NDG against its reasonable attorneys' fees and any money damages or costs awarded in respect of any such claim(s) and any suit raising any such claim(s). If the claim involves the intellectual property of NDG, then NDG shall be entitled to have sole control over the defense and/or settlement of such claim in the manner and in accordance with the procedure described above, and such election by NDG shall have no effect upon Customer's obligations to indemnify and hold harmless hereunder. If the claim does not involve the intellectual property of NDG then Customer shall be entitled to have sole control over the defense and/or settlement of such claim and NDG agrees to cooperate with said defense.
10.3. Audit. Upon reasonable prior written notice and during normal business hours and no more than once in a twelve month period, NDG, its agents or representatives, shall have the right at its own expense to visit the premises of Customer, including all Designated Locations, if applicable, and any applicable books and records of Customer for the purpose of conducting a business and/or technical audit to determine compliance with the terms of this Agreement. Further, NDG may remotely check compliance with the terms of this Agreement by accessing and reviewing the Software. Customer will provide reasonable assistance and access to information in the course of such audit. Should NDG find that Customer is not in compliance, Customer shall, in addition to paying additional damages as may be due, be responsible for the costs of the audit and all related expenses. In addition, and without limiting the foregoing, Customers agrees to have an authorized officer or manager document and certify that Customer’s use of the Software conforms to this Agreement within 14 calendar days after NDG’s request.
11. CONFIDENTIAL INFORMATION.
11.1. Confidentiality. Customer understands and agrees that the Software, Documentation and business plans and processes of NDG constitute trade secrets and confidential information of NDG ("Confidential Information"). Except as expressly provided herein, Customer shall not disclose to or allow a third party to access or use the Confidential Information, or use such Confidential Information except as expressly allowed in this Agreement or as required by law; provided that if Customer is required by law to disclose any Confidential Information, then Customer will provide NDG with notice of such requirement and allow NDG to attempt to limit the scope of any required disclosure in order to protect NDG’s Confidential Information and trade secrets.
11.2. Use of Customer Name. Customer acknowledges and agrees that, unless Customer has expressly acquired in the Order the ability to restrict NDG's rights under this Section, NDG may use Customer’s name in a list of clients and testimonials on the NDG web site and other marketing materials.
12.1. Governing Law. If Customer is located in the United States of America, then this Agreement shall be governed by and construed in accordance with the substantive laws of the state of Customer’s principal place of operations, without regard to its conflicts of laws principles and without regard to the United Nations Convention On Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. If Customer is located outside of the United States of America, this Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina, the United States of America covering contracts made and to be performed in that State, without regard to its conflicts of laws principles and without regard to the United Nations Convention On Contracts for the International Sale of Goods. Each party agrees to non-exclusive jurisdiction and venue for any claim brought under this Agreement in a court of competent jurisdiction in Wake County and Durham County, North Carolina, United States of America.
12.2. Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of causes beyond such party's reasonable control, despite the reasonable efforts and without the fault or negligence of such party. Any party experiencing such an event shall give as prompt notice as possible under the circumstances.
12.3. Severability. If any provision of this Agreement is held to be unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent or, if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
12.4. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.
12.5. No Third Party Beneficiaries. The parties agree that this Agreement is for the benefit of the parties hereto and is not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to this Agreement or any part or specific provision of this Agreement.
12.6. Compliance with Laws. Customer shall comply with all federal, state, foreign and local laws, statutes, rules and regulations of the United States and other applicable exports and import laws, including all export, re-export and foreign policy controls and restrictions applicable to this Agreement and in the conduct of its business. Without limiting the foregoing, Customer shall ensure that neither the Software, nor any direct product thereof, is exported, directly or indirectly, in violation of applicable laws. Failure to comply with this provision shall constitute a material default under this Agreement entitling the non-breaching party to terminate this Agreement.
12.7. Entire Agreement. This Agreement, including all of its attachments, each of which is incorporated into this Agreement, is the entire agreement between the parties with respect to its subject matter. No purchase order terms or other terms provided by Customer to NDG will apply or form any part of this Agreement. This Agreement may amended only by the mutual written agreement of the parties, which may include Customer’s electronic acceptance of a new form of NDG Customer Agreement that is included with a new Software version, Update or Enhancement.
12.8. Oracle; MySQL. Oracle America, Inc. ("Oracle") or its licensor retain all ownership of MySQL database software ("MySQL") that is embedded in the Software. Customer’s use of MySQL is subject to a limited license and is restricted to use in connection with the Software, and Customer may not use MySQL for rental, timesharing, subscription service, hosting, or outsourcing. Customer agrees that, to the extent permitted by applicable law, Oracle will have no liability for: (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from use of the Software. Customer agrees that NDG may assign its right to audit use of the Software under Section 10.3 to Oracle and/or may report the audit results to Oracle. If NDG assigns its audit right to Oracle, Oracle shall not be responsible for Customer’s costs incurred in cooperating with the audit. Oracle is an intended third party beneficiary of this Agreement. MySQL may include source code, which source code is governed by the terms of this Agreement. In addition, third-party technology that may be appropriate or necessary for use with MySQL may be specified in the Documentation or on the Legal Notices section of NDG’s website, and is licensed to Customer only for use with the Software under the terms of the third party License Agreement specified in the Documentation or the Legal Notices section of NDG’s website, and not under the terms of this Agreement. Customer agrees that Customer has not relied upon the future availability of any programs or services in entering into any payment obligations associated with this Agreement.
