If you are considering entering into an agreement for Oracle/NetSuite ("NetSuite") Enterprise Resource Planning ("ERP") software and/or professional services, it is important to check, download, store and read all web pages referenced in the Estimate, Ordering Document, Statement of Work, and any other document provided by NetSuite.NetSuite is likely betting that you will not read or negotiate any of the terms contained in this incorporated material.And, as discussed below, you will definitely want to!
Even though often not in blue typeface or underlined, some of the web addresses referenced in the contract documents may be hyperlinks.We advise to click on all addresses.If it is indeed a hyperlink, make sure to save the external page that it links to as this material may not be readily available in the future.The same holds true for other referenced web addresses.This material is usually incorporated into the contract documents and thereby made part of the agreement with NetSuite.Also, 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 that your company has received from NetSuite says that it is governed by the Subscription Services Agreement v020121, but the link takes you to a Subscription Services Agreement ("SSA") with a different version date, you will want to either get a copy of the version with a matching date to review or ask NetSuite to correct the contract documents.
We also cannot emphasize enough the importance of reading what is contained in the referenced material on the NetSuite website before you sign 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]f 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 June 1, 2022 version of the Subscription Services Agreement applies to that order."That version of the SSA contains additional hyperlinks (all of which should also be downloaded and reviewed) and, as just a limited example, provides:
- 9.2. 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.
- 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 LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE, GOODWILL, OR REPUTATION.
- 10.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ORACLE AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER'S ESTIMATE/ORDER FORM, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER CUSTOMER'S ESTIMATE/ORDER FORM OR SOW FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
These terms and others may be important to your company's decision-making process, as well as down the road should something go awry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.