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.
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.
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.
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.
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;
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 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.
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.
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.
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.
16. Attorneys’ Fees.
17. Limitations Period.
20. Term and Termination.
22. US Government End Users.
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/.
25. Third-Party Beneficiaries.
26. Successors and Assigns.