SUBSCRIPTION SERVICES EXHIBIT

 

The terms in below apply to NetXpress Subscription Services if Subscription Services are included on an SOW. These terms become part of the applicable SOW.

1. Definitions:

1.1 “Co-Location” or “Co-Lo” means the NetXpress offering entitled “Co-Location” or “Co-Lo” as described in an applicable SOW.

1.2 “Connectivity” means the NetXpress offering entitled “Connectivity” (as described in an applicable SOW).

1.3 “Data Center” means a data center managed by a third party vendor or its affiliates where equipment and applications are hosted for Client use and from which Subscription Services may be provided.

1.4 “Exchange Connectivity” means the NetXpress Subscription Service offering entitled “Exchange Connectivity” as described in an applicable SOW.

1.5 “Managed Services” means the NetXpress managed Subscription Service selected by Client on an applicable SOW

1.6 “Monthly Recurring Charge” or “MRC” is a nonrefundable monthly payment due for the full term of the selected Services.

1. 7 “Non Recurring Charge” or “NRC” is a nonrefundable one-time payment as set forth on the SOW.

1. 8 “Subscription Services” means any NetXpress Subscription Service offering listed on a SOW unless included by product name in a SOW for Subscription Services, software subscriptions are not included in Subscription Services.

 

2. Terms Applicable to All Subscription Services:                  

 

 2.1. Contract Term and Termination: The Initial term for each of the Subscription Services selected by Client is set forth in the applicable SOW and unless otherwise set forth in a SOW, begins upon activation of the applicable Service. The “term” of any Subscription Service shall be the initial term and all renewal terms, if any. This Agreement shall automatically renew for successive one (1) year renewal terms unless notice of non-renewal is delivered to the non-terminating Party at least ninety (90) days prior to the end of the then-current term. NetXpress may increase pricing at the start of any renewal term. Client acknowledges that it received discounted pricing in exchange for a Term commitment, and such discount is not earned if Client cancels prior to the end of the committed Term. Upon receipt of a request for early termination, Client shall pay the amount due for the entire committed Term (the remaining amount due is the "Early Termination Fee" or “ETF”) plus any other amounts due. Such termination shall not be effective until the final invoice is paid. Upon termination or suspension of a SOW, all applicable Services shall cease and Client shall, no later than the termination date, pay NetXpress all amounts due up to the effective date of such termination, including for ETFs, any non-cancelable items and any decommissioning expenses.

2.2. Suspension of Services: The suspension of Subscription Services in the event of a payment default by Client shall not be a NetXpress breach and shall not apply toward any remedies due under an applicable service level agreement.

2.3. Taxes and Fees: Charges for Subscription Services may be subject to: (a) a property tax surcharges; (b) monthly cost recovery fees to reimburse NetXpress for various governmental taxes and surcharges; (c) State sales tax; (d) Federal universal services and 911 prevailing fees; and (e) any other fees or taxes charged to NetXpress by service providers (each a “Fee”). Such fees will be listed in invoices and are subject to change, and all but sales tax must be applied regardless of whether Client has delivered a valid sales tax exemption certificate. The Fees are not set by NetXpress and can be adjusted at any time by the applicable utility provider, government entity or regulator.

2.4. Compliance: Client is solely responsible for (i) complying with Client’s software licenses; (ii) for specifying to NetXpress all requirements necessary for Client to maintain its data in compliance with data privacy/security laws and regulations; and (iii) compliance with any industry-specific regulations applicable to the Services hereunder including data privacy and security laws and regulations.

2.5. Locations: Subscription Services shall be performed at Data Centers if hosted by NetXpress, and remotely if managed items are at a non-NetXpress location, during the time periods indicated in the applicable SOW. Client shall provide remote access to Client’s computer systems for Managed Services at locations other than a Data Center.

2.6 Conflicts. In the event of a conflict between these Subscription Terms and those of the Agreement, these Subscription Terms shall control to the extent of the conflict.

