March 11, 2023

These Terms of Service (together with any Order Form(s) that reference these Terms of Service, the “Agreement”), is entered into by and between NetBox Labs, Inc. (“NBL”) and the Customer identified on the Order Form (“Customer” or “you”). Certain capitalized terms are defined in Section 15 (Definitions) and others are defined contextually in this Agreement. By executing an Order Form, you represent that you are authorized to accept this Agreement on behalf of your company, you are agreeing to be bound by the terms and conditions of this Agreement, and all references to “Customer” or “you” reference your company. The “Effective Date” of this Agreement is date first set forth on the Order Form.

  1. Services. This Agreement governs use of NBL’s proprietary services identified in an order form that references this Agreement (an “Order Form”) or selected electronically by Customer (in either case, the “Services”). NetBox is a community project and is available as open source software at https://github.com/netbox-community/netbox. Customer’s use of the open-source version of NetBox is subject to an open-source license. Customer may use the open-source version of NetBox separate from the Services. This Agreement, and not any open-source license, governs use of the Services.
  2. Using the Services
    1. Permited Use. Subject to this Agreement, during the Term, NBL agrees to make the Services available for use by Customer and Customer may access and use the Services solely for its internal business purposes.
    2. Usage Limits. In using the Services, Customer must comply with the technical documentation or other instructions provided by NBL from time to time (“Documentation”), as well as usage limits (if any) specified by NBL.
    3. Restrictions. As between NBL and Customer, NBL or its suppliers own all right, title and interest in and to the Services, and any Documentation or other intellectual property rights, and except as expressly set forth in Section 2.1 of this Agreement, no other right or license to the Services is granted to Customer under this Agreement, by implication, estoppel or otherwise. As conditions on Customer’s rights in Section 2.1 (Permitted Use), Customer shall not (and shall not permit any other party to) do any of the following: (a) provide access to, make available, distribute, sell, rent, lease, loan, sublicense or otherwise transfer or commercially exploit the Services, in whole or in part, to a third party, (b) use the Services on behalf of, or to provide any product or service to, third parties, including time-sharing services and/or service bureau services, (c) use the Services to develop a similar or competing product or service including using similar ideas, features, functions or graphics, (d) reverse engineer, decompile, decrypt, disassemble or seek to access the source code, underlying ideas, algorithms, file formats or non-public APIs to the Services, except to the extent expressly permitted by law (and then only with prior notice to NBL), (e) modify or create derivative works of the Services, or copy any element of the Services, (f) remove, alter or obscure any proprietary notices in the Services, (g) publish benchmarks or performance information about the Services; (h) discuss the Services with anyone other than individuals within NBL’s or the Customer’s organization or designated in writing by NBL; (i) transmit or make available in connection with the Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity, (j) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures relating to the Services without the express written consent of NBL in each instance, (k) knowingly take any action with respect to the Services that repeatedly imposes, or may repeatedly impose, in NBL’s reasonable opinion, an unreasonable or disproportionately large load on NBL’s infrastructure, (l) circumvent the limitations of use of the Services, (m) submit, post or make available false, incomplete or misleading information regarding the Services, (n) violate any posted policy regarding the Services, including any applicable NBL policy and/or trademark policy, and (o) directly or indirectly publicize or exploit any bugs or vulnerabilities in the Services, and Customer agrees to promptly report any such bugs or vulnerabilities to NBL. NBL reserves the right, but not the obligation, to monitor or review your use of the Services at any time and may investigate any suspected violations of this Agreement.
  3. Feedback. To the extent Customer provides NBL with any comments, suggestions or other feedback regarding the Services (“Feedback”), then NBL may use such Feedback without restriction or obligation to Customer. Customer further agrees to reasonably cooperate with NBL by proactively providing Feedback and otherwise participating in the Feedback process in any way that NBL may reasonably request.
  4. Fees, Payment and Taxes. In consideration of Customer’s access and use of the Services, Customer will pay the fees for the Services based on the service tier that Customer selects electronically or in an Order Form. NBL will invoice you for fees due, and you shall pay the fees set forth in each invoice issued by NBL hereunder within thirty (30) days of the date of such invoice. All payments will be made in U.S. dollars in immediately available funds. Fees due are net of any bank, transfer or other third-party fees. All fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the access and use of the Services, including without limitation, sales, services, use, value added and withholding taxes, all of which Customer will be responsible for and will pay in full, other than taxes based on NBL’s net income or property. In the event an applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for services sold under this Agreement at any time, Customer will be solely responsible for payment of such additional taxes and all costs associated with such assessment. Additionally, should Customer be required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to NBL hereunder, then the sum due to NBL will be increased by the amount necessary to yield to NBL an amount equal to the sum NBL would have received had no withholdings or deductions been made. Where this Agreement establishes a due date for a payment and/or a recurring method for payment, payment will be due and payable on such due date and/or according to the method specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within thirty (30) days of the date of such invoice. In order to satisfy any outstanding fee under this Agreement, you hereby authorize NBL to initiate electronic debit or credit entries through the automated clearing house system on or before each such payment due date from an account as designated by you to an NBL account(s). Any invoices not paid when due will accrue interest at a rate equal to the lesser of one and a half percent (1.5%) per month or the maximum rate permitted by law. If Customer fails to pay an invoice when due and such failure continues for thirty (30) days following the due date for such invoice, NBL may suspend Customer’s rights to use the Services or terminate this Agreement. Unless otherwise stated in this Agreement, Customer shall pay all due and unpaid fees, if any, within ten (10) days following termination or expiration of this Agreement.
