NetSuite - NetFlex Application Partner Agreement

Transcription

1 NetSuite - NetFlex Application Partner Agreement ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU BY CLICKING THE I AGREE BUTTON DISPLAYED HEREWITH. YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT GOVERNING THE NETFLEX APPLICATION PARTNER PROGRAM BEFORE CLICKING I AGREE. BY CLICKING I AGREE YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS NETFLEX PARTNER AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER LEGAL ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN YOU MUST CLICK I DECLINE AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE NETFLEX APPLICATION PARTNER PROGRAM. This NetFlex Application Partner Agreement ( Agreement ) is entered into as of the date ( Effective Date ) that you (hereafter referred to as NetFlex Partner ) click I Agree. This Agreement is between NetFlex Partner and NetSuite Inc., a California corporation ( NetSuite ), with its headquarters located at 2955 Campus Drive, Suite 100, San Mateo, California WHEREAS, NetSuite through its hosted ASP/IT provides a comprehensive solution for businesses that integrates Enterprise Resource Planning ( ERP ), Customer Relationship Management ( CRM ), E-commerce (web site hosting, web store transactions) and partner collaboration capabilities. The ASP/IT provides private transactions within a 128-bit encoded level of security and offers valued-added application services that include: (1) business insight; (2) ERP; (3) CRM; (4) employee management and collaboration; and (5) web presence and back office system integration (hereinafter the NetSuite Application ). For purposes of this Agreement, the NetSuite Application shall include any updates, modifications, bug fixes, upgrades, enhancements and new versions of the NetSuite Application and also includes the Documentation related to the NetSuite Application; and WHEREAS, NetFlex Partner desires for NetSuite to make such NetSuite Application accessible to NetFlex Partner and to permit NetFlex Partner to integrate its Partner Application with the NetSuite Application in order to offer Customers a more integrated solution; and WHEREAS, NetSuite desires to work with NetFlex Partner to make the NetSuite Application available, all in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and conditions contained in this Agreement, the Parties agree as follows: 1. Definitions: For the purposes of this Agreement, the definitions set forth in Attachment A shall apply to the respective capitalized terms in this Agreement. 2. NetFlex Partner License And Reservations Of Rights Authorization to Use NetSuite Application. Subject to the terms and conditions of this Agreement, NetSuite hereby grants to NetFlex Partner, and its Authorized Agents only, the worldwide, non-exclusive, nontransferable, nonsublicensable and terminable right (terminable solely in accordance with the express terms of this Agreement) to access and use the NetSuite Application solely for its development efforts, as may be necessary to build and otherwise integrate the Partner Application with the NetSuite Application. For avoidance of doubt, this shall categorically exclude any access to and/or use of any of NetSuite s source-code, including, but not limited to, the NetSuite Application source-code, and NetFlex Partner shall have no right to use the NetSuite Application functionality for NetFlex Partner s regular business operations other than for its development of a Partner Application, unless NetFlex Partner separately executes a NetSuite license agreement for use of the NetSuite Application Development Account. Subject to the terms and conditions of this Agreement and any additional terms of service which will be mutually agreed to by NetSuite and NetFlex Partner following execution of this Agreement, NetSuite grants NetFlex Partner during the term of this Agreement a worldwide, non-exclusive, non-transferable and terminable license (terminable solely in accordance with the express terms of this

2 Agreement) to use and display content for one (1) demonstration account of the NetSuite Application solely for demonstration purposes in order to promote and sell the Certified Partner Application to prospective Customers, provided such use is for internal business use only and shall not include service bureau use, outsourcing, renting or time-sharing the NetSuite Application. The rights granted to NetFlex Partner in this Section 2.2 are provided on the condition that NetFlex Partner does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any NetSuite software or any part of the NetSuite Application, or otherwise attempt to discover any source code, modify the NetSuite Application or use unauthorized modified versions of the NetSuite Application, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the NetSuite Application. Except as provided in this Agreement, the license granted in this Section 2.2 to NetFlex Partner does not convey any rights in the NetSuite Application, express or implied, or ownership in the NetSuite Application or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by NetSuite License for Documentation. Subject to the terms and conditions set forth in this Agreement, NetSuite hereby grants to NetFlex Partner and its Authorized Agents, a worldwide, non-exclusive, nontransferable license during the term of this Agreement solely to use NetSuite s Documentation in order to integrate the Partner Application into the NetSuite Application. NetFlex