This Software Subscription Agreement (the “Agreement”) governs the use of the smart.network service accessed through the dashboard and subscriber application (“Service”) provided by Personal Network Computing, Inc., a California corporation (“Company”). An individual or legal entity using Service under this agreement shall be referred to as “Client”.
A. Company develops and provides a network monitoring and management service (“Service”) which is accessed and used via an agent and/or network engineer application and/or via the web (“Agent App”) and an end-user software application (“Subscriber App”) collectively offered by the trade name of smart.network™.
B. Client is a network provider and/or internet service provider that intends to use the Service to amongst other things, view real-time network traffic, monitor, manage and update their network and their subscribers’ networks.
C. Client may desire to offer its subscribers access to the Service for the purpose of viewing subscribers’ individual network information, using the Subscriber App. Client will do so by creating individual accounts on the Service for its subscribers and providing them instructions and login credentials for the Subscriber App.
NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Article 1: Definitions
1. Confidential Information. “Confidential Information” means the confidential and/or proprietary information of Company (whether such information is or is not marked or identified as confidential or proprietary), including, but not limited to, all Software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, marketing, and financial plans and data. “Confidential Information” does not include information that Client can show through documentary evidence: (i) is or becomes publicly known through no fault, act or omission of Client; (ii) is known by or in the possession of Client prior to its receipt from Company; or (iii) is lawfully obtained from a third party who rightfully possesses the information (without confidentiality or proprietary restriction) and who did not receive it, directly or indirectly, from Company.
2. Intellectual Property Right. “Intellectual Property Rights” means all present and future Confidential Information, copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.
3. Subscription Fee. “Subscription Fee” means the fee to be paid by Client to Company as consideration for the Services and use of the Software granted under this Agreement. The Subscription Fee is set forth in Exhibit A, attached to this Agreement and incorporated by this reference.
5. Software. “Software” means the Agent App, the Subscriber App and any smart.network dashboard software intended for monitoring and managing customer or associated networks, provided by Company to Client pursuant to the terms hereof.
6. Subscriber. “Subscriber” means an individual or entity who is a customer of Client who downloads the Subscriber App via credentials provided to them by Client for personal and/or internal business use and not for resale or distribution.
7. Subscriber App. “Subscriber App” means the smart.network software application intended for management of an individual network, that may be provided by Company to Client, if enabled, and in turn that the Client may provide to its customers.
8. Agent App. “Agent App” means the smart.network software application intended for theClient to access the Services.
10. Term. “Term” shall have the meaning set forth in Section 7.
Article 2: Subscription
1. Subscription. Subject to the terms and conditions of this Agreement, Company hereby grants Client the following privileges:
a) To access Company’s Software and run it on a web browser or on a compatible device;
b) To create accounts for Subscribers using Company’s Software if enabled;
c) To provide Subscribers credentials to login to the Subscriber App if enabled;
d) Use the Software internally solely for the purpose of monitoring and managing Client’s customers or networks associated with the Client, providing customer support services, demonstrations and marketing purposes.
2. Restrictions on Use. Client shall not, and shall ensure that any other third party shall not:
a) copy, reproduce, distribute or otherwise make available the Software or any portion or element thereof except as and to the extent expressly authorized herein and by Company;
b) translate, adapt, enhance, create derivative works of, or otherwise modify the Software or any portion or element thereof;
c) decompile, disassemble or reverse engineer (except as and to the extent permitted by applicable local law), or extract ideas, algorithms, procedures, workflows, or hierarchies from, the Software or any portion or element thereof;
d) reproduce or use in any manner (except solely as and to the extent expressly authorized under Section 2.1 above), or remove, destroy, obscure or alter any Company Trademarks (as defined in Section 6.1) or any related materials placed on or contained within the Software or any portion or element thereof.
3. Restrictions. The Software may only be shared, used or distributed under this Agreement as expressly provided in this Agreement. Notwithstanding anything to the contrary, the Agent App is restricted to the Client and its employee’s use and the Subscriber App is limited to Client’s Subscribers. In addition to Section 2.2, all rights not granted to Client under this Agreement will remain with Company.
Article 3: Subscription Fees
1. Subscription Fees. In consideration for the Services granted to Client under this Agreement, Client shall pay Company the Subscription Fee and such other fees, as set forth on the Subscription Fee Schedule, attached as Exhibit A to this Agreement. All amounts not paid within ten (10) days of the date on which payment is due shall bear interest at the lesser of ten percent (10%) per annum or the highest amount allowed by law.
Article 4: Company’s Obligations
1. Access to Software. Upon execution of this Agreement, Company will provide the login credentials for the Agent App and make the Agent App and the Subscriber App available to Client.
2. Support and Maintenance. Within the first ninety days of this Agreement, Company shall provide Client with its standard technical support in connection with Client’s initial setup and use of the Software. Company shall provide Client with all modifications, bug fixes, and updates for the Software. Company has no obligation to provide Client with subsequent product releases. Any additional support and maintenance will be provided by Company to Client at Company’s then prevailing rates and fees. The smart.network forum offers free community support and can be accessed from the support link in the Software or at forum.smart.network. The Company does not provide support or maintenance to the Subscribers.
3. Programming Errors. If during the first year of this Agreement, Client notifies Company of a substantial program error respecting the Software, or Company has reason to believe that error exists in the Software and so notifies Client, Company shall at its expense verify and attempt to correct such error within a reasonable amount of time after the date of notification. If Client is not satisfied with the correction, then Client may terminate this Agreement, but without refund of any amount paid to Company or release of any amounts due Company at the time of termination.
Article 5: Client Obligations
2. Pricing Policies. Client is free to determine its own pricing policies for the Subscriber App so long as such policies (a) are commercially reasonable, and (b) do not violate the terms or conditions of this Agreement or applicable laws, rules and regulations.
3. Promotion and Non-Disparagement. During the Term, Client shall use its best efforts to promote the Services to Subscribers and potential Subscribers. Such promotion shall be conducted in a manner that reflects favorably upon the Company and is in compliance with all applicable laws and regulations. During and after the Term, Client shall act in good faith in its communications with Subscribers and potential Subscribers regarding Company and/or the Services and shall refrain from making any statements or references, either directly or indirectly, that disparage, depreciate, ridicule, deprecate, condemn, criticize, or malign the Service or any product or service of Company. Client agrees to cooperate and assist Company in bringing any action against any Subscriber for any activity in violation of the Subscriber Terms.
4. Equipment. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, WiFi routers or gateways that are designed or customized to work with the Services (collectively, the “Equipment ”).
5. Security. Client is responsible for maintaining the security of the Equipment, the Agent App, Client passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Agent App or the Equipment with or without Client’s knowledge or consent.
Article 6: Confidential Information; Privacy; Trademarks
1. Intellectual Property Ownership. Company shall own all right, title and interest, including all Intellectual Property Rights, in and to the Service, the Software, and the Confidential Information (“Company Items”). All rights in and to the Company Items not expressly granted to Client under this Agreement are reserved by Company. Client shall take all reasonable measures to protect Company’s Intellectual Property Rights in the Company Items. Client may not do or cause to be done any act or thing challenging, contesting, impairing, invalidating, or tending to impair or invalidate any of Company’s rights in the Intellectual Property.
2. Trade Secrets. Client agrees that the Software and all associated trade secrets, including but not limited to the Software, its configurations, architecture, communications and performance benchmarks, are the exclusive property of the Company. Except as authorized pursuant to this Agreement, Client agrees not to disclose, disseminate, transmit via any medium whatsoever, or make available the Software or any associated trade secrets to any third party without Company’s prior written consent.
3. Injunction; Damages. Client recognizes and acknowledges that irreparable injury or damage will result in the event the Intellectual Property is made public or in the event of a breach, or threatened breach of this Agreement, including, without limitation, Article 6. Client therefore agrees that Company will be entitled to an injunction restraining Client and its respective affiliates, advisors, employees, attorneys and agents from engaging in any activity constituting such breach of threatened breach of this Agreement, including, without limitation, Article 6. Nothing herein will be construed as prohibiting Company from pursuing any other remedies available at law or in equity for such breach or threatened breach, including, but not limited to, the recovery of damages.
5. Improvements. Company shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any Software, applications, inventions or other technology developed in connection support, and (c) all intellectual property rights related to any of the foregoing. To the extent Client provides suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Services, (i) Company will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, (ii) Company will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit the Feedback in connection with its products and services, and (iii) Company will solely own any inventions, improvements, technology, software, applications, and developments arising therefrom, and all intellectual property rights relating thereto.
6. Trademark License. Subject to the terms and conditions of this Agreement, Company hereby grants to Client a non-exclusive, non-transferable, revocable license, without the right to sublicense, to use and display Company’s trademarks, service marks, and logos (“CompanyTrademarks”), solely for purposes of promoting the Services to Subscribers during the Term asset forth above. All rights of Company in and to such Company Trademarks not expressly granted under this Section 6.1 are reserved by Company. Client agrees that all use of the Company Trademarks, and all goodwill arising out of such use, shall inure to the sole benefit ofCompany. Company will have the right to monitor Client’s use of the Company Trademarks. From time to time and upon Company’s request, Client shall promptly submit to Company samples of all materials bearing the Company Trademarks, including, without limitation, any advertising, webpages, packaging or other materials. In the event of any improper use of the Company Trademarks, Company shall have the right to deliver written notice describing the improper use to Client, and Client shall immediately remedy such improper use. If Client fails to immediately remedy such improper use, Company shall have the right to terminate this Agreement or the trademark license contained in this Section 6.1 by providing written notice of such termination to Client.
7. Restrictions on Use. Except as permitted in this Agreement, Client agrees that it will not adopt or use any corporate name, trade name, trademark, service mark, certification mark, any of the Company Trademarks or any other designation confusingly similar to any Company Trademarks. Client agrees that it will comply with all applicable laws and regulations pertaining to the proper use and designation of the Company Trademarks in a particular country. Client shall not make any use of the Company Trademarks which will tarnish, blur, or dilute the quality associated with the Company Trademarks or the associated goodwill. Client will not register any of the Company Trademarks or any word or combination of words containing “smartnetwork”, “smart bridge”, “smart cloud”, “smart server”, “smart router”, “smart mesh”, or any confusingly similar designation anywhere in the world.
8. Notice of Infringement. Client agrees to notify Company of any unauthorized use of: (i) any of the Company Trademarks, or (ii) other trademarks or service marks by third parties based on any of the Company Trademarks or that are confusingly similar to any of the Company Trademarks. Company will have the sole right and discretion to bring, prosecute and settle infringement, unfair competition, and similar proceedings based on the Company Trademarks.
Article 7: Term
1. Term. The Term of this Agreement will commence on the Effective Date and will continue on a month-to-month basis unless either party notifies the other in writing of its intention not to renew the Term at least thirty (30) days prior to the expiration of the then-current Term.
2. Rights on Termination. Company has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Software. On termination all rights granted to Client under this Agreement cease and all Subscriber accounts will be deactivated. Upon Termination, Company shall have no new or remaining obligations with respect to Client or its Subscribers relating to the Services or Equipment or any computer hardware on which the Services operated, including, but not limited to removal, disposal, maintenance or support. Upon Termination, the Parties shall use good faith efforts to coordinate communications with Subscribers regarding the termination of the Services. Articles 8, 9, 10 and 11 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
3. No Liability for Termination. Except as expressly required by law, in the event of termination of this Agreement by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of Company or Client. Termination shall not, however, relieve either party of obligations incurred prior to termination.
Article 8: Company’s Representations and Warranties
1. Company’s Representations and Warranties. Company hereby represents and warrants to Client that Company is the owner of the Software and has the right to enter into this Agreement with Client.
2. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 8.1, ABOVE, ARE INLIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FORA PARTICULAR PURPOSE.
3. Limitation of Liability. COMPANY IS NOT LIABLE, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF DATA, LOSS OF PERFORMANCE, LOST REVENUE, LOST PROSPECTIVE ECONOMIC ADVANTAGE OR LOST PROFIT ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, IRRESPECTIVE OF WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED TWENTY PERCENT OF THE AMOUNTS ACTUALLY PAID BY CLIENT TO COMPANY UNDER THIS AGREEMENT FOR THE PRECEDING TWELVE MONTHS.
Article 9: Client’s Representations
1. Client’s Representations and Warranties. Client represents and warrants to the Company that it will not use, or allow anyone to use of the Software in any way which violates any laws, rules or regulations applicable to Client.
2. Indemnity. Client shall defend, indemnify and hold Company and its affiliates, successors, assigns, officers, directors, shareholders, and employees (“Indemnified Parties”) harmless from and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including reasonable attorney’s fees and expenses regardless of whether litigation was commenced) arising from or relating Client’s breach of this Agreement.
Article 10: Confidential Information
Client shall protect the Confidential Information from unauthorized dissemination and shall use the same degree of care that Client uses to protect its own like information, but in no event less than a reasonable degree of care. Client shall not disclose to third parties the Confidential Information without the prior written consent of Company. Client shall use the Confidential Information only for purposes of performing its obligations or exercising its rights under this Agreement. Notwithstanding the foregoing, Client may use or disclose the Confidential Information to the extent Client is legally compelled to do so, provided, however, prior to any such compelled disclosure, Client notifies Company and fully cooperates with Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. Client agrees that any breach of this Section 10 would cause irreparable harm to Company for which monetary damages would not be adequate and, therefore, Client agrees that, in the event of a breach of this Section 10, Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
Article 11: Export Controls and Restricted Rights
1. Export Controls. The Software and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Client shall not export the Software or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Client represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls.
2. Restricted Rights. The Software are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software—Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
Section 12: Additional Terms and Conditions
1. Cooperation. Company and Client agree to execute and deliver any additional documents and instruments and to perform any additional acts that may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated hereby.
2. Arbitration. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY CONTROVERSY OR DISPUTE ARISING OUT OF THIS AGREEMENT, THE INTERPRETATION OF ANY OF THE PROVISIONS HEREOF, OR THE ACTION OR INACTION OF ANY PARTY HEREUNDER SHALL BE SUBMITTED TO ARBITRATION IN SAN FRANCISCO, CALIFORNIA BEFORE THE AMERICAN ARBITRATION ASSOCIATION UNDER THE COMMERCIAL ARBITRATION RULES THEN IN EFFECT. CLIENT IRREVOCABLY AGREES TO VENUE IN SAN FRANCISCO, CALIFORNIA BEFORE THE AMERICAN ARBITRATION ASSOCIATION. ANY AWARD OR DECISION OBTAINED FROM ANY SUCH ARBITRATION PROCEEDING SHALL BE FINAL AND BINDING ON THE PARTIES, AND JUDGMENT UPON ANY AWARD THUS OBTAINED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. EXCEPT FOR AN INJUNCTION, AS PROVIDED IN ARTICLE6, 3 AND ARTICLE 9, NO ACTION AT LAW OR IN EQUITY BASED UPON ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE INSTITUTED INANY COURT BY ANY MEMBER EXCEPT (A) AN ACTION TO COMPEL MEDIATION OR ARBITRATION PURSUANT TO THIS SECTION; OR (B) AN ACTION TO ENFORCE AN AWARD OBTAINED IN AN ARBITRATION PROCEEDING IN ACCORDANCE WITH THIS SECTION. “NOTICE”: BY EXECUTING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION, YOU MAY BE COMPELLED TO ARBITRATE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. ALL PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES TO NEUTRAL ARBITRATION.
3. Attorneys’ Fees. In the event that any dispute between or among the parties to this Agreement should result in litigation or arbitration, the prevailing party in the dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without limitation reasonable attorneys’ fees, expert fees and expenses.
4. Service of Process. Client waives any right to personal service of process under international law, national law and state or local law, and instead irrevocably agrees to accept service of process by mail, return receipt requested, at the address provided on the signature page.
5. Limitations Period. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than one year after the action accrues.
6. Assignment. The Services granted herein is personal to Client and may not be transferred, assigned or sub-licensed by Client in whole or in part to any other person without the prior written consent of Company, which consent may be withheld in Company’s sole and absolute discretion. This Agreement may be assigned by the Company to any person or entity whatsoever.
7. Authority. Each party represents and warrants to the other that (i) it has full right, power and authority to execute this Agreement and any other documents required or contemplated by this Agreement; and (ii) the execution and performance of this Agreement will not violate any laws, ordinances, covenants, or the provisions of any other agreement binding on such party.
8. Third Party Beneficiaries. Nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any persons or entities other than the contracting parties and their respective successors and assigns.
9. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns.
10.No Partnership or Agency. Company is not an agent, shareholder, partner, independent contractor or employee of Client. Neither party has any authority to bind or attempt to bind the other party in any manner, or to assume or incur any obligation or responsibility (express or implied) for or on behalf of or in the name of the other party. This Agreement will not be construed so as to constitute the Company as a partner, joint venture, shareholder agent, employee, independent contractor or representative of Client for any purpose whatsoever.
11.Complete Agreement. This Agreement constitutes the complete and exclusive statement of agreement among the parties with respect to the subject matter herein and replaces and supersedes all prior written and oral agreements or statements by and among the parties. No representation, statement, condition or warranty not contained in this Agreement will be binding on the parties or have any force or effect whatsoever.
12. Amendments; Modifications. Any and all amendments or modifications to this Agreement will be in writing and signed by all parties. Any other attempted amendment or modification will be void.
13. Waiver. All waivers must be in writing and signed by the waiving party. Company’s failure to enforce any provision of this Agreement will not be a waiver and will not prevent Company from enforcing that provision or any other provision of this Agreement in the future.
14. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California without regard for conflicts of law rules.
15. Interpretation. This Agreement will not be construed for nor against any party, and no presumption or burden of proof or persuasion shall be implied by virtue of the fact this Agreement was prepared by or at the request of any party.
16. Severability. If any provision of this Agreement or the application of any provision to any person or circumstance shall be held invalid, the remainder of this Agreement or the application of the provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.
17. Multiple Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
18. Time is of the Essence. All dates and times in this Agreement are of the essence.