2.7 Limitation: IN NO EVENT SHALL NETXPRESS, ITS AGENTS, EMPLOYEES, MANAGERS AND MEMBERS BE LIABLE FOR ANY LOST OR MISAPPROPRIATED DATA OR CONTENT, IDENTITY THEFT, GOVERNMENTAL FINES OR PENALTIES, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT, EVEN IF NETXPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLIENT ACKNOWLEDGES THAT WITHOUT THESE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION THE COST OF THE SERVICES AND DELIVERABLES WOULD BE GREATER. The total liability of NetXpress for all damages hereunder in any form of action, is limited to the amount paid by Client for the item causing the damage, for the duration of the damage.

3. Terms Applicable to Certain Subscription Services

3.1 Managed Subscription Services

3.1.1 Manufacturer Maintenance; Licensing: Manufacturer maintenance is required for Client's third party products managed by NetXpress. Without manufacturer maintenance provided by the Client, service level agreements shall not apply and NetXpress may not be able to resolve issues or timely perform Services. Work arounds, if any, are not included in Managed Services and if provided shall be at additional charge. Client is solely responsible for being in compliance with manufacturer software licensing requirements.

3.1.2 Compatibility: NetXpress is not responsible for resolving compatibility issues with unmanaged software or hardware, and in such cases service levels and warranties shall not apply and Client shall hold NetXpress harmless with respect to compatibility issues. Resolution of compatibility issues are not included in Managed Services and if provided shall be at additional charge.

3.1.3 Remotely Provided. Where possible Managed Services are remotely provided and require access to the systems to be managed. Managed Services may require installation of an agent or virtual server on Client systems and Client consents to such installation if required. Tickets may be submitted via a third party administrative interface, and Client consents to use of such interface if applicable.

3.1.4 Quality of Service (QOS): NetXpress makes no warranty as to the quality or availability of a “public” internet connections such as VPN and any such Services are sold “as-is.”

 

3.2 Hosting Subscription Services: Client grants to NetXpress the right to use all hardware and software provided by Client for hosting by NetXpress, for the sole purpose of providing Subscription Services to Client under an SOW including Subscription Services. Client warrants to NetXpress that this license and the Subscription Services selected by Client shall not violate any agreement or right of any third party, including software licensors, and Client shall indemnify and hold NetXpress harmless from and against such third parties.

3.3 ServiceNow Subscription Services

3.3.1. NetXpress utilizes ServiceNow both as both a stand-alone third party product and as a NetXpress support ticketing tool. Use of ServiceNow requires transfer of limited Client information by Client to ServiceNow (such as emails, employee names, contents of trouble tickets, etc.).

3.3.2 Restrictions: Client shall not (and shall not permit others to) do the following with respect to the ServiceNow ticketing Services (including the underlying software): (i) use the ticketing Service with external programs in a manner that intentionally circumvents these contractual usage restrictions; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as otherwise expressly provided in a SOW; (iii) knowingly access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iv) disassemble, reverse engineer or decompile it; (v) copy, create derivative works based on or otherwise modify it except as permitted herein and in Client’s SOW for the Services; (vi) remove or modify a copyright or other proprietary rights notice in it; (vii) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (viii) use it to knowingly create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt its security, integrity or operation; or (ix) access or disable any Service Now or third party data, software or network (other than Client's instance of the Subscription Service in accordance with this Agreement). Before Participant exercises any of the foregoing actions that Participant believes it is entitled to based on mandatory law, Participant shall provide ServiceNow with thirty (30) days prior written notice at legalnotices@servicenow.com, and provide reasonably requested information to allow ServiceNow to assess Client's claim and, at ServiceNow's sole discretion, provide alternatives that reduce adverse impacts on ServiceNow's intellectual property and other rights.

3.3.3. High Risk Activities. Client shall use the ServiceNow ticketing Services within the intended business purposes and not for any purpose that requires fail-safe performance including, but not limited to, stock trading, financial transaction processing, management of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical or environmental damage ("High Risk Activity"). NetXpress and ServiceNow, their licensors and suppliers expressly disclaim all warranties of fitness for any such use and Client shall release and hold ServiceNow and NetXpress and their licensors and suppliers harmless from liability arising out of the use of the ServiceNow ticketing services for High Risk Activity.