Partner shall not reprint, distribute or embed this content in any form whatsoever without the prior written consent of NetSuite Trademark License Grant. In the event that either Party ( Trademark Licensor ) permits the other Party ( Trademark Licensee ) to use the Trademark Licensor s trademarks, service marks, logos, insignias, trade dress or other proprietary trade designations ( Trademarks ) in connection with this Agreement, Trademark Licensee is granted a worldwide, limited, non-exclusive, non-transferable, revocable, royalty-free and fully-paid license during the term of this Agreement to use such Trademarks solely for purposes related to performance under this Agreement, including use in Trademark Licensee s web site, advertisements or promotional materials. Trademark Licensor will have the right to approve the format and presentation of its Trademarks as used by Trademark Licensee. Trademark Licensee s use of Trademark Licensor s Trademarks, including all goodwill arising therefrom, will inure to the benefit of Trademark Licensor Conditions for Use. Except as otherwise provided hereunder, all uses by Trademark Licensee of Trademark Licensor s Trademarks will be in accordance with such quality control standards as Trademark Licensor may promulgate from time to time. Trademark Licensee agrees to refrain from all uses of Trademark Licensor s Trademarks to which Trademark Licensor objects. All web sites, advertisements and other promotional materials prepared by Trademark Licensee that display Trademark Licensor s Trademarks will also bear the appropriate copyright and/or trademark notices as prescribed by Trademark Licensor. Trademark Licensee agrees that it will not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt any name, mark or logo that is confusingly similar to Trademark Licensor s Trademarks. At no time during the term of this Agreement or thereafter will Trademark Licensee challenge or file any application with respect to any Trademarks of Trademark Licensor Limitations. The Parties further agree as follows: (A) The Parties acknowledge that any use of the NetSuite Application and the NetSuite Documentation except as expressly permitted by this Agreement or other agreement, is prohibited; and (B) Except as otherwise expressly permitted under this Agreement, NetFlex Partner shall not, and NetFlex Partner shall not authorize its Customers or any Authorized Agent, or any other Person to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any NetSuite software or any part of the NetSuite Application, or otherwise attempt to discover any source code, modify the NetSuite Application or use unauthorized modified versions of the NetSuite Application, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the NetSuite Application, or modify, adapt, alter, translate create or have created derivative works of the NetSuite Documentation NetSuite s Reservation of Rights. All rights not expressly granted to NetFlex Partner are expressly reserved by NetSuite. NetSuite further reserves the right in its sole discretion to limit the time, manner, and amount of Customer Data transmitted to the NetSuite Application by NetFlex Partner, any Authorized Agent and/or any Customer. NetFlex Partner Agreement

3 2.8. Intellectual Property Ownership NetFlex Partner Rights. Notwithstanding anything to the contrary in this Agreement, NetSuite acknowledges and agrees that NetFlex Partner is the exclusive owner of all right, title and interest in and to all patent rights, copyrights, trademarks, know-how, trade secrets, inventions, ideas, systems, programs, software, source code, modules, applications, documentation, including written or electronic reports, analysis or other working papers, and other work product developed, prepared or designed in connection with the Partner Application/Certified Partner Application and all other intellectual property rights inherent in and appurtenant to the Partner Application/Certified Partner Application, including, but not limited to, requests, feedback, recommendations provided by any Person. For avoidance of doubt, NetFlex Partner shall own any application (or tool) developed by NetFlex Partner to connect with the NetSuite Application NetSuite Rights. Notwithstanding anything to the contrary in this Agreement, NetFlex Partner acknowledges and agrees that NetSuite is the exclusive owner of all right, title and interest in and to all patent rights, copyrights, trademarks, know-how, trade secrets, inventions, ideas, systems, programs, software, source code, modules, applications, documentation, including written or electronic reports, analysis or other working papers, and other work product developed, prepared or designed in connection with the NetSuite Application and all other intellectual property rights inherent in and appurtenant to the NetSuite Application, including, but not limited to, requests, feedback, recommendations provided by any Person Inspection. NetSuite shall be given the opportunity to discuss with NetFlex Partner, and/or its Authorized Agent, the integration method for the NetSuite Application and shall be entitled to approve the final product integration connection between the NetSuite Application and the Partner Application, provided however, that such approval shall not be unreasonably withheld, conditioned or delayed and the sole basis for failing to approve such connection shall be if the final product integration connection adversely affects the functionality or security of the NetSuite Application or NetSuite's ongoing business operations. 