12.9. Survival of Provisions. Sections 1, 4, 6, 7, 8, 9, 10, 11, and 12 and all accrued and unpaid obligations arising hereunder shall survive the termination hereof.
MAINTENANCE AND SUPPORT TERMS
1. MAINTENANCE AND SUPPORT.
1.1. Error Reporting. Customer may report Defects via NDG’s website, phone or e-mail. Customer agrees to follow the support procedures set forth on NDG's website, which also contains NDG’s standard support hours.
1.2. Operational Support. Customer may also call or e-mail NDG with general questions on how to install or operate the Software. However, NDG’s obligation to provide this operational support is limited to the number of operational support hours associated with the Software Edition ordered by Customer, or otherwise as specified on NDG’s website.
1.3. Annual Software Maintenance. NDG shall use commercially reasonable efforts to promptly address Defects reported by Customer, and shall otherwise make commercially reasonable efforts to maintain the Software so that it operates without Defects.
1.4. Updates and Enhancements. NDG shall supply Customer with Updates and Enhancements that are released generally to other customers on support and maintenance. Enhancements to the Software shall be developed at NDG's sole discretion. Updates and Enhancements will not be provided unless payment of the support and maintenance fee is current.
1.5. On-Site Services. Maintenance and Support does not include any on-site services. On-site installation services are available for a separate fee from NDG and from authorized third-party installers. NOTE: NDG is not required to support or assist third-party installers who are not authorized by NDG. See NDG’s website for additional details.
1.6. Other Support Terms. Multi-year support terms and other installation, configuration and premium support services may be specified in the Order. All services provided are subject to the terms of this Agreement.
2. LIMITATIONS AND CUSTOMER RESPONSIBILITIES
2.1. Customer Issues. If Customer notifies NDG of a problem and NDG determines that the problem is due to: (a) Customer's incorrect or improper use of the Software; (b) failure to comply with the terms of this Addendum or the Agreement; (c) third-party hardware, software or Content issues; or (d) connectivity or networking issues including bandwidth, third-party user or infrastructure-installed software, firewalls, and other Customer or end user premise setup issues, NDG shall have no obligation to take any action to correct the problem. At Customer's request and at NDG's sole discretion, NDG may attempt to correct the problem, and Customer shall pay NDG the then current time and materials rate for all services provided and all expenses of NDG associated with performance of those services, whether or not the problem is corrected.
2.2. Current Version. NDG's obligations under this Addendum shall apply only to the Current Release and the immediately prior release, and only to Customer’s use of the Software in connection with the Supported Equipment.
2.3. Third Party Products. NDG, in order to assist Customer, may assist in supporting the Designated Operating Environment, the Supported Equipment, and the Third Party Products, but is under no obligation to do so. Customer understands and agrees that the Third Party Products may not be supported and/or maintained by the Third Party Product vendor. NDG may add or remove Third Party Products so long as the functionality of the Software is not materially adversely affected.
2.4. Data. NDG shall have no responsibility for loss of or damage to Customer's data.
2.5. Modified Software. Maintenance and Support does not cover modified Software or Software used contrary to the terms of the Agreement. Without limiting the foregoing, Maintenance and Support does not cover problems caused in whole or in part by Customer's, or its agents', access to, attempted access to, modification of or attempted modification of the related operating system or operating system command line (shell).
2.6. Customized Software. Maintenance and Support of customized Software is not covered by this Addendum; rather support of customized Software will be covered by mutually agreed upon terms and conditions set out in a separate agreement and separately priced.
2.7. Connectivity Requirements. NDG shall not be obligated to provide Maintenance and Support if the connectivity requirements described in Section 2.7 of the Agreement are not provided by Customer.
2.8. Delay. NDG shall not be responsible for delays in performance or failure to perform under any provision of the Agreement or this Addendum to the extent such delays or failures result from Customer's acts or omissions.
2.9. Customer Assistance. Customer shall perform tasks as requested by NDG to aid in the resolution of problems, and shall implement all reasonable workarounds to problems as directed by NDG.
2.10. Disclaimer. NDG shall not be responsible under this Addendum to provide services, Updates, Enhancements, or any other Maintenance and Support for Software if any of the events set out in Section 10.2 (a), (b), (c) and/or (d) of the Agreement have occurred.
2.11. Contact Persons. Customer will designate no more than two (2) of its employees as "Contact Persons" to serve as the sole designated contacts for dealing with NDG on support questions. Before contacting NDG with a question, a Contact Person shall take reasonable steps to resolve the question. For example, the Contact Person shall recreate and verify the alleged problem and review the documentation before contacting NDG. Calls and e-mails for Support Services shall be initiated by Customer to NDG only by a Contact Person. Customer will notify NDG immediately if one or both of its Contact Persons changes.
3. OTHER TERMS
3.1. Lapse. In the event Customer terminates Support and Maintenance and subsequently wishes to reinstate Support and Maintenance, Customer must pay NDG for all (or, in NDG’s sole discretion, a specified portion of) intervening Support and Maintenance Fees associated with the lapse of Support and Maintenance.
3.2. Feedback. NDG may use any feedback regarding any suggested improvements related to the Software provided by Customer for any purpose, including without limitation to modify, supplement, or improve the Software and Content, without payment or compensation to Customer and with or without attribution.
3.3. Updates to Third-Party Systems. For the avoidance of doubt, NDG will not be required to provide any Updates or new code, or to provide any other services, that may be needed to enable the Software to work with different third-party software and systems than the third-party software and systems with which the Software was originally implemented.