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MAIN TERMS OF SERVICE
ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) WILL BE LEGALLY BINDING ON
CUSTOMER UPON EXECUTION OF THE SUBSCRIPTION SERVICES AGREEMENT. CUSTOMER SHOULD CAREFULLY READ
THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE SUBSCRIPTION SERVICES AGREEMENT.
Section Headings and Numbers. Certain Sections may have been renamed and/or renumbered in this document for convenience only
and such renaming and/or renumbering shall not affect the validity, construction or interpretation of the Agreement. References in the
Subscription Services Agreement to any Section names or numbers under this document shall be deemed to be a reference to the identified
or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent
possible under applicable law.
Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given to them in the Subscription Services
Agreement.
1. Definitions.
"Advanced Customer Support” is a managed service available for purchase on a subscription basis. Advanced Customer Support is
provided for a fee by Oracle to assist customers in their use of the Services or specific components of the Cloud Service.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under
common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause
the direction of the management and policies of such party, for so long as such control exists.
“Cloud Service” means, collectively, the NetSuite online business application suite (and any optionally procured modules), including
without limitation SuiteCloud Technologies, (the “NetSuite Service”) and the SuiteProjects Pro online Professional Services Automation
application suite (and any optionally procured modules) (the “SuiteProjects Pro Service”) as described in the applicable User Guides that
is procured by Customer from Oracle in the Estimate/Order Form and any subsequent Estimate/Order Form from time to time, including
associated offline components, but excluding Third Party Applications, Support Services and Professional Services. For avoidance of
doubt, any references to “Service” or “Subscription Service” in the Agreement shall mean Cloud Service as defined here.
“Customer Data” means all software, data (including Personal Information as defined in the Data Processing Agreement), text, images,
audio, video, photographs, non-Oracle or Third-Party Applications, and other content and material, in any format, provided by Customer
or any of Customer’s Users that is stored in, or run on or through, the Cloud Service. Cloud Services provided under the Agreement,
Oracle software, other Oracle products and services, and Oracle intellectual property, and all derivative works thereof, do not fall within
the meaning of the term “Customer Data.” Customer Data includes any third party content that is brought by Customer into the Cloud
Service by Customer’s use of the Cloud Service or any Oracle-provided tools.
"Deliverables” means anything developed by Oracle, including training materials, and delivered to Customer as part of the Professional
Services.
“Estimate/Order Form” means an Oracle estimate, renewal notification or order form in the name of and executed by Customer and
accepted by Oracle which specifies the Cloud Service, and any Support Services and/or Professional Services to be provided by Oracle
subject to the terms of the Agreement.
“Help Documentation” shall have the meaning set forth in the Oracle NetSuite Hosting and Support Delivery Policies.
“Oracle NetSuite Written Materials” means, collectively, the Data Processing Agreement, the applicable version of the Oracle NetSuite
Hosting and Support Delivery Policies, the Oracle Services Privacy Policy, the User Guides, and the NetSuite Cloud Services:
Supplemental Terms and Conditions (all of which are found at https://www.oracle.com/contracts/netsuite/,
https://www.oracle.com/corporate/contracts/cloud-services/netsuite/ or such other URL as specified by Oracle), the URL Terms, and any
other Oracle documents that are referenced in, or incorporated into, Customer’s Estimate/Order Form for Services.
“Professional Services” means Training Services (as defined below) and the general consulting, implementation and/or training services
to be provided to Customer pursuant to the terms hereof, and an Estimate/Order Form or SOW, as applicable.
"Services” means, collectively, the Cloud Services, Support Services and Professional Services.
“SOW” means a separate document, entitled Statement of Work, between Oracle and Customer, signed by both parties, that details the
Professional Services to be delivered by Oracle.
“SuiteApp” means a collection of customizations, data, configurations, or modifications of standard objects created using the SuiteCloud
Technologies for use in the Cloud Service. For the avoidance of doubt, a bundle is one type of SuiteApp.
