NetFoundry
End User License Agreement
This End User License Agreement (" Agreement") is between NetFoundry Inc. (" NetFoundry"), and the individual, organization, or entity using the NetFoundry software (the " Software") pursuant to this Agreement (" Customer").
This Agreement forms a binding legal agreement between NetFoundry and Customer regarding Customer's use of and access to the Software. NetFoundry is not willing to provide Customer with access to or use of the Software unless Customer agrees to be bound by this Agreement. By placing an order for any Software (an " Order"), or by downloading, installing, or using any part of the Software, you agree to be bound by this Agreement. All Orders accepted by NetFoundry are incorporated in and made part of this Agreement.
If you are placing an Order or downloading, installing, or using any part of the Software on behalf of another organization or entity, by placing an Order or downloading, installing, or using any part of the Software, you represent and warrant that you have authority to bind that organization or entity to this Agreement. If you do not have such authority, or you do not agree to the terms of this Agreement, do not place an Order ordownload, install or use the Software.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS PROVISIONS THAT LIMIT NETFOUNDRY'S LIABILITY AND WAIVE EACH PARTY'S ABILITY TO HAVE DISPUTES DECIDED BY A JURY. CUSTOMER'S BREACH OF ANY PROVISION OF THIS AGREEMENT WILL AUTOMATICALLY, WITHOUT THE REQUIREMENT OF NOTICE OR OTHER ACTION, REVOKE AND TERMINATE CUSTOMER'S RIGHT TO USE THE SOFTWARE.
Capitalized terms used in this Agreement have the definitions given in the context in which they are used. All other terms used herein have the plain English (U.S.) meaning.
1. Term. The term of this Agreement ("Term") begins on the date NetFoundry accepts the initial Order Customer places or any earlier date on which Customer downloads, installs, or uses any part of the Software (the "Effective Date") and continues until terminated as set forth herein. Unless otherwise specified, all Software is licensed on a subscription basis. The initial subscription term for the license to any Software is as specified in the applicable Order for that Software. Unless otherwise stated in an applicable Order for Software, the subscription term for any Software will renew for successive renewal subscription terms equal to the expiring subscription term set forth in the Order or 1 year (whichever is shorter), unless either party gives the other party notice of non-renewal at least 30 days before the end of the relevant subscription term.
2. MSA. This Agreement covers all access to and use of the Software. In addition to this Agreement, access to and use of certain services accessible in connection with the Software ("Services") is governed by the NetFoundry Master Services Agreement ("MSA"). If the Software is used to access or use any Services, Customer acknowledges that the MSA applies to those Services and Customer agrees to enter into and be bound by the terms of the MSA with respect to its access to or use of those Services. In the event of a conflict between the MSA and this Agreement, the terms of this Agreement will control as to the Software and the MSA will control with respect to the Services.
3. Apple Terms. If the Software is downloaded through the Apple Inc. ("Apple") App Store, the applicable Software usage rules set forth in the Apple App Store Terms of Service will apply to your access to and use of the Software in addition to this Agreement. NetFoundry only, and not with Apple or any of its affiliates, and that NetFoundry, not Apple, is solely responsible for the Software and any content therein. In the event the Software fails to conform to any applicable warranty, Customer may notify Apple, and Apple will provide Customer a refund of the applicable Fees for the Software. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be NetFoundry's sole responsibility. Customer further acknowledges that NetFoundry, not Apple, is responsible for addressing any claims Customer or any third party may have relating to the Software or the Customer's possession and/or use of the Software, including, but not limited to: (1) product liability claims; (2) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Software's use of the HealthKit and HomeKit frameworks.