  5. Customer Data.
    1. Use of Customer Data. As between the parties, Customer will retain any of its rights in the Customer Data provided to NBL. Subject to the terms of this Agreement, Customer hereby grants to NBL a non-exclusive, worldwide, royalty-free right to access, use, analyze and transmit Customer Data, and to modify and create derivative works of the Customer Data (e.g., for dashboards, charts and graphs), as necessary to provide and improve the Services. Customer also permits NBL to use and analyze Customer Data which has been anonymized and aggregated with other customers’ anonymized data. If the Services includes cloud storage or extended retention, Customer additionally grants to NBL the right to copy and store Customer Data to the extent necessary to provide the Services, including for NBL’s internal purposes such as product support and improvement.
    2. Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to NBL that (a) Customer has made all disclosures and has sufficient rights to use the Customer Data with the Services and grant the rights in Section 5.1 (Use of Customer Data) and (b) the provision and use of the Customer Data does not infringe or violate applicable laws or the intellectual property, publicity, privacy or other rights of any third party.
    3. Prohibited Data. Customer acknowledges that (a) the Services are not intended to meet any legal obligations for Prohibited Data uses, (b) with respect to the Services, NBL is not a Business Associate or a subcontractor (as defined under HIPAA), or payment card processor, and (c) Services are neither HIPAA nor PCI DSS compliant. Notwithstanding anything else in this Agreement, NBL has no liability for Prohibited Data.
    4. Systems Operations Data. NBL may collect and process utilization statistics and other technical data (e.g., page load data) regarding use, configuration, and deployment of the Services to operate, manage, improve, instrument, benchmark, and support the Services; provided, NBL will not disclose any information derived from such data if doing so would make it possible for a third party to identify Customer or any individual natural person.
  6. User Data and Login Credentials. Your employees and contractors may use the Services on your behalf (each, a “User”). Each User may be required to provide a username, email address, password or other personal information to create and manage an account (“Login Credentials”) and must keep its Login Credentials confidential and not share them with anyone. NBL uses and collects Login Credentials in accordance with the Privacy Notice. Customer is responsible for its Users’ compliance with this Agreement and the actions taken through their accounts. Customer will promptly notify NBL if it becomes aware of any compromise of its Login Credentials.
  7. Ownership. Customer agrees that NBL or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including any Feedback incorporated therein. As set forth in Section 5.4 (Systems Operations Data), in addition to its other rights, NBL may collect technical logs, data and learnings about Customer’s use of the Services, which NBL may use without restriction. Except as expressly set forth in this Agreement, no rights in the Services are granted to Customer.
  8. Term and Termination. This Agreement starts on the Effective Date and continues for one (1) year (“Initial Term”) and will automatically renew for successive one-year periods (each a “Renewal Term”) unless cancelled by either party no less than thirty (30) days prior to the end of the then current term or otherwise terminated in accordance herewith. The Initial Term and all Renewal Terms shall be collectively referred to herein as the “Term“. Customer may only change its Services tier selection at the inception of a Renewal Term. If unchanged, Customer’s tier in effect at the conclusion of the Initial Term or Renewal Term, as applicable (the “Immediately Preceding Term”) shall remain in effect. Fees shall increase by five percent (5%) over the fee in effect during the last month of the Immediately Preceding Term. If either party fails to perform or observe any material term or condition of this Agreement, including Customer’s failure to pay any fees, and such failure continues unremedied for 30 (thirty) days after the non-breaching party’s issuance of written notice, the non-breaching party may terminate this Agreement. Upon any termination of this Agreement (except for Customer’s termination due to NBL’s material uncured breach of this Agreement), all prepaid fees will be nonrefundable and Customer will be responsible for all fees for the remainder of the then-current term (i.e., the Initial Term or Renewal Term, as applicable). In the event of Customer’s termination due to NBL’s material uncured breach of this Agreement, NBL shall refund any prepaid fees to Customer for the period from the termination date to the end of the then-current term (i.e., the Initial Term or Renewal Term, as applicable). Upon termination, Customer must cease using the Services by deleting or terminating any integration with other systems, including NBL software and/or cloud-based services. Further, Customer must delete (and at NBL’s request, certify deletion of) any Documentation or other Confidential Information provided by NBL. The Services may include controls that Customer may use to retrieve or delete Customer Data. After termination, Customer will have no further access to any Customer Data if any is stored by NBL, and NBL may delete all such Customer Data in accordance with its standard policies and procedures. NBL will not have any liability resulting from termination or suspension of this Agreement in accordance with its terms. Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and duties of the parties will terminate, other than the obligations that, by their nature, should survive the termination or expiration of this Agreement, including Sections 2.3 (Restrictions), 3 (Feedback), 4 (Confidentiality), 5 (Customer Data), 7 (Ownership), 8 (Term and Termination), 9 (Disclaimers), 10 (Limitations of Liability), 13 (Export Restrictions), 14 (General) and 15 (Definitions).
