Check Hyperlinks in Your Oracle/NetSuite Contracts – Contracts and Commercial Law
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If you are considering entering into an agreement for Oracle/NetSuite (“NetSuite”) Enterprise Resource Planning (“ERP”) software and/or professional services, it is important that you verify, download, store and read all web pages referenced in the estimate. , Ordering Document, Statement of Work and any other documents provided by NetSuite. NetSuite is probably betting that you will not read or negotiate any of the terms contained in this embedded document. And, as shown below, you definitely want to!
Even if they are often not in blue type or underlined, certain web addresses referenced in the contractual documents may be hyperlinks. We advise you to click on all the addresses. If it is indeed a hyperlink, be sure to record the external page it links to as this material may not be readily available in the future. The same applies to other referenced web addresses. This material is usually incorporated into the contractual documents and thus forms part of the agreement with NetSuite. Additionally, you should verify that the date of the referenced material matches what is stated in your contract document(s). That is, if the draft agreement your company received from NetSuite states that it is governed by Subscription Services Agreement v020121, but the link directs you to a Subscription Service Agreement (“SSA”) with a different release date, you’ll either want to get a copy of the release with a matching date to review, or have NetSuite correct the contract documents.
We also cannot stress enough the importance of reading what is contained in the material referenced on the NetSuite website before signing on the dotted line, as the terms are likely one-sided. As of the date of writing this blog post, the NetSuite website states that “[i]If your order is placed on or after July 20, 2022 and references the Subscription Services Agreement available at https://www.oracle.com/corporate/contracts/cloud-services/netsuite/, then the version of the June 1, 2022 of the Subscription Services Agreement applies to this order.” This version of the SSA contains additional hyperlinks (all of which should also be downloaded and reviewed) and, by way of limited example, provides:
- 9.2. ORACLE DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT ORACLE WILL CORRECT ALL ERRORS IN THE SERVICE, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. ORACLE IS NOT RESPONSIBLE FOR ANY PROBLEMS WITH THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES ARISING FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.
- 10.1. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOST INCOME, PROFITS (EXCLUDING COSTS UNDER THIS AGREEMENT), SALES, DATA, DATA USAGE, GOODWILL, OR REPUTATION.
- 10.2 IN NO EVENT SHALL ORACLE AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ESTIMATE/ORDER FORM, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER CUSTOMER OR SOW’S ESTIMATE/ORDER FORM FOR SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
These and other terms can be important for your business decision-making process, as well as later if something goes wrong.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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