4. Software License. Subject to the terms and conditions of this Agreement, and any other limitations stated in any applicable Order, NetFoundry hereby grants to Customer a limited, nontransferable, nonsublicensable, nonexclusive, revocable, license to install and use the Software solely during the Term on those devices (e.g., personal computers or mobile devices) owned or controlled by Customer, its clients and customers, and their respective employees and contractors ("End Users") specified in the applicable Order for the Software ("Devices"), in executable object code format only. All access to and use of the Software under the foregoing license by Customer and each End User is contingent upon (1) each End User agreeing to be bound by, and complying with, the terms of this Agreement, (2) each End User remaining an "End User" as defined herein, (3) this Agreement remaining active and in effect, (4) Customer paying all amounts due for the Software under this Agreement, and (5) each End User complying with all relevant laws, including export laws. Customer will be responsible for the acts and omissions of each End User and cause them to comply with the terms and conditions of this Agreement.
5. Termination. NetFoundry may terminate this Agreement and Customer's right to access and use the Software upon 5 days' prior written notice to Customer, for any reason or no reason, in its sole discretion, without any further obligation or liability to Customer. In addition, either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 days of notice of such breach provided by the non-breaching party. No refund of any portion of any fees or other amounts paid under this Agreement will be due upon termination or expiration of this Agreement. Any termination or expiration of this Agreement will terminate all Orders under this Agreement. Upon any termination or expiration of this Agreement, all rights and license granted to Customer hereunder will terminate immediately and Customer will immediately delete all copies of the Software in the possession or control of Customer or any End User and cease all use of the Software. Following any termination or expiration of this Agreement, Customer may not re-establish access to the Software for a period of 12 months following such termination, unless otherwise agreed in writing in advance by NetFoundry. Customer agrees that neither NetFoundry nor its providers shall be liable to Customer or any third party for any termination or expiration this Agreement, including loss of access to the Software by Customer or any End User. The relevant portions of the following Sections will survive any termination or expiration of this Agreement 1.2, 2, 3, 6, 7, 8, 9, and 10.
6. Fees and Payment; Taxes.
6.1. Fees. Customer shall pay NetFoundry all fees and other amounts specified in each Order ("Fees"). Except as may be expressly provided herein, all Fees will be non-refundable once paid to NetFoundry. NetFoundry may change any portion of the Fees upon any renewal of this Agreement, such changes to take effect at the beginning of the subsequent renewal of the § Term of this Agreement.
6.2. Payment Terms. All Fees shall be paid as stated in each applicable Order or, if not stated in an applicable Order, within 30 days after the date of NetFoundry's invoice for such Fees. All Fees are payable in United States dollars. Any amounts not paid when due shall accrue annual interest at the lesser of 18% or the maximum rate allowed by law. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants NetFoundry the right to charge the credit card or debit the bank account provided to NetFoundry for all Fees incurred under this Agreement.
6.3. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on NetFoundry's income. If NetFoundry has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer within 30 days of NetFoundry's invoice therefor.
7. Restrictions. Customer agrees that it will not (and will not authorize any End User or third party to) (1) reproduce, modify, distribute, sell, convey, publish, rent, lease, pledge, sublicense, assign, disclose, transfer or otherwise encumber or make available to any third party any portion of the Software (or any related documentation) in any form, unless expressly permitted under this Agreement; (2) reverse engineer, decompile, disassemble, or otherwise attempt to decrypt, extract or derive the method of operation of, source code for, or any algorithms or data structures embodied within, the Software or any parts thereof; (3) modify, adapt, alter, translate, or create derivative works from the Software; (4) use the Software in order to build a similar or competitive product or service; (5) use the Software for the benefit of any third party or make the Software available to any third party, whether through a service bureau, outsourcing, application service provider, hosting, lease, rental, loan or other arrangement; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Software; (7) utilize the Software for any purpose that is illegal in any way or that advocates illegal activity; (8) publish or disclose to any third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Software or the use thereof, except as may be authorized by NetFoundry in writing; (9) use the Software for purposes not expressly authorized or on devices (e.g., personal computers or mobile devices) that are not subject to an Order authorized by NetFoundry; or (10) exceed the maximum bitrate, number of devices, or number of End Users authorized by the Order. Any future release, update, or other addition to functionality of the Software made available by NetFoundry to Customer, shall be subject to these terms and conditions, unless NetFoundry expressly states otherwise. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Customer shall preserve and shall not remove any copyright or other proprietary notices in the Software, its documentation and all copies thereof. Customer shall use the Software solely in accordance with any documentation Software provided by NetFoundry.