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“SuiteApp.com” means the Oracle online directory of applications that interoperate with the Cloud Service, located at suiteapp.com or at
any successor websites.
“SuiteApp Marketplace” means the directory of applications that interoperate with the Cloud Service, located in the SuiteApp site within
the Cloud Service that presents available SuiteApps.
“SuiteCloud Technologies” means the technologies made available to Customer by Oracle that can be used to customize, automate, import,
export, or integrate data or functionality into or with the Cloud Service including, but not limited to, any (i) application programming
interfaces, (ii) extensions, (iii) libraries, (iv) tools, (v) interfaces which enable plug-ins, (vi) sample code, and (vii) documentation.
SuiteCloud Technologies include, but are not limited to, SuiteBuilder, SuiteFlow, SuiteScript, SuiteScript Debugger, SuiteTalk, SuiteCloud
Development Framework, and SuiteGL. To the extent that Oracle includes open source software in or with SuiteCloud Technologies,
the open source licenses governing such open source software will apply to Customer’s access and use of such open source software.
“Support Services” means the (i) supplemental, technical support services provided pursuant to the Oracle NetSuite Hosting and Support
Policies available at https://www.oracle.com/corporate/contracts/cloud-services/netsuite/ or such other URL as specified by Oracle in the
applicable Estimate/Order Form and/or (ii) Advanced Customer Support. Support Services are provided pursuant to the terms of the
Agreement and may be subject to additional fees as specified in the applicable Estimate/Order Form.
“Third Party Applications” means applications, integrations, connectors, services (including implementation, and/or customization),
software, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from
third party sources outside of Oracle that customer may access through, within, or in conjunction with Customer’s use of the Cloud
Services. Examples include data feeds from social network services, RSS feeds from blog posts, Oracle data marketplace and libraries,
dictionaries and marketing data. Third Party Applications includes third-party sourced materials accessed or obtained by Customers use
of the Services or any Oracle-provided tools. For clarity, SuiteApps developed by Customer, or any other customer, are considered Third
Party Applications under this Terms of Service, including without limitation SuiteApps available on SuiteApp.com or the SuiteApp
Marketplace.
"Training Services” means the training services provided in accordance with the “Training Service Descriptions”, found at
https://www.oracle.com/corporate/contracts/cloud-services/netsuite/, or a SOW.
“Users” means individuals who are authorized by Customer to use the Cloud Service pursuant to the Agreement (as defined below), or as
otherwise defined, restricted or limited in an Estimate/Order Form or amendment to the Agreement. Users include but are not limited
to Customer’s employees, consultants, contractors and agents.
“User Guides” mean the online English language user guides for the Cloud Service, accessible via login at https://www.netsuite.com (under
“Help”) or included in the Oracle documentation identified under the “NetSuite Applications” heading available at
https://docs.oracle.com/en/, as updated from time to time.
“URL Terms” means terms with which Customer must comply, which are located at a URL, referenced in the Agreement and are hereby
incorporated by reference.
2. Terms of Service. Customer acknowledges and agrees to this Terms of Service document, which together with the terms of the
Subscription Services Agreement entered into between Customer and Oracle, shall govern Customer’s access and use of the Services
(collectively, the “Agreement”). For avoidance of doubt, the Terms of Service are also considered URL Terms.
In addition to the rights provided under the Subscription Services Agreement entered into between Customer and Oracle, Customer shall
also have the non-exclusive, worldwide, limited right to use the SuiteCloud Technologies, to create, store, and use SuiteApps in
connection with Customer’s use of the Cloud Service and in accordance with the Agreement and to share such Customer developed
SuiteApps with other customers of the Cloud Service.
NetSuite OneWorld Cloud Services. If Customer orders NetSuite OneWorld Cloud Service or has obtained the right to use the NetSuite
Subsidiary Management (each a “Subsidiary Service” and collectively the “Subsidiary Services”), Customer and Customer’s majority
owned subsidiaries shall have the non-exclusive, worldwide, limited right to use the Subsidiary Services ordered by Customer, during the
applicable period set forth in the Estimate/Order Form or SOW, solely for their internal business operations. Customer is responsible for
its Users’ compliance with the Agreement and the applicable Estimate/Order Form under which the Subsidiary Services were ordered.
Customer acknowledges and agrees that if the Customer has obtained the rights to use the Subsidiary Services:
i. the combined use of the Subsidiary Services by Customer and Customer’s majority owned subsidiaries must not exceed the
quantities and usage limits described in the applicable Estimate/Order Form;
ii. Oracle will provision an environment for Customer and will not create additional environments for Customer’s majority owned
subsidiaries and all content (including Personal Information and Customer Data) of Customer and Customer’s majority owned
subsidiaries will reside in that same environment;
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iii. Customer and Customer’s majority owned subsidiaries may be able to access, view, use, create, modify, delete, and transfer each
other’s content (including Personal Information and Customer Data) in that same environment;
iv. Oracle will provide the Subsidiary Services to Customer’s majority owned subsidiaries pursuant to the standard capabilities and
management and under the same Customer account number assigned to Customer; and
v. Customer acknowledges and agrees that all rights and obligations under the Data Processing Agreement, including providing
instructions to Oracle, are exercisable exclusively by Customer. Notwithstanding the foregoing, Customer further
acknowledges and agrees that Oracle has no obligation to ensure the compatibility or accuracy of such instructions with any
other instructions received from Customer, and Oracle is not responsible for the effect of any conflicting instructions.
If Customer exceeds the quantity of Services ordered, then Customer promptly must purchase and pay fees for the excess quantity utilized.
2.1. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on
Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it
should change.
2.2. Intentionally left blank.
2.3. General Restrictions.
2.3.1. Customer may not, and may not cause, aid, abet or permit others to: (a) use the Services to harass any person; cause damage or
injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote
bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; sell, manufacture,
market and/or distribute any product or service in violation of applicable laws; or otherwise violate applicable laws, ordinances or
regulations; (b) perform or disclose any benchmarking, availability or performance testing of the Services; or (c) perform or disclose any
performance or vulnerability testing of the Services without Oracle’s prior written approval, perform or disclose network discovery, port
and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services (the “Acceptable
Use Policy”). In addition to other rights that Oracle has in the Agreement and Customer Estimate/Order Form, Oracle has the right to
take remedial action if the Acceptable Use Policy is violated, and such remedial action may include, without limitation, removing or
disabling access to material that violates the policy and/or terminating the Customer’s Services.
2.3.2. Customer may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile,
reverse engineer, reproduce , republish, download, or copy any part of the Services (including data structures or similar materials
produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to Oracle;
or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make
available the Services to any third party except as permitted by the Agreement or Customer Estimate/Order Form.
2.3.3. HIPAA. Unless otherwise specified in Customer’s Estimate/Order Form, Customer agrees that: (i) Oracle is not acting on
Customer’s behalf as a Business Associate or subcontractor; (ii) the Cloud Service may not be used to store, maintain, process or transmit
protected health information (“PHI”) and (iii) the Cloud Service will not be used in any manner that would require Oracle or the Cloud
Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”).
In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the
meanings described in HIPAA.
2.4. Third Party Applications; Customer Developed SuiteApps.
2.4.1. The Services may enable Customer to link to, transfer Customer Data to, or otherwise access, Third Party Applications. Except
as expressly set forth in the Estimate/Order Form, Oracle does not warrant any such control and is not responsible for Third Party
Applications, regardless of whether or not such Third Party Applications are provided by a third party that is a member of an Oracle
partner program or otherwise designated by Oracle as “Built For NetSuite,” "certified," "approved" or “recommended”. If Customer installs
or enables Third Party Applications for use with the Cloud Service, Customer agrees that Oracle may enable such third party providers
to access Customer Data for the interoperation of such Third Party Applications with the Cloud Service, and any exchange of data or
other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a
separate privacy policy or other terms governing Customer’s access to or use of the Third Party Applications.
2.4.2. Any Third Party Applications Oracle makes accessible are provided on an “as-is” and “as available” basis without any warranty
of any kind. Oracle disclaims all liabilities arising from or related to Third Party Applications. Oracle shall not be responsible for any
disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers.
No procurement of such Third Party Applications is required to use the Cloud Service.
2.4.3. If Customer was referred to Oracle by a member of one of Oracle’s partner programs, Customer hereby authorizes Oracle, or its
applicable Affiliate, to provide such member or its successor entity with access to Customer’s business information related to the
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procurement and use of the Cloud Service pursuant to the Agreement, including but not limited to User names and email addresses,
support cases and billing/payment information.
2.4.4. Customer acknowledges that: (a) the nature, type, quality and availability of Third Party Applications may change at any time
during the Term, and (b) features of the Cloud Services that interoperate with Third Party Applications may depend on the continuing
availability of such Third Party Applications. Any change to Third Party Applications, including their unavailability, during the Term
does not affect Customer’s obligations under this Agreement or the applicable Estimate/Order Form, and Customer will not be entitled
to any refund, credit or other compensation due to any such changes.
2.4.5. Customer Developed SuiteApps. Customer developed SuiteApps are considered Third Party Applications under the Agreement.
Customer is solely responsible for controlling access to (including accessible attributes) Customer’s developed SuiteApps. Oracle reserves
the right to inspect all Customer developed SuiteApps.
2.5. Intentionally left blank.
2.6. Intentionally left blank.
2.7. Support Services, Professional Services and Training Services.
2.7.1. Support Services. Support Services are further described in the Oracle NetSuite Hosting and Support Delivery Policies. Oracle
also offers optional “for fee” Support Services.
2.7.2. Professional Services. Oracle offers optional “for fee” Professional Services. Oracle will provide Customer with Professional
Services as set forth in an SOW executed by Oracle and Customer or an Estimate/Order Form executed by Customer and accepted by
Oracle. All SOWs are subject to the terms of this Agreement.
2.7.3. Training Services. All training services, including any Deliverables, are provided for Customer’s internal training purposes only.
Customer may not replicate the Deliverables or use the Deliverables to develop any of the products described in such training
Deliverables. Training Deliverables are not subject to any maintenance, support, or updates.
2.8. Security. Oracle shall maintain commercially reasonable administrative, physical and technical safeguards designed for the
protection, confidentiality and integrity of Customer Data as described in the Oracle NetSuite Hosting and Support Delivery Policies
available at https://www.oracle.com/corporate/contracts/cloud-services/netsuite/cloud-delivery-policies.html.
2.9. Intentionally left blank.
2.10. Data Protection.
2.10.1. In performing the Services, Oracle will comply with the Oracle Services Privacy Policy, which is available at
https://www.oracle.com/html/Services-privacy-policy.html and incorporated herein by reference. The Oracle Services Privacy Policy is
subject to change at Oracle’s discretion; however, Oracle policy changes will not result in a material reduction in the level of protection
provided for Customer’s Personal Information (as defined in Oracle’s Data Processing Agreement) provided as part of Customer Data
during the Term.
2.10.2. Unless otherwise provided in the applicable Estimate/Order Form, the version of Oracle’s Data Processing Agreement for Oracle
Services (the “Data Processing Agreement”) applicable to Customer’s Estimate/Order Form, which is available at
https://www.oracle.com/corporate/contracts, as of the Estimate/Order Form Effective Date, and is incorporated herein by reference, will
remain in force during the Term specified in the Customer’s Estimate/Order Form. The Data Processing Agreement describes the parties’
respective roles for the processing and control of Personal Information that Customer provides to Oracle as part of the Services. Unless
otherwise provided in the applicable Estimate/Order Form, Oracle will act as a data processor, and will act on Customer instructions
concerning the treatment of Customer’s Personal Information residing in the services environment, as specified in the Agreement, the
Data Processing Agreement and the applicable Estimate/Order Form. Customer agrees to provide any notices and obtain any consents
related to Customer’s use of the Services and Oracle’s provision of the Services, including those related to the collection, use, processing,
transfer and disclosure of Personal Information.
2.10.3. The Data Processing Agreement does not apply to any (1) demonstration accounts, trials, beta releases, or other similar versions
of the services or (2) any features, services or products which are provided pursuant to a separate agreement or by a party other than
Oracle (e.g., where Oracle is merely a billing/collection agent) including but not limited to Celigo and Pacejet.
2.11. Confidentiality.
2.11.1. By virtue of the Agreement, the parties may disclose to each other information that is confidential (“Confidential Information”).
Confidential Information shall be limited to the terms and pricing under the Agreement and Customer’s Estimate/Order Forms, Customer
Data residing in the Cloud Service, and all information clearly identified as confidential at the time of disclosure.
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2.11.2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no
act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without
restriction on the disclosure; or (d) is independently developed by the other party.
2.11.3. Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the
following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the
receiving party; however, Oracle will protect the confidentiality of Customer Data residing in the Cloud Service for as long as such
information resides in the Cloud Service. Each party may disclose Confidential Information only to those employees, agents or
subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under the
Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity
as required by law. Oracle will protect the confidentiality of Customer Data residing in the Services in accordance with the Oracle
security practices applicable to Customer’s Estimate/Order Form as described in the Agreement or such Estimate/Order Form.
2.12. Ownership of Customer Data. As between Oracle and Customer, all title and intellectual property rights in and to the Customer
Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Service, Oracle
may store and maintain Customer Data for a period of time consistent with Oracle’s standard business processes for the Services.
Following expiration or termination of the Agreement or a Customer account, if applicable, Oracle will deactivate the applicable
Customer account(s) and delete any data therein. Customer grants Oracle the right to host, use, process, display and transmit Customer
Data to provide the Services pursuant to and in accordance with the Agreement and the applicable Estimate/Order Form or SOW.
Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for
obtaining all rights related to Customer Data required by Oracle to perform the Services.
2.13. Oracle Intellectual Property Rights. All rights, title and interest in and to the Services (including without limitation all
intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service
provided or developed by Oracle) and anything developed or delivered by or on behalf of Oracle under the Agreement (including without
limitation Deliverables, and SuiteCloud Technologies) are owned exclusively by Oracle or its licensors. Except as provided in the
Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Se rvice or
any intellectual property rights thereto. Customer grants Oracle a royalty free, worldwide, perpetual, irrevocable, transferable right to
use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request,
recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or
functionality of the Services. Any rights in the Services or Oracle’s intellectual property not expressly granted herein by Oracle are
reserved by Oracle. Oracle, NetSuite and SuiteProjects Pro service marks, logos and product and service names are marks of Oracle (the
"Oracle Marks"). Customer agrees not to display or use the Oracle Marks in any manner without Oracle’s express prior written permission.
The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer
is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
2.14. Intentionally left blank.
2.15. Updates. During the Term identified in Customer’s Estimate/Order Form, Oracle may update the Services and the Oracle
NetSuite Written Materials to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of
system use, and availability of Third Party Applications. Oracle updates to the Services or the Oracle NetSuite Written Materials will not
materially reduce the level of performance, functionality, security or availability of the Services during the Term.
3. Warranties, Disclaimers and Exclusive Remedies.
3.1. Each party represents that it has validly entered into the Agreement and that it has the power and authority to do so. Oracle
warrants that during the Term, Oracle will perform (i) the Cloud Service using commercially reasonable care and skill in all material
respects as described in the Oracle NetSuite Written Materials, and (ii) any Professional Services and Support Services in a professional
manner consistent with industry standards (the warranties described by the foregoing clauses (i) and (ii), collectively, the “Services
Warranty”). If the Services provided to Customer were not performed as warranted, Customer must promptly provide Oracle with a
written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying Oracle of the
deficiency in the Services). For Professional Services, Customer must notify Oracle of any warranty deficiencies within sixty (60) days
from performance of the deficient Professional Services.
3.2. ORACLE DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED,
THAT ORACLE WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS
OR EXPECTATIONS. ORACLE IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR
SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS OR SERVICES
PROVIDED BY THIRD PARTIES.
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3.3. FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND ORACLE’S ENTIRE
LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF
ORACLE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER
MAY END THE DEFICIENT SERVICES AND ORACLE WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED
SERVICES THAT CUSTOMER PRE-PAID TO ORACLE FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
3.4. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER
EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR
ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. Intentionally Left Blank.
5. Indemnification.
5.1. If a third party makes a claim against either Customer or Oracle (“Recipient” which may refer to Customer or Oracle depending
upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or
material (collectively, “Material”) furnished by either Customer or Oracle (“Provider” which may refer to Customer or Oracle depending
on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at
the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities,
costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the
Recipient does the following:
a. notifies the Provider promptly in writing, not later than thirty (30) days after the Recipient receives notice of the claim (or
sooner if required by applicable law);
b. gives the Provider sole control of the defense and any settlement negotiations; and
c. gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
5.2. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights,
the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or
obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for,
and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for
such Material. If such return materially affects Oracle’s ability to meet obligations under the relevant Estimate/Order Form, then Oracle
may, upon thirty (30) days prior written notice, terminate the Estimate/Order Form. If such Material is third party technology and the
terms of the third party license do not allow us to terminate the license, then Oracle may, upon thirty (30) days prior written notice, end
the Services associated with such Material and refund any unused, prepaid fees for such Services.
5.3. The Provider will not indemnify the Recipient if the Recipient (a) alters the Material or uses it outside the scope of use identified
in the Provider’s user or program documentation or the User Guides, or (b) uses a version of the Material which has been superseded, if
the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the
Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any Material not
furnished by the Provider. Oracle will not indemnify Customer to the extent that an infringement claim is based on a Third Party
Application or any Material from a third party portal or other external source that is accessible or made available to Customer within or
by the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, marketing
data from third party data providers, etc.).
5.4. This Section 5 provides the parties’ exclusive remedy for any infringement claims or damages.
6. Suspension/Termination.
6.1. Suspension for Delinquent Account. Oracle reserves the right to suspend Customer’s access to and/or use of the Services if any
payment is due but unpaid.
6.2. Suspension for Ongoing Harm. Oracle may suspend Customer’s or Users’ access to, or use of, the Services, including without
limitation, SuiteCloud Technologies, if Oracle believes that (a) there is a significant threat to the functionality, security, integrity, or
availability of the Services or any content, data, or applications in the Services; (b) Customer or Users are accessing or using the Services
to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted,
Oracle will provide Customer with advance notice of any such suspension. Oracle will use reasonable efforts to re-establish the Services
promptly after Oracle determines that the issue causing the suspension has been resolved. During any suspension period, Oracle will
make Customer Data (as it existed on the suspension date) available to Customer. Any suspension under this section shall not excuse
Customer from Customer’s obligation to make payments under the Agreement.
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6.3. Termination for Cause. If either Customer or Oracle breaches a material term of the Agreement or any Estimate/Order Form
or SOW and fails to correct the breach within thirty (30) days of written specification of the breach, then the breaching party is in default
and the non-breaching party may terminate (a) in the case of breach of any Estimate/Order Form or SOW, the Estimate/Order Form and
any applicable SOW under which the breach occurred; or (b) in the case of breach of the Agreement, the Agreement and all
Estimates/Order Forms and SOWs that been placed under the Agreement. If Oracle terminates any Estimate/Order Forms as specified
in the preceding sentence, Customer must pay within thirty (30) days all amounts that have accrued prior to such termination, as well as
all sums remaining unpaid for the Services under such Estimates/Order Forms and SOWs plus related taxes and expenses. Except for
nonpayment of fees, the nonbreaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the
breaching party continues reasonable efforts to cure the breach. Customer agrees that if it is in breach under the Agreement, Customer
may not use those Services ordered.
6.4. Customer agrees that Oracle shall not be liable to Customer or other third party for any suspension pursuant to this Section 6.
7. Modifications; Discontinuation of Services.
7.1 To the Service. Oracle reserves the right to discontinue offering the Services at the conclusion of Customer’s then current Term
for such Services.
7.2 To Applicable Terms. Oracle may make changes to these Terms of Service and such changes will be effective thirty (30) days
from the date they are posted online. If Oracle makes a material change to these Terms of Service, and the change has a material adverse
impact on Customer and Customer does not agree to the change, Customer must so notify Oracle via legalnotices@netsuite.com prior to
the end of Customer’s then current Term (“Notification Date”). If Customer notifies Oracle as required, then as of the Notification Date,
Customer will remain governed by the Terms of Service in effect immediately prior to the change until the end of the then current Term
for the affected Service(s). If the affected Service(s) is renewed, it will be renewed under Oracle's then current Terms of Service.
8. Service Monitoring and Analyses
8.1 Oracle continuously monitors the Cloud Service to facilitate Oracle’s operation of the Services; to help resolve Customer service
requests; to improve and optimize Customer’s use of the Services; to detect and address threats to the functionality, security, integrity,
and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or
violations of the Acceptable Use Policy. Oracle monitoring tools do not collect or store any Customer Data residing in the Services,
except as needed for such purposes. Oracle does not monitor, and does not address issues with, non-Oracle software provided by Customer
or any of Customer’s Users that is stored in, or run on or through, the Services. Information collected by Oracle monitoring tools
(excluding Customer Data) may also be used to assist in managing Oracle’s product and service portfolio, to help Oracle address
deficiencies in its product and service offerings, and for license management purposes.
8.2 Oracle may (i) compile statistical and other information related to the performance, operation, and use of the Services, and (ii)
use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and
development purposes (clauses (i) and (ii) are collectively referred to as “Service Analyses”). Oracle retains all intellectual property rights
in Service Analyses.
9. Export.
9.1. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services.
Such export laws govern use of the Services (including technical data) and any Services deliverables provided under the Agreement, and
Customer and Oracle each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export”
regulations). Customer agrees that no data, information, software programs and/or materials resulting from the Services (or direct product
thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws
including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
9.2. Customer acknowledges that the Services are designed with capabilities for Customer and Customer Users to access the Services
without regard to geographic location and to transfer or otherwise move Customer Data between the Services and other locations such
as User workstations. Customer is solely responsible for the authorization and management of User accounts across geographic locations,
as well as export control and geographic transfer of Customer Data.
10. Intentionally left blank.
11. Non-Impediment. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Oracle to provide
consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or
developing materials which are similar to and/or competitive with the Professional Services and/or Deliverables hereunder).
12. Order of Precedence. In the event of any inconsistencies between the terms of an Estimate/Order Form and the Agreement, the
Estimate/Order Form shall take precedence; however, unless expressly stated otherwise in an Estimate/Order Form, the terms of the Data
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Processing Agreement shall take precedence over any inconsistent terms in an Estimate/Order Form. In the event of any inconsistencies
between the Subscription Services Agreement and these Terms of Service, the Terms of Service shall take precedence.
13. Oracle Business Partners. Oracle’s business partners and other third parties, including any third parties with which the Services
have integrations or that are retained by Customer to provide consulting services, implementation services or applications that interact
with the Services, are independent of Oracle and are not Oracle’s agents. Oracle makes no representation or warranty about the suitability
of any Oracle business partner or any third party in connection with the provision of consulting services, implementation services or
applications. Customer is solely responsible for selection of any third parties Customer engages to provide consulting services or
implementation services. Oracle is not liable for, bound by, or responsible for any problems with the Services or Customer Data arising
due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as Oracle’s
subcontractor on an engagement ordered under the Agreement and, if so, then only to the same extent as Oracle would be responsible
for our resources under the Agreement.
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