3. NetSuite Obligations Level Of Service. As further described in Sections 4 and 6 of this Agreement, NetSuite will offer differing levels of Service depending upon whether NetFlex Partner ultimately qualifies and is certified by NetSuite as a CNAP Modification Obligation. To the extent that NetSuite modifies, upgrades, augments or otherwise changes the NetSuite Application in a manner that is reasonably likely to affect the integration of the Partner Application with the NetSuite Application, it shall be NetSuite s responsibility to give NetFlex Partner at least sixty (60) days prior written notice of the same, and then it shall be the responsibility of NetFlex Partner and/or any Authorized Agent to keep current with the NetSuite Application. NetSuite shall not be responsible for any Customer s interruption or inability to access the Certified Partner Application based upon NetFlex Partner s or its Authorized Agent s failure to keep current with the NetSuite Application. 4. NetFlex Partner Program License. Upon acceptance of this Agreement, NetFlex Partner shall be granted the license to use and access the NetSuite Application and the NetSuite Documentation as provided in Section 2 of this Agreement and subject to the terms and conditions of this Agreement License Pricing. There is currently no charge for NetFlex Partner licenses and no annual fee to maintain such licenses. NetSuite reserves the right to charge a fee or otherwise modify its pricing structure in the future at its sole discretion. In the event, that NetSuite commences to charge for NetFlex Partner Program licenses, NetSuite will provide NetFlex Partner with 90 days advance notice of such change. NetFlex Partner Agreement

4 4.3. Developer Demonstration Account. Upon acceptance of this Agreement, NetFlex Partner shall be provided with a NetFlex Partner Demonstration Account as provided in Section 2 of this Agreement and subject to the terms and conditions of this Agreement Account Information And Data. NetFlex Partner shall be solely responsible for the accuracy, completeness, quality, legal right to use or posses, appropriateness and reliability of all information provided by NetFlex Partner to NetSuite. NetSuite is not responsible for the correction, damage, destruction, loss, or failure to store any Customer Data caused by NetFlex Partner or the Partner Application/Certified Partner Application Security. NetFlex Partner shall notify NetSuite as soon as practicable of any unauthorized use of any password or account or any other breach or suspected breach of security Web Services Beta Access. In the event that NetSuite develops a beta program, upon NetFlex Partner s request and space permitting, NetFlex Partner shall be granted web services Beta Access Technical Support. NetSuite shall provide NetFlex Partner with peer support through NetSuite moderated user forums and may provide limited Confidentiality Mutual Obligations. Each Party shall take all reasonable steps to assure that any material or information considered by either Party to be confidential which has or will come into the possession or knowledge of each in connection with this Agreement, whether transmitted prior to or after the Effective Date, shall not be disclosed to others, in whole or in part, without the prior written permission of the other Party, and shall be used solely for the purpose for which such material or information was provided and for no other purpose whatsoever. NetSuite and NetFlex Partner consider information to be confidential if it is a trade secret or proprietary information which relates to either of the Parties past, present and future research, development and business activities, and which is information either identified as being Confidential Information or which is information that a reasonable business person would understand to be Confidential Information. Examples of Confidential Information include, but are not limited to, the terms and conditions of this Agreement and a Party s customer lists, pricing policies, market analyses, market projections, consulting and sales methods and techniques, expansion plans, programs, program decks, routines, subroutines, operating systems, object and source codes, updates thereto and related items, including, but not limited to, specifications, layout, charts and other like materials and documents, together with all information, data and know-how, technical or otherwise, included therein, manuals, printouts, notes and annotations on disks, diskettes, tapes or cassettes, both master and duplicates Exceptions. Neither Party will have any obligation to maintain the confidentiality of any data or information which (a) was in receiving Party s lawful possession prior to the submission thereof by the other Party, (b) is later lawfully made available to the receiving Party by a third party having no obligation of secrecy to the other Party, (c) is independently developed by the receiving Party, (d) is or later becomes available to the public through no act or failure to act by the receiving Party, or (e) is required to be disclosed by a governmental agency or by a proper order of a court of competent jurisdiction; provided, however, that the receiving Party will use commercially reasonable efforts to minimize such disclosure and will consult with and cooperate with the disclosing Party s efforts to obtain a protective order prior to such disclosure Return of Information. The recipient Party shall promptly return such confidential and/or proprietary information to the Party providing the information upon the providing Party s request Independent Contractors. NetFlex Partner may utilize the services of independent contractors who may necessarily gain access to NetSuite s Confidential Information in the course of providing services to NetFlex Partner. As a condition of each independent contractor s access to NetSuite s Confidential Information, the independent contractor shall execute an agreement with NetFlex Partner in which the independent contractor agrees to use NetSuite s Confidential Information only to perform services for NetFlex Partner and agrees not to disclose NetSuite s Confidential Information to any third party or to use such information for its own purposes. NetFlex Partner Agreement

5 5.5. Notice to NetSuite of NetFlex Partner s Use of Independent Contractors. In the event NetFlex Partner seeks to utilize the services of an independent contractor that it determines may gain access to NetSuite s Confidential Information or may otherwise affect NetSuite s provision of or access to and use of the NetSuite Application through the Certified Partner Application, NetFlex Partner agrees to (a) provide reasonable advance notice to NetSuite of the identity of such proposed contractor, and (b) solicit NetSuite s input regarding the retention of such proposed contractor, provided that NetFlex Partner, in the absence of a specifically articulated conflict by NetSuite, shall have the sole authority to determine whether to retain such contractor to provide such services. 6. Certification Application. NetFlex Partner may apply to NetSuite for certification of its Certified Partner Application (or Certified Partner Applications) at any time during the Term of this Agreement Application Fees Initial Certification Fee: NetFlex Partner shall pay NetSuite $7,500 for NetSuite s initial certification review of NetFlex Partner s Certified Partner Application Renewal Certification Fee: NetFlex Partner shall pay NetSuite a fee of $2,500 for each Renewed Certification Certification Review. In order to become a Certified NetFlex Partner Application Provider, NetFlex Partner s Certified Partner Application must pass a set of minimum compatibility and quality tests in strict compliance with NetSuite s Certification Standards, which are available for review on the NetFlex portal at and which are hereby incorporated by reference. NetSuite reserves the right to change its Certification Standards at any time in its sole discretion Certification Period. NetSuite s certification shall be valid for one year. 7. Certified Program. Following certification by NetSuite, NetFlex Partner shall be considered a Certified NetFlex Partner Application Provider ( CNAP ), and shall be eligible for the following: 7.1. Logo. CNAP shall be authorized in accordance with Sections of this Agreement to use NetSuite s NetSuite Certified Partner Application Logo for CNAP s marketing efforts NetFlex Applications Directory. CNAP shall be included in NetSuite s NetFlex Applications Directory Marketing. NetSuite shall promote CNAP through the NetSuite portal through newsletters, partner conferences, tradeshows, and similar events. In addition, as mutually subsequently negotiated in a comarketing plan developed between the parties, NetSuite and CNAP will participate in co-hosted webcasts and joint public relations events and will also generate and distribute joint solution sales collateral Support And Maintenance. In order to ensure high quality, CNAP shall be required to adequately maintain and support the Certified Partner Application. In the event that NetSuite determines, in its sole discretion, that CNAP is not adequately maintaining the Certified Partner Application, NetSuite may terminate this Agreement in accordance with Section Term, Termination, And Suspension Term of Agreement. Unless earlier terminated pursuant to Sections 8.2 or 8.3, the term of this Agreement (a) will begin on the Effective Date and will conclude after a period of one (1) year, and (b) will be automatically extended for a one year period following the Effective Date or Certification Date, whichever is later; and (c) will automatically be extended for successive Renewal Terms of one (1) year each unless either NetFlex Partner Agreement

6 Party gives written notice of non-renewal to the other Party at least ninety (90) days before the expiration of the then-current term Termination for Breach. Either Party may terminate this Agreement or license granted hereunder in the event of a material default by the other. The non-performance of any obligation hereunder shall not be deemed a default unless the same shall not have been cured within thirty (30) days after the non-performing Party has received written notice of such non-performance from the other Party Termination Without Cause. Either Party may terminate this Agreement by giving the other Party sixty (60) days prior written notice Suspension. NetSuite reserves the right to suspend without notice NetFlex Partner s access to the NetSuite Application and/or the Development Test Account and/or the licenses granted under this Agreement for NetFlex Partner s material violations of this Agreement and/or unlawful activity. 