8. Ownership. NetFoundry and its providers retain all rights, title and interest, including all IPR, in and to the Software and any additions, improvements, updates and modifications thereto. Customer receives no ownership interest in or to the Software. No license or other express or implied rights of any kind are granted or conveyed except for the limited internal license expressly provided above. Any rights not expressly granted by NetFoundry in this Agreement are reserved. The NetFoundry name, logo and all product and service names associated with the Software are trademarks of NetFoundry and its licensors and providers and Customer is granted no right or license to use them. For purposes of this Agreement, " IPR" means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
9. Feedback. If Customer or its End Users provide NetFoundry with any suggestion, enhancement or modification request, recommendation, correction or other feedback, including any report of defects in the Software and/or Services (collectively " Feedback"), Customer hereby grants NetFoundry the right to use and exploit such Feedback including, without limitation, by incorporating such Feedback into NetFoundry's software products and/or services, including, without limitation, the Services, without any obligation or compensation to Customer or its End Users.
10. Maintenance and Support. Except as may be set forth in the MSA or in another separate agreement with NetFoundry, NetFoundry is solely obligated to provide Customer the support, maintenance or training relating to the Software specifically set forth in each applicable Order for the Software (if any). Notwithstanding the foregoing, should NetFoundry elect to provide Customer with any additional support, maintenance or training for the Software, such support, maintenance or training will be pursuant to NetFoundry's then-current terms for support, maintenance or training, as applicable. Any updates, upgrades, new versions, or new releases of or to the Software provided by NetFoundry will be treated as part of the "Software" for purposes of this Agreement. Customer acknowledges that Apple has no obligation whatsoever to furnish any support, maintenance or training with respect to the Software.
11. Third Party Code The Software may contain or include software code owned or provided by third-party licensors of NetFoundry (" Third-Party Code"). For any Third-Party Code clearly indicated to be subject to the terms of a third party license (a " Third-Party License"), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement and Customer shall comply with such terms. All other Third-Party Code provided to Customer by NetFoundry may be used only under the terms of this Agreement. Nothing in this Agreement limits Customer's rights under, or grants rights to Customer that supersede, the terms of any such applicable Third-Party License.
12. Third Party Services. The Software may provide Customer the ability to access data, services, and/or software developed, provided, or maintained by Customer or third party service providers (collectively, "Third Party Services"). NetFoundry is not responsible for any Third Party Services, including the connection thereto or the data exchanged with or collected by such Third Party Services. Customer acknowledges that the access or use of any such Third Party Services is solely at its own risk and hereby waives any and all claims against NetFoundry with respect to such Third Party Services.
13. Representations, Warranties and Disclaimers.
13.1. Customer's Warranties. Customer represents, warrants, and covenants that: (a) Customer is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation;; (b) Customer has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement, including the legal right and authority to grant the rights and licenses described in this Agreement and in any applicable additional agreement Customer enters into in connection with this Agreement; (c) the execution, delivery, and performance of this Agreement constitutes Customer's legal, valid, and binding agreement; and (d) Customer will access and use the Software only as expressly set forth in this Agreement at all times in strict compliance with the terms of this Agreement.
13.2. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR COVENANTS OF ANY KIND. NETFOUNDRY MAKES NO OTHER REPRESENTATIONS AND GIVES NO OTHER WARRANTIES OR COVENANTS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SOFTWARE PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR COVENANTS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, CUSTOMER ACKNOWLEDGES THAT NETFOUNDRY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SOFTWARE WILL MEET ALL OF CUSTOMER'S REQUIREMENTS, BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETFOUNDRY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY NETFOUNDRY AS AN AMENDMENT TO THIS AGREEMENT.
14. Indemnification.
14.1. By Customer. Customer shall defend, indemnify and hold harmless NetFoundry and its officers, directors, employees, affiliates, and agents from any claims, costs, loss, liabilities, or expenses (including reasonable attorney's fees) resulting from, relating to, or arising out of Customer's or any End User's (1) acts or omissions in using the Software; (2) breach of this Agreement; and/or (3) violation of any applicable law, rule, regulation, or third party right.
14.2. By NetFoundry NetFoundry will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Software when used and accessed in accordance with this Agreement directly infringes such third party's U.S. copyright or patent rights. NetFoundry will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Software becomes, or in NetFoundry's opinion is likely to become, the subject of an infringement claim, NetFoundry may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement; (b) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent; or (c) terminate all rights and licenses granted to Customer under this Agreement. Notwithstanding the foregoing, NetFoundry will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use of the Software that is not in accordance with NetFoundry's documentation or this Agreement; (ii) any use of the Software in combination with other products, equipment, software, or data not supplied by NetFoundry if such infringement would not have arisen but for such combination; (iii) any use of any release of the Software other than the most current release made available to Customer; or (iv) any modification or alteration of the Software by any person other than NetFoundry (each an " Exclusion"). Customer acknowledges that in the event any third party claims that the Software infringes that third party's intellectual property rights, NetFoundry, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. This Section states NetFoundry's entire liability and Customer's sole and exclusive remedy for infringement claims and action. The foregoing obligations are conditioned on Customer notifying NetFoundry promptly in writing of such action, giving NetFoundry sole control of the defense thereof and any related settlement negotiations, and cooperating and, at NetFoundry's reasonable request and expense, assisting in such defense. Customer will, at its own expense, defend and indemnify NetFoundry and its affiliates against any damages, liabilities, losses, costs and expenses (including reasonable attorneys' fees)resulting from and claim arising from or relating to (1) an IP Exclusion or (2) Customer's and/or its Users' relationship or use of the Software, except to the extent the claim is subject to indemnification above by NetFoundry.
15. Limitation of Liability. EXCEPT FOR (1) A PARTY'S BREACH OF THE TERMS OF SECTION 16 (CONFIDENTIAL INFORMATION), (2) CUSTOMER'S OBLIGATIONS ARISING UNDER SECTION 14 (INDEMNIFICATION), AND (3) CUSTOMER'S INFRINGEMENT OR MISAPPROPRIATION OF NETFOUNDRY'S INTELLECTUAL PROPERTY RIGHTS, TO THE FULLEST EXTENT PERMITTED BY LAW (A) NEITHER PARTY'S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE WILL EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
16. Confidential Information.
16.1. Confidential Information. ** " Confidential Information**" means any and all proprietary or confidential information relating to the other party's business disclosed hereunder, either directly or indirectly, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know it is confidential.
16.2. Exclusions. This Agreement imposes no obligations with respect to information which: (a) was lawfully in Recipient's possession before receipt from the Disclosing Party; (b) is or becomes a matter of general public knowledge through no fault of Recipient; (c) was rightfully disclosed to Recipient by a third party without restriction on disclosure; or (d) is developed by Recipient without use of or reference to the Confidential Information and such independent development can be shown by documentary evidence.
16.3. Non-Disclosure. Each party ("Recipient") which receives Confidential Information of the other party ("Disclosing Party") under this Agreement shall hold such Confidential Information in strict confidence and take all necessary precautions to protect such Confidential Information (including, all precautions it employs with respect to its own Confidential Information, but in no event less than reasonable care). Recipient shall not use the Confidential Information for any purpose other than fulfilling its obligations under this Agreement nor shall Recipient divulge, publish or otherwise reveal any Confidential Information other than (a) to its employees, agents, affiliates, or representatives (collectively, "Representatives"), or (b) with the specific prior written authorization of the Disclosing Party; provided, that any Representative given access to any Confidential Information must (i) have a legitimate "need to know" directly related to the purpose of this Agreement, and (ii) be subject to and bound by nondisclosure and confidentiality terms no less protective than those in this Agreement. Recipient shall be responsible for each Representative's compliance with the terms of this Agreement. Recipient shall not copy, use, decompile or reverse engineer any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information. If Recipient is required by law or in any legal proceeding, to disclose any Confidential Information, it will give the Disclosing Party notice prior to any such disclosure so that it may seek an appropriate protective order. If, in the absence of a protective order, Recipient is compelled in a proceeding to disclose Confidential Information, it shall furnish only that portion of the Confidential Information which is legally required and exercise its best efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information.