3.3.4. Client Responsibilities. Client will perform or provide the following in a timely manner for any ServiceNow ticketing Services: (a) an authorized Client project manager with authority to answer questions and make decisions on behalf of Client; (b) all the necessary expertise and information to cover the statutory and regulatory requirements applicable to Client and its data; (c) escalation tree, access to environments, export of knowledge base(s), on-site visit to Client location if requested, and phones and call volumes as applicable.

 

3.4 Exchange Connectivity Services

3.4.1 Certain NetXpress service offerings may involve resale of services from Nasdaq, Eurex, SGX, or other exchanges, or connectivity into such exchange services. Such exchanges and other third parties are referred to herein as “Third Party Suppliers”. These terms apply to all SOWs involving Exchange Connectivity Services.

3.4.2 Unless otherwise set forth in the SOW, Client may use the Services solely for its internal use, and in accordance with its subscriber agreement with the relevant Third Party Supplier. Notwithstanding any agreement between the Parties to the contrary, NetXpress is entitled to report any non-conforming use of the Services to the relevant Third party Supplier, and will not be liable for any costs, expenses, liabilities, damages, interruption or loss of services, or any other result of making such report. Client is solely responsible for ensuring that its use of the Services complies with all applicable laws, regulations, the rules of any applicable trading commission, and any other restrictions to which the Client is subject, and that its use of the Services does not interfere with or adversely affect any of the component parts of processes of NetXpress’ systems, or the systems or information of the relevant Third Party Supplier. Client will defend, indemnify, and hold harmless NetXpress from all losses, damages, claims, costs (including reasonable attorneys’ fees), and expenses associated with its use or misuse of the Services or breach of its agreements with the relevant Third Party Supplier. This indemnification obligation will not be limited by any limitation of liability in any agreement between the Parties.  If NetXpress or any Third Party Supplier determines that Client’s use of the Services interferes with or adversely affects any of the component parts of processes of NetXpress’ systems, or the systems or information of the relevant Third Party Supplier, NetXpress or the Third Party Supplier may immediately suspend or terminate Service.

3.4.3 Client acknowledges that NetXpress and the Third Party Suppliers reserve the right to add, delete, or modify all or any portion of the Services at any time. If any Third Party Supplier determines for any reason to alter or terminate any portion of its services, NetXpress may alter or terminate that portion of the Services that relates to such discontinuance, and neither NetXpress nor the Third Party Supplier shall have any liability other than for NetXpress to make a pro-rata refund to Client of any unused prepaid fees. NetXpress may discontinue the Services hereunder without notice whenever its agreements with the applicable Third Party Suppliers require such discontinuance.

3.4.4 Client will comply with NetXpress’ and the Third Party Suppliers’ reporting requirements with respect to Client’s use of the Services. These reporting requirements may change from time to time. In the event Client exceeds its usage allotment, including without limitation in a manner which causes NetXpress to incur additional charges from any Third Party Supplier, Client will pay any additional charges no later than fifteen (15) days after the invoice date of an invoice reflecting the same. In the event a Third Party Supplier increases its fees, NetXpress may pass on a proportional increase in fees to Client. Client shall comply with any Third Party Supplier’s requests to audit Client’s books, records, processes, policies, and facilities related to Client’s use of the Exchange Connectivity Services.

3.4.5 Client acknowledges that the Services do not serve to transfer to Client any proprietary right in information or data transmitted through the Services. Client’s rights in any such information or data are governed by the terms of the subscriber agreement or other contract between Client and the relevant Third Party Supplier.

3.4.6 Client acknowledges that it may be required to enter into and maintain direct agreements with the Third Party Suppliers. Where any Third Party Supplier requires Client to enter into an agreement directly with the Third Party Supplier related to the Services, Client shall, upon request, supply a copy of such agreement to NetXpress, and NetXpress is not obligated to provide Services until it receives the applicable agreement or confirmation from the relevant Third Party Supplier that Client is duly licensed. In addition to the fees payable by Client to NetXpress, Client shall be responsible for the payment of all applicable Third Party Supplier fees that are billed either to NetXpress or directly to Client by the Third Party Supplier, and any associated taxes, charges, or assessments imposed thereon, except those related to NetXpress’ income. In the event of any termination of the Client’s agreement with the Third Party Supplier, or the occurrence of any event that renders Client unqualified to receive the Services, Client shall notify NetXpress immediately, and NetXpress may terminate or suspend the relevant Services.

3.4.7 Client represents and warrants that at all times during the provision of Services it is qualified to receive the Services under (i) the rules, regulations, interpretations, decisions, opinions, orders and other requirements of the SEC or an FSA, as may be applicable based on the exchange from which the information is received; (ii) the rules and regulations, disciplinary decision and rule interpretations applicable to the relevant exchange, trading commission, or other relevant body; (iii) the decisions, policies, interpretations, operating procedures, minimum security requirements, specifications, requirements and other documentation that is regulatory or technical in nature (including, but not limited to, user guides) published by the relevant exchange, trading commission, or other relevant body; (iv) all other applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions and other requirements promulgated by the applicable jurisdiction (including in the area of intellectual property); and (v) the successors, as they may exist at the time, of any of the foregoing. To the extent applicable to Client’s activities, Client agrees it will comply with all CFTC requirements, including but not limited to submitting to the CFTC’s jurisdiction with respect to Client’s activities, and complying with any request from the CFTC, the U.S. Department of Justice, and, if appropriate, the U.S. National Futures Association, to audit Client’s books, records, and/or facilities relating to Client’s activities hereunder. Client will defend, indemnify, and hold harmless NetXpress from all losses, damages, claims, costs (including reasonable attorneys’ fees), and expenses associated with its breach of this section 3.4.7. This indemnification obligation will not be limited by any limitation of liability in any agreement between the Parties. Client acknowledges that its breach of this section may result in suspension or termination of its services without notice.  

3.4.8 CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES, ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE”, WITH NO WARRANTIES OTHER THAN THOSE WARRANTIES SET FORTH HEREIN. INFORMATION PROVIDED THROUGH THE SERVICES AND ANY AND ALL MATERIAL RELATED TO THE SAME, ARE PROVIDED SUBJECT SOLELY TO THE TERMS BETWEEN CLIENT AND THE RELEVANT THIRD PARTY SUPPLIER. THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION, ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR THE STATUTORY WARRANTY OF NONINFRINGEMENT). IN NO EVENT SHALL NETXPRESS, ITS AGENTS, OR ITS MANAGERS OR MEMBERS, OR ITS THIRD PARTY SUPPLIERS BE LIABLE TO CLIENT FOR ANY TRADING LOSSES, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR FOR INCREASED EXPENSES OF OPERATION OR FOR ANY UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF NETXPRESS, ITS AGENTS, OR ITS MANAGERS OR MEMBERS, OR ITS THIRD PARTY SUPPLIERS IN CONNECTION WITH THE SERVICES AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED ONE MONTH OF THE RECURRING FEES PAID BY CLIENT UNDER THE APPLICABLE SOW FOR THE SERVICE IN QUESTION.  TO THE EXTENT ANY THIRD PARTY SUPPLIER SELECTED BY CLIENT HAS MORE RESTRICTIVE LIMITATIONS OR DISCLAIMERS OF LIABILITY, THE TERMS OF THE RELEVANT THIRD PARTY SUPPLIER SHALL APPLY. THE THIRD PARTY SUPPLIERS ARE HEREBY MADE EXPRESS THIRD PARTY BENEFICIARIES OF THESE TERMS. THESE LIMITATIONS AND DISCLAIMERS MAY NOT BE ENFORCEABLE IN ALL JURISDICTIONS, AND IF NOT ENFORCEABLE SHALL BE INTERPRETED TO PROVIDE THE BROADEST POSSIBLE ENFORCEABLE DISCLAIMER.

3.4.9 Client acknowledges and agrees that the Services are not intended to supply financial, accounting, tax, commodity trading, or legal advice, or advice regarding the future value, or suitability of any particular security, commodity interest, transaction, investment, or investment strategy. Client acknowledges that the use of the Services, and any decisions made in reliance on the Services, are made at Client’s own risk.

 

Last Updated 6/8/2017