9. Notices Required Notices. The Parties agree that all notices relating to Termination, Breach, and other similar material provisions of this Agreement shall delivered as provided by this Section 9.1. Any notices may be delivered to NetSuite by directing them to billing@netsuite.com and may be delivered to NetFlex Partner at the NetFlex Partner s contact information as provided to NetSuite Change of Address. Any Party may, from time to time, by written notice to the other Party, designate a different address, which shall be substituted for the one specified in Section 9.1 for such Party. 10. General Representations and Warranties NetSuite Representations and Warranties. NetSuite represents and warrants to NetFlex Partner that: (a) it is duly organized, validly existing and in good standing under the laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by law; (b) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform its obligations under this Agreement; (c) it has the right to grant all applicable licenses to NetFlex Partner under this Agreement; and (d) it has such right, title and interest in and to the NetSuite Application and any Trademarks necessary for it to grant the licenses to NetFlex Partner under this Agreement, and use of the NetSuite Application and any such Trademarks will not violate or infringe upon any patent, trademark, copyright, trade secret or other proprietary right of any person or entity NetFlex Partner Representations and Warranties. NetFlex Partner represents and warrants to NetSuite that: (a) it is duly organized, validly existing and in good standing under the laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by law; (b) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform its obligations under this Agreement; (c) it shall not promote the Certified Partner Application to any prospective Customer where NetFlex Partner or its agents and/or representatives do not have the capabilities and resources necessary to provide an appropriate level of professional services related to the NetSuite Application to such prospective customers; and (d) it shall competently serve any and all Customers that subscribe for access to, and use of, the NetSuite Application. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10 OF THIS AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 11. Limitation of Liability. EXCEPT FOR LIABILITY PURSUANT TO SECTIONS 2 AND 5 AND THE PARTIES RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTION 12 NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, 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), NetFlex Partner Agreement

7 STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL EITHER PARTY S LIABILITY TO THE OTHER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF THE FEES PAID FROM NETFLEX PARTNER TO NETSUITE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. 12. Indemnification NetSuite s Indemnification of NetFlex Partner. NetSuite agrees that it will, at its own expense, defend, indemnify and hold NetFlex Partner harmless from and against all actions, proceedings, claims, demands, damages, costs, and expenses, including attorneys fees and costs (whether by settlement or award of damages made against NetFlex Partner by a final judicial judgment), by or due to any third party with respect to the infringement or alleged infringement of any United States Letters Patent, trademark, copyright, trade secret or other proprietary right which may be involved in its provision of the NetSuite Application or relating to any license granted by NetSuite hereunder ( Claim ) NetFlex Partner s Indemnification of NetSuite. NetFlex Partner shall indemnify, defend and hold NetSuite, its officers, directors, employees, agents, attorneys, affiliates and subsidiaries and their successors and assigns harmless from any loss, claim, damage, cost or expense, including but not limited to reasonable attorneys fees and costs, that are incurred as a result of third party claims against NetSuite arising out of or related to NetFlex Partner s infringement of any third party s rights and related to the development, maintenance, and or sale of the Certified Partner Application Procedure. The Party which has received a Claim from a third-party ( Indemnified Party ) shall give the Indemnifying Party prompt written notice of any Claim which shall (a) permit the Indemnifying Party to defend the same and give the Indemnifying Party all reasonably available information, assistance and authority in connection therewith and (b) give the Indemnifying Party control over the defense of such Claim, including appeals, and of all negotiations therefore, including the right to effect the settlement or compromise thereof. The Indemnifying Party shall agree, in writing, to defend and indemnify the Indemnified Party against a Claim, without reservation, within thirty (30) days after receiving notice of the Claim from Indemnified Party. In the event that the Indemnifying Party fails to agree to defend and indemnify the Indemnified Party, without reservation, within the 30-day period, or indicates its intent not to agree, the Indemnified Party shall be entitled to assert and maintain control over the defense of the Claim, including appeals, and of all negotiations therefore, including the right to effect the settlement or compromise thereof, and shall be entitled to pursue the Indemnifying Party for breach of its obligations under this Section. 13. Compliance with Laws. NetSuite and NetFlex Partner mutually agree that it each Party will comply with all current federal, state or local laws, ordinances, regulations, rules, decisions, orders or requirements adopted from time to time applicable to the NetSuite Application, the Partner Application and/or the Certified Partner Application, any licenses granted to NetFlex Partner under this Agreement, or otherwise in connection with NetSuite s performance of its obligations under this Agreement. 14. Publicity and Advertising Press Release. Neither Party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written consent of the other Party, provided this section shall not in any way restrict either Party from complying with any law, regulation or other governmental demand or request for information. The parties contemplate that upon the execution of this Agreement they will mutually agree to the terms of a joint press release with quotes from high level executives from NetFlex Partner and NetSuite Non-Use of Name. Each Party agrees that it will not, without the prior written consent of the other in each instance: (a) use in advertising, publicity or otherwise the name of the other, or any affiliate or subsidiary NetFlex Partner Agreement

8 of the other, or any partner or employee of the other, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the other or its affiliates or subsidiaries, or (b) represent, directly or indirectly, that any product or any service provided by such party has been approved or endorsed by the other. 15. Miscellaneous Provisions of this Agreement Relationship of the Parties. The relationship of the Parties is not that of master and servant but of independent contractors. Neither Party shall be deemed to be the legal representative of the other. Each Party agrees to assume complete responsibility for its own employees with regard to federal or state employers liability, workers compensation, social security, unemployment insurance and Occupational Safety and Health Administration requirements, and other federal, state and local laws. Personnel contracted to NetFlex Partner by NetSuite, if any, shall not, in any event, be eligible for any employee benefits from NetFlex Partner as a result of their service. Benefits to NetSuite personnel, if any, shall be provided by NetSuite. NetFlex Partner will report to the Internal Revenue Service amounts paid to NetSuite consistent with this independent contractor relationship Entire Agreement. This Agreement and the attached exhibits constitute the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior negotiations, discussions, undertakings and agreements between the Parties Section Titles. Titles to the sections of this Agreement are solely for the convenience of the parties and do not explain, modify, interpret or expand the provisions herein No Third Party Beneficiary. NetFlex Partner and NetSuite hereby agree that the duties, obligations, and terms and conditions of this Agreement are provided for the sole benefit of the Parties hereto and are not rendered for the benefit of any Person other than the Parties, without the prior written consent of the other Party. The Parties do not wish to create any third party beneficiaries hereunder Amendment. The terms of this Agreement may be modified only in a writing signed by authorized representatives of NetFlex Partner and NetSuite. For avoidance of doubt, electronic communications, including , shall not constitute qualified writings under this Section, unless the Parties expressly so state in such No Construction Against the Drafter. The Parties agree that this Agreement is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement, shall not apply to the terms and conditions of this Agreement Severability. If any of the provisions of this Agreement are declared to be invalid, such provisions shall be severed from this Agreement and the other provisions hereof shall remain in full force and effect Non-Waiver. No term or provisions hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any Party to, or waiver of, a breach of the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach Survival. Sections 2.6, 2.7, 5, 11-13, and 15 of this Agreement shall survive expiration or termination of this Agreement Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assignees Assignment and Delegation. The Parties shall not assign or otherwise transfer its rights or interest in this Agreement without the other Parties written consent, except either Party may assign this Agreement to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or NetFlex Partner Agreement

9 substantially all of its assets without the other Party s consent, unless NetFlex Partner is assigning its rights or interest in this Agreement to a competitor of NetSuite, in which case, NetSuite may terminate this Agreement Force Majeure. Either Party shall be excused from failures or delays in delivery or performance hereunder if such failure or delay is attributable to causes beyond the reasonable control of the Party, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities or criminal acts of third parties, which makes such performance or delivery commercially impractical. In the event of any such delay, the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the parties hereto). In no event, however, will either Party be excused from a delay of more than thirty (30) days in the time schedules set forth herein. In the event of a delay in delivery beyond such 30-day period, either Party may terminate this Agreement with no penalty and with full refund of any amount previously paid for the portion terminated, and no further obligations shall remain on the part of either party thereunder Business Continuity. In the event that either Party files for bankruptcy, corporate dissolution, engages in an assignment for the benefit of creditors ( Insolvent Party ), within three (3) business days thereafter, the Insolvent Party will provide or will cause to be provided to the other Party a copy of the executable software necessary for any End User s use of the Insolvent Party s application, and the Insolvent Party grants the other Party a perpetual, royalty-fee, non-transferable license to use the Insolvent Party s application in conjunction with the other Party s application as contemplated by this Agreement. In addition, the licenses granted in this Agreement shall be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the Code") or any successor provision(s) thereof, a license of rights to intellectual property as defined under the Code. Each Party agrees to provide the other Party at least 120 days advance written notice of its decision to cease supporting or operating the its application because of merger, acquisition or change in business direction Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California (regardless of the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect and performance. The Parties hereby consent to the exclusive jurisdiction of the state court located in Santa Clara County, and waive any contention that any such court is an improper venue for enforcement of this Agreement Modification Of Agreement. NetSuite reserves the right to modify the terms and conditions of this Agreement without prior notice, and such modifications shall become effective upon posting of the modified Agreement on NetSuite s portal or upon notice to NetFlex Partner, whichever comes first. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON CLICKING I AGREE ON BEHALF OF NETFLEX PARTNER HAS BEEN AUTHORIZED TO DO SO. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES. NetFlex Partner Agreement

10 ATTACHMENT A DEFINITIONS Agreement has the meaning set forth in the preface to the Agreement. Authorized Agent shall mean any and all subcontractors hired by NetFlex Partner to integrate the Partner Application using WebServices protocols with the NetSuite Application and who are subject to covenants of confidentiality at least as restrictive as those contained in this Agreement. CNAP shall mean a NetSuite Partner who has received NetSuite certification as defined in Section 7 of this Agreement. Certified Partner Application shall mean the Partner Application that has been certified by NetSuite. Certification Standards shall be those terms and conditions posted at the NetFlex portal, located at Certification Date shall mean the date the NetSuite certifies the Certified Partner Application. Confidential Information has the meaning set forth in Section 5 of this Agreement. Customer means an End-User of the Certified Partner Application that has entered into a subscription agreement with NetSuite and/or NetFlex Partner. Data means any information of a NetFlex Partner and/or Customer that is transmitted through the Certified Partner Application and/or the NetSuite Application including, but not limited to, financial statements, reports, cost and expense data, management techniques, trade secrets, know-how, designs, plans, production processes, product samples, specifications, customer data, employee information, compensation and benefits. Documentation means all instructions and other similar material made available by a Party on its web site to describe the functionality or assist end-users in the use of such Party s web-based application. Effective Date has the meaning set forth in Section 2 of this Agreement. Electronic Communications means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or party electronically. End User shall mean NetFlex Partner has the meaning set forth in the preface to this Agreement. Indemnified Party has the meaning set forth in Section12 of this Agreement. Marks shall mean the service marks, trade marks, trade names, logos, and trade dress of a Party. NetFlex Partner has the meaning set forth in the preface to this Agreement. NetSuite has the meaning set forth in the preface of this Agreement. NetSuite Application has the meaning set forth in the preface to this Agreement. NetSuite Documentation shall mean any and all User Guides, Getting Started Guides, NetSuite Web Services Platform Guide, NetSuite Web Services Record Guide, MS.NET Sample Application, Java Sample Application. WSDL and/or any other documentation provided by NetSuite to NetFlex Partner. NetFlex Partner Agreement

11 Partner Application shall mean the software or other application which is developed by NetFlex Partner for integration with the NetSuite Application, and which is owned and operated by the NetFlex Partner. Party or Parties shall mean NetSuite and/or NetFlex Partner. Person means an individual, a proprietorship, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any other business enterprise. Renewal Term shall mean the one year period following the Certification Date. Renewed Certification shall mean the certification standards NetSuite requires NetFlex Partner to meet to maintain certification status during each Renewal Term. Trademarks has the meaning set forth in Section 2.4 of this Agreement. Trademark Licensee has the meaning set forth in Section 2.4 of this Agreement. Trademark Licensor has the meaning set forth in Section 2.4 of this Agreement. NetFlex Partner Agreement