[*****] Indicates text has been omitted from this Exhibit pursuant to a confidential treatment request and has been filed separately with the Securities and Exchange Commission. NetSuite License Agreement
This License Agreement (" Agreement" ) is entered into as of the date set forth below between NetSuite Inc., a California corporation (" NetSuite" ), and SolarWinds.net, Inc. (" Customer" ). 1. Product . NetSuite will provide Customer with an online business application and any new features that augment or enhance the current business application (the " Service" ). NetSuite shall host the Service and may update the content, functionality, and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement. 2. License Grant . Subject to the terms and conditions of this Agreement, NetSuite grants Customer during the Term of this Agreement the non-exclusive, non-transferable (except in connection with an assignment under Section 12 herein) and terminable license to use the Service and to display content solely for Customer' s internal business operations, provided such operations shall not include service bureau use, outsourcing, renting, or time-sharing the Service. Customer acknowledges and agrees that the license granted herein is not a concurrent user license and that the rights granted to Customer are provided to Customer on the condition that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, 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 Service. Customer is expressly prohibited from sublicensing use of the Service to any third parties. Customer acknowledges and agrees that NetSuite shall own all rights, title and interest in and to all intellectual property rights in the Service. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by NetSuite.
3. License From Customer . Subject to the terms and conditions of this Agreement, Customer grants NetSuite the non-exclusive non-transferable (except in connection with an assignment under Section 12 herein) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data to the extent necessary to provide the Service to Customer. Customer agrees that the license to Customer Data shall survive the termination of this Agreement for one year, solely for the purpose of storing backup Customer Data at an offsite storage facility.
4. License Term, Fee and Payment . The initial term of this Agreement is for 12 months from 9/30/2006 (" Start Date" ) to 9/29/2007 (" End Date" ) (" Initial Term" which shall include extension thereof as provided by any subsequent agreement of the parties). Customer shall pay a total fee of $110,687.02 for the services listed on the attached Estimate Number 44765, which is hereby fully incorporated herein by reference. The fee is due as follows: Net 45 Days.
NetSuite Enterprise License Agreement
NetSuite License Agreement
4.1. Customer has an unconditional option for fourteen (14) days to cancel this Agreement in its entirety and forfeit the license granted herein, provided that Customer provides NetSuite with a written cancellation notice delivered to NetSuite within fourteen (14) days of the date of this Agreement, at which time all fees are cancelled with the exception of Professional Services already provided.
4.2. Customer has the option to extend the initial term of this Agreement for one (1) additional year at [*****] , and up to two (2) subsequent years at [*****] , and with other fees and services set at NetSuite' s current pricing at the time of renewal. 4.3. After the initial term and except as provided under the above noted renewal option, NetSuite reserves the right to change the amount of the fee for the Service to list prices generally applicable to other customers at the start of each Renewal Term. [*****] In the event that NetSuite incurs any costs (including reasonable attorney' s fees) for efforts in collecting overdue fees from Customer, Customer agrees to pay such costs. Customer further agrees to pay all foreign, federal, state, and local taxes, if applicable, to Customer' s access to, use, or receipt of the Service. 5. Terms of Service . Customer acknowledges and agrees to the following terms of service. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement.
5.1. Customer Must Have Internet Access . In order to use the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
5.2. Accuracy Of Customer' s Registration Information . Customer agrees to provide accurate, current and complete information (" Registration Data" ) about Customer as prompted by the registration form, which Customer will fill out online in order to gain access to the Service. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or NetSuite has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, NetSuite has the right to suspend Customer' s account.
5.3. Email And Notices . Customer agrees to provide NetSuite with Customer' s e-mail address, to promptly provide NetSuite with any changes to Customer' s e-mail address, and to accept emails (or other electronic communications) from NetSuite at the e-mail address Customer specifies. Customer further agrees that NetSuite may provide any and all notices, statements, and other communications to Customer through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. -2- NetSuite Enterprise License Agreement
NetSuite License Agreement
5.4. Passwords, Access, And Notification . Customer may designate up to the number of users under Customer' s account, which corresponds to the number of Seats purchased by Customer, and Customer may provide and assign unique passwords and user names to each authorized user for each Seat purchased. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer' s (including its employees' ) passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer' s account. NetSuite will act as though any Electronic Communications it receives under Customer' s passwords, user name, and/or account number will have been sent by Customer. Customer agrees to immediately notify NetSuite if Customer becomes aware of any loss or theft or unauthorized use of any of Customer' s passwords, user names, and/or account number. 5.5. Customer' s Lawful Conduct . The Service allows Customer to send Electronic Communications directly to NetSuite and to third-parties. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Customer will not send any Electronic Communications from the Service that is unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by NetSuite. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any third party other than an authorized user, including but not limited to, creating Internet Links to the Service which include log-in information, including but not limited to, user names, passwords, secure cookies, and/or " mirroring" or " framing" any part of the Service. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will not in any way express or imply that any opinions contained in Customer' s Electronic Communications are endorsed by NetSuite. Neither Customer, nor someone acting on Customer' s behalf, will use the Service to target for solicitation any NetSuite customers for purposes of providing any competitive product. Customer will ensure that any use of the Service by Customer' s employees (or users) is in accordance with the terms and conditions of this Agreement.
-3- NetSuite Enterprise License Agreement
NetSuite License Agreement
5.6. Third-Party Software . Customer agrees to use software produced by third parties, including, but not limited to, " browser" software that supports a data security protocol compatible with the protocol used by NetSuite. Until notified otherwise by NetSuite, Customer agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by NetSuite and to follow logon procedures for services that support such protocols. Customer acknowledges that NetSuite is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by NetSuite or telecommunications facilities, including, but not limited to, the Internet. 5.7. Transmission Of Data . Customer understands that the technical processing and transmission of Customer' s Electronic Communications is fundamentally necessary to Customer' s use of the Service. Customer expressly consents to NetSuite' s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer' s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by NetSuite. Customer acknowledges and understands that changes to Customer' s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that NetSuite is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by NetSuite.
5.8. Links . The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because NetSuite has no control over such sites and resources, Customer acknowledges and agrees that NetSuite is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. 5.9 NetSuite' s Support . NetSuite will make commercially reasonable efforts to promote Customer' s successful utilization of the Service, including but not limited to providing Customer with User Guides, Knowledge Base and online help, as well as optional and " for fee" training classes. NetSuite also offers Customer Support and Professional Services consultation. Customer acknowledges that NetSuite has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of NetSuite in these areas may substantially undermine Customer' s successful utilization of the Service.
5.10 Proprietary Rights . Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
-4- NetSuite Enterprise License Agreement
NetSuite License Agreement
5.11 Trademark Information . NetSuite99, the NetSuite logo99, NetCRM99, NetERP99, NetFlex, the NetCRM logo99, and other NetSuite Service marks, logos and product and service names are marks of NetSuite (the " NetSuite Marks" ). Customer agrees not to display or use the NetSuite Marks in any manner without the owner' s express prior written permission.
5.12. Confidential Information . For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (" Confidential Information" ). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by