HIGHWAY 9 END USER LICENSE AGREEMENT (EULA)/ TERMS & CONDITIONS OF SERVICE
1. DEFINITIONS
2. “Customer Data” means any data, information, text, graphics, or other materials, including without limitation the Personal Data (as defined below) provided by or collected from Customer or any End User in connection with the Services for processing on Customer’s behalf.
3. “Customer Personal Data” means the “personal data” or “personal information” (as defined under applicable data protection laws) included in the Customer Data that is processed by Highway 9 on Customer’s behalf in connection with its provision of the Products and Services.
4. “Documentation” means the installation and operating instructions, user manuals, help files, ‘README’ files, training materials, and all specifications and technical information and materials generally distributed by Highway 9 to its customers with respect to the use and operation of the Products.
5. “End Users” means Customer’s employees, contractors, guests, invitees, or anyone else to whom Customer authorizes access to the Access Points.
6. “Error” means a failure of the Product to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of, the Product, or a noticeable and repeating disruption in the Products performance.
7. “Firmware” means the software embedded in the Access Points and other software incorporated in the Hardware.
8. “Hardware” means the Mobile Edge Appliance, all Access Points, the Subscriber Identity Module and any other hardware device or component provided by Highway 9 (or a Highway 9 reseller) to Customer to be used in Customer’s environment.
9. “Hosted Services” means the Mobile Cloud Services and any other hosted software service provided by Highway 9 to Customer pursuant to an Order Form.
10. “Mobile Edge Appliance” means the hardware appliance on which the Mobile Edge Platform or the Carrier Extension Edