Terms of Use

This Smart.Network Terms of Use is an agreement between You and Personal Network Computing, Inc., or its affiliates (“PNC”) and governs your Use of the smart.network™ service.

NOTICE​: BY CLICKING THE "I AGREE" BUTTON, DOWNLOADING OR USING THE SMART.NETWORK™ SERVICE, INCLUDING ALL ASSOCIATED FEATURES AND FUNCTIONALITIES, USER INTERFACES AND SOFTWARE APPLICATIONS, YOU CERTIFY THAT YOU HAVE CAREFULLY READ THIS AGREEMENT AND AGREE TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE "I AGREE" BUTTON AND DO NOT DOWNLOAD OR USE THE SMART.NETWORK™ SERVICE.

1. Definitions.

a. “You” and “Your” means the individual, an individual you assign (in your household or part of the network you are monitoring), or legal entity using the Service under these Terms of Use.

b. “Use” or “Using” means to sign up for, download, install, activate, access or otherwise use the Service.

c. “Service” means the smart.network™ service, and any Upgrades made available to You by an Approved Provider and PNC, including all associated features and functionalities, user interfaces, and software applications. The smart.network™ service allows You and other end-users of the Service to, amongst other things, view real-time bandwidth traffic visibility and to then adjust traffic on a per-user, per-device and per-service basis.

d. “Documentation” is the PNC user or technical manuals, training materials, specifications or other documentation applicable to the Service and made available to You by an Approved Provider.

e. “Approved Provider” means (i) PNC or (ii) the PNC authorized service provider to whom you are a subscriber and from whom you acquired access to smart.network.

f. “Intellectual Property Rights” means all Confidential Information, copyrights, trademarks, trade secrets, patents, mask works, and all related, similar, or other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto.

g.“Confidential Information” means the confidential and/or proprietary information of PNC (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 You can show through documentary evidence: (i) is or becomes publicly known through no fault, act or omission of You; (ii) is known by or in the possession of You prior to its receipt from PNC; 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 PNC.

h. “Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Service and backup copies thereof.

2. Acceptance of Terms.

This agreement, any supplemental terms and any specific product terms found at www.smart.network (collectively, the smart.network™ “Terms of Use”) govern Your Use of the Service.

By Using the Service, You agree to be bound by these Terms of Use. If you are entering into these Terms of Use on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to these Terms of Use, neither you nor the entity may Use the Service.

3. Use.

Subject to payment of the applicable fees and compliance with these Terms of Use, PNC grants You limited, revocable, non-exclusive, non-transferable, access to download, install and Use the Service solely for your personal, non-commercial purposes strictly in accordance with these Terms of Use.

Your right to Use the Service begins on the date that you download the Service and create an account or login with credentials provided to you by an Approved Provider and continues until You or an Approved Provider terminates the Service, in accordance with this Agreement.

4. Ownership.

The Service, including, without limitation, its object code and source code, whether or not provided to You, is strictly confidential to PNC. PNC owns exclusively and reserves all – and You may not exercise any – right, title, and interest in and to the Service, including, without limitation, all Intellectual Property Rights in and to the Service, except to the extent of the limited rights granted to You in this Agreement. No other rights with respect to the Service or any related Intellectual Property Rights are granted or implied.

This Agreement is not an agreement of sale, and no title, Intellectual Property Rights, or ownership rights to the Service are transferred to You pursuant to this Terms of Use. You acknowledge and agree that the Service and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Service, all future Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Service, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of PNC, having great commercial value to PNC.

5. Confidential Information.

You shall protect the Confidential Information from unauthorized dissemination. You shall not disclose to third parties the Confidential Information without the prior written consent of PNC. You agree that any breach of this Section would cause irreparable harm to PNC for which monetary damages would not be adequate and, therefore, You agree that, in the event of a breach of this Section, PNC shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

6. Prohibited Uses.

You are responsible for compliance with any and all governmental laws, rules and regulation. In addition, You will not and will not allow a third party to:

a. Use the Service for any purpose that is unlawful, abusive, intrusive on another’s privacy, harassing, defamatory or in any other way that would violate any applicable governmental law;

b. Transfer or assign Your rights under these Terms of Use to any other person or entity, unless expressly authorized by PNC in writing;

c. License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Service or make the Service available to any third party;

d. Modify, adapt or create derivative works of the Service or Documentation;

e. Reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the smart.network™ software application;

f. Make the functionality of the Service available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis unless expressly authorized by PNC in writing;

g. Use the Service to: (i) develop inventions directly derived from confidential information to seek patent protection; (ii) assist in the analysis of Your patents and patent applications; or (iii) modify existing patents;

h. Remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Service.

7. Additional Restrictions and Limitations.

You are solely liable for the malfunction or failure of any device used in connection with the Service.

8. Service Limitations.

You understand and agree that PNC or an Approved Provider does not and cannot guarantee that the Service will be continuous or error-free and you expressly assume all such risks. The Service can be interrupted for any reason that disrupts internet access including, without limitation: (a) Electrical power outages; (b) Natural disasters; (c) Electronic interference; (d) An outage affecting the data transport service; (e) Failure of originating or terminating access lines; (f) Compatibility issues; and (g) Equipment failures relating to Your devices (e.g.,Your mobile phone) or PNC or an Approved Provider’s equipment, including, hardware or software failures or misconfiguration affecting PNC or itsApproved Provider and/or any of its data centers.

The Service operates over the public internet, and as such, PNC cannot guarantee connectivity and performance of the Service. To work, Your router must be reachable by the smart.network™ platform, either on the network provider’s local area network or the publicInternet. The Service currently runs on iOS devices, and a beta version is available on Android devices. PNC reserves the right to limit the number of broadband speed tests performed by You if PNC determines, in its sole discretion, that You are abusing the bandwidth.

9. Third-Party Use of Service.

You may permit a third party to Use the Service under these Terms of Use if such Use is solely (i) on Your behalf, (ii) for Your internal operations, and (iii) in compliance with these Terms of Use. You agree that you are liable for any breach of these Terms of Use by that third party.

10. Access.

You acknowledge and agree that if an account is created through PNC or an Approved Provider, such agent will have access to Your Service and account for the purposes of establishing the account and upgrading it from time to time.

11. Limited Warranty and Disclaimer.

a. Limited Warranty.

PNC warrants that the Service will substantially conform to the applicable Documentation for ninety (90) days following the date the Service is made available to You for your Use. This warranty does not apply if the smart.network™ software application, PNC product or any other equipment upon which the Service is authorized to be used: (i) has been altered, except by PNC or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by PNC, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (iv) has not been provided by an Approved Provider. PNC will use commercially reasonable efforts to deliver to You the Service free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the Service or Your data.

b. Exclusive Remedy.

At PNC’s option and expense, PNC shall repair, replace, or cause the refund of the usage fees paid for the non-conforming Service. This remedy is conditioned on You reporting the non-conformance in writing to Your Approved Provider within the warranty period. The Approved Provider may ask You to discontinue Use of the Service and delete the smart.network™ software application from your device as a condition of this remedy. This Section is Your exclusive remedy under the warranty.

c. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH ABOVE, PNC AND ITS LICENSORS PROVIDE SERVICE “AS IS” AND EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES, CONDITIONS OR OTHER TERMS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT. PNC DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. IN ADDITION, PNC DOES NOT WARRANT THAT THE SERVICE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SERVICE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.

12. Limitations and Exclusions of Liability.

Your sole right and remedy for breach of this Terms of Use is to terminate this Terms of Use. Notwithstanding the foregoing, PNC’s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to PNC’s performance or nonperformance hereunder or (iii) any act or omission in connection with the subject matter hereof shall in no event exceed fees and charges with respect to the affected time period.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL PNC OR ITS LICENSORS BE LIABLE FOR THE FOLLOWING, REGARDLESS OFTHE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) LOSS OR CORRUPTION OF DATA OR INTERRUPTED OR LOSS OF BUSINESS; OR (C) LOSS OF REVENUE, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS. ALL LIABILITY OFPNC, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO YOU, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE USAGE FEES PAID BY YOU TO ANY APPROVED PROVIDER FOR THE SERVICE THAT GAVE RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY FOR SERVICE IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

13. Indemnification.

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD PNC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS HARMLESS FROM ANY AND ALL FIRST AND THIRD-PARTY CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,REASONABLE ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICE, RELATING TO OR ARISING OUT OF THE SERVICE OR THE USE OF THE SERVICE. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

YOU AGREE THAT PNC IS NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CLAIMS AGAINST US THAT ARISE FROM YOUR USE OF THE SERVICE. FURTHER, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS' FEES, UNLESS SUCH CLAIMS ARE BASED ON OUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. THIS PROVISION WILL CONTINUE TO APPLY AFTER THE AGREEMENT ENDS.

14. Waiver of Class Action.

You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding.

15. Governing Law, Jurisdiction and Venue.

These Terms of Use will be governed by the laws of the State of California without regard to conflict of law rules. In the event of litigation between PNC and You, You agree to the exclusive jurisdiction of the Superior Court of California, County of Solano or the Federal District Court, Northern District of California. You acknowledge that Your breach of these Terms of Use may cause irreparable damage and agree that PNC shall be entitled to seek injunctive relief under these Terms of Use, as well as such further relief as may be granted by a court of competent jurisdiction.

The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. In addition, no person who is not a party to the Terms of Use shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999.

16. Attorneys’ Fees.

In the event that any dispute between or among the parties to these Terms of Use 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.

17. Limitations Period.

No action arising out of or in connection with these Terms of Use or the transactions contemplated by the Terms of Use may be brought by either party against the other more than one year after the action accrues.

18. Upgrades.

Notwithstanding any other provision of this Terms of Use, You are not permitted to Use Upgrades unless You, at the time of acquiring such Upgrade: (i) already hold a valid right to use the original version of the Service, are in compliance with the Terms of Use, and have paid the applicable fee for the Upgrade; and (ii) limit Your Use of Upgrades or copies to Use on devices You own or lease.

19. Audit.

During the term of these Terms of Use and for a period of one year thereafter, PNC may, during normal business hours and upon reasonable prior notice to You, inspect Your devices, computer processors, equipment and facilities to verify Your compliance with these Terms of Use.

20. Term and Termination.

These Terms of Use shall remain effective until terminated or until the expiration of the applicable usage term or subscription term. This Agreement will terminate immediately, without prior notice from PNC in the event that you fail to comply with any provision of this Agreement or You fail to pay any portion of the applicable usage fees and You fail to cure that payment breach within thirty days of the due date. You may also terminate this Agreement at any time by contacting your Approved Provider to request that your account be deleted. Upon termination of this Agreement, you shall cease all use of the Service and delete all copies of the smart.network™ software application from your mobile device or from your desktop.

21. Transferability.

You may not transfer the Service or any rights or obligations under these Terms of Use to any third party without PNC’s prior written consent. Any attempted transfer or assignment not in compliance with the foregoing shall be void and of no effect. PNC may transfer these Terms of Use in the event of a sale or transfer by PNC of all or substantially all of its assets or voting securities.

22. US Government End Users.

The Service and Documentation are "commercial items," as defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer Application" and "commercial computer Application documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Application) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which these Terms of Use may be incorporated, Government end users will acquire the Service and Documentation with only those rights set forth in these Terms of Use. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S.Government.

23. Export Restrictions.

PNC Service, products, and technology are subject to local and extraterritorial export control laws and regulations. You and PNC each will comply with such laws and regulations governing use, export, re-export, and transfer of Service, products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses. You agree not to use or make available the Service to or on behalf of any person that isa citizen, national, or resident of, or that is controlled by the government of the countries with which the U.S. may prohibit export transactions. For the most current Country Group listings, or for additional information about the EAR or Your obligations under those regulations, please refer to the U.S. Bureau of Industry and Security's website at http://www.bis.doc.gov/.

24. Assignment.

The terms of use granted herein is personal to You and may not be transferred by You in whole or in part to any other person without the prior written consent of PNC, which consent may be withheld in PNC’s sole and absolute discretion. These Terms of Use may be assigned by PNC to any person or entity whatsoever.

25. Third-Party Beneficiaries.

Nothing in these Terms of Use shall confer any rights or remedies under or by reason of these Terms of Use on any persons or entities other than the contracting parties and their respective successors and assigns.

26. Successors and Assigns.

These Terms of Use will be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns.

27. Integration.

If any portion of this Terms of Use is found to be void or unenforceable, the remaining provisions of the Terms of Use shall remain in full force and effect. Except as expressly stated or as smart.network™ expressly amended in a signed agreement, the Terms of Use constitutes the entire agreement between the parties with respect to the use of the Service.

28. Modification.

PNC reserves the right, at its sole discretion, to modify or replace these Terms of Use at any time. If a revision is material we will provide at least thirty days' notice prior to any new terms taking effect. The most current version of this agreement is made available here on  www.smart.network​. What constitutes a material change will be determined in PNC’s sole discretion.

29. Acceptance.

BY TAKING THE AFFIRMATIVE ACT OF CLICKING ON ANY ACCEPTANCE BUTTON OR BY DOWNLOADING THE SERVICE YOU SHALL BE DEEMED TO HAVE SIGNED THESE TERMS OF USE TO THE SAME EXTENT AS IF YOUR WRITTEN SIGNATURE WAS CONTAINED HEREON.