  9. Disclaimers. THE SERVICES ARE PROVIDED “AS IS” and “AS AVAILABLE”, AND USE IS AT CUSTOMER’S SOLE DISCRETION AND RISK. NBL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES OR ITS USE.
  10. Limitations of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, INACCURACY OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES DUE TO BE PAID BY CUSTOMER TO NBL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE FIRST CLAIM AROSE. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO A PARTY’S LIABILITY RESULTING FROM A BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2.2 or 2.3. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
  11. Indemnification. NBL will indemnify, defend and hold harmless Customer (including its directors, officers, employees and agents) from and against third-party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) (“Claims”) that the Services, in the form delivered to Customer by NBL, and when used in accordance with the terms of this Agreement, constitutes a direct infringement or misappropriation of a valid U.S. patent, copyright, trademark or trade secret of such third party. in each case, in effect as of the date of this Agreement. Customer will indemnify, defend and hold harmless NBL (including its directors, officers, employees and agents) from and against any and all third-party Claims relating to Customer’s breach of Section 2.3 of this Agreement. The indemnified party shall give the indemnifying party prompt written notice of any Claim and will cooperate in relation to the Claim. The indemnifying party will have the exclusive right to control and settle any Claim, except that the indemnifying party may not settle a Claim without the indemnified party’s prior written consent if the settlement requires the indemnified party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials). The indemnified party may participate in the defense of any Claim at its expense. NBL’s indemnification set forth in this Section 11 is limited to the Services in the form delivered to Customer and does not cover Claims arising from: (i) modifications thereto not made by NBL or at the express written direction of NBL; (ii) use of the Services in combination with other software or items not provided by NBL; (iii) unauthorized use of the Services; (iv) continued use of a previous version of the Services after NBL has made a new version of the Services available to Customer without such claim; or (v) Customer’s breach of this Agreement.
  12. Notices. NBL may provide Customer with notices and communications at Customer’s email or physical address on file, through the Services or other reasonable means. Any notices or communications to NBL must be sent via email to notices@netboxlabs.com.
  13. Export Restrictions. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Services. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
  14. General. This Agreement is the parties’ entire agreement and supersedes any prior or contemporaneous agreements relating to its subject matter. Purchase orders, work orders or other such documents submitted by Customer will be for Customer’s internal administrative purposes only and the terms and conditions contained in any such purchase order, work order or other such document will have no force or effect and will not amend or modify this Agreement or an Order Form (if any) even if NBL makes the Services available to Customer and/or issues invoices to Customer following receipt of any such document. The parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have included in this Agreement all terms material to the parties’ rights and obligations with respect to the subject matter hereof and intend this document to be the final expression of their contractual intent. Except as otherwise provided herein, all amendments or modifications must be in writing and signed by both parties. The words “including” and similar terms are to be construed without limitation. Failure to enforce any provision is not a waiver and all waivers must be in writing. If any provision is found to be unenforceable it (and related provisions) will be interpreted to best accomplish its intended purpose. Customer may not assign, transfer or delegate any right or obligations under this Agreement and any non-permitted assignment is void. NBL may assign this Agreement and its rights and obligations to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities to which this Agreement relates. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of, the State of New York without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a state or federal court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of such courts. EACH PARTY HEREBY WAIVES ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE AND AGREES TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK. NBL will not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events that are beyond its reasonable control. The Services includes commercial computer software. If the user or licensee of such technology is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of such technology, or any related documentation of any kind, including technical data and manuals, is restricted by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited. This Agreement does not create a legal partnership, agency, or employment relationship between Customer and NBL.
  15. Definitions.“Customer Data” means any data, content or materials that Customer submits to the Services.

    “Law” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.

    “Privacy Notice” means the privacy notice located at https://netboxlabs.com/privacy (and any successor or related locations designated by NBL), as it may be updated by NBL from time to time.

    “Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA“), (c) credit, debit or other payment card data or financial account information, including bank account numbers, (d) credentials granting access to an online account (e.g., username plus password), (e) social security numbers, driver’s license numbers or other government ID numbers, (f) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations) or (g) any data similar to the above protected under foreign or domestic Laws.