16.4. Confidentiality Period. Recipient's obligations with respect to Confidential Information under this Agreement shall expire 5 years from the date of receipt of the Confidential Information (except that with respect to any trade secrets, including product designs and technology, the obligations shall be perpetual). These obligations shall survive any termination or expiration of this Agreement.
16.5. Return Or Destruction of Confidential Information. Upon termination of this Agreement and all Orders or upon written request by the Disclosing Party, Recipient shall: (a) immediately cease using the Confidential Information; (b) return or destroy the Confidential Information, including any Software, and all copies, notes or extracts thereof to the Disclosing Party within seven (7) business days of receipt of such request; and (c) upon request of the Disclosing Party, confirm in writing that it has complied with these obligations.
17. General Provisions.
17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of [New York] and the parties hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the U.S. state in which NetFoundry's principal business office is located for any dispute arising out of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to costs and attorneys' fees.
17.2. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
17.3. Notices. All notices or other communications required under this Agreement shall be effective only if delivered by personal delivery, certified overnight delivery, or registered mail (return receipt requested) in writing and in compliance with this Section. Such notice shall be deemed to be given: (a) as of the date delivered if delivered personally; (b) 1 day after delivery if sent by overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested. Notices will be sent to NetFoundry at the address set forth below and to Customer at the address set forth in the Order. Either party may specify a new address for notice by giving the other party notice pursuant to this Section.
17.4. Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
**17.5. Export.**The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from NetFoundry, or any products incorporating such data, in violation of the United States export laws or regulations. Without limiting the foregoing, Customer hereby certifies that it and its business are (a) not located in or a resident of Cuba, Iran, North Korea, Syria or the Crimea region of Ukraine; (b) not the government of, or an entity that is owned or controlled by the government of, Cuba, Iran, North Korea, Syria or Venezuela; (c) not a national of Cuba; (d) not a Specially Designated National and Blocked Person ("SDN") and (e) not owned 50% or more by one or more SDNs. By entering into this Agreement, Customer agrees to not use the Software or any Services for any end use prohibited pursuant to the U.S. Export Administration Regulations.
17.6. No Assignment. This Agreement, and Customer's rights and obligations herein, may not be transferred or assigned by Customer, whether by operation of law or otherwise, without NetFoundry's prior written consent, and any attempted assignment in violation of the foregoing will be null and void.
17.7. U.S. Government End Users. The Software and related documentation, are "commercial items" as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.
17.8. Force Majeure. NetFoundry shall not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strike, shortage, riot, insurrection, fire, flood, storm, explosions, act of God, war, governmental action, labor condition, earthquake, material shortage or any other cause that is beyond the reasonable control of NetFoundry.
17.9. Counterparts. This Agreement may be agreed to electronically or in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one instrument. For purposes of this Agreement, a document signed and transmitted electronically is to be treated as an original and shall have the same binding effect as an original signature on an original document.
17.10. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the Customer and NetFoundry and supersedes in its entirety any and all oral or written agreements previously existing between Customer and NetFoundry with respect to the subject matter hereof. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.
17.11. Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party.
17.12. Third Party Beneficiary. Customer acknowledges and agrees that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement and that, upon Customer's acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third party beneficiary thereof. No other party shall be deemed to have received any third party beneficiary rights under this Agreement and, except as indicated above, no term of this Agreement will be construed to confer any such rights.
17.13. Contact Information. Any questions, complaints or claims with respect to the Software may be addressed to NetFoundry at the following address: Attn: NetFoundry Support, 101 S Tryon Street, Suite 2700 Charlotte, North Carolina, USA 28280, provided through email at [email protected], or by calling 1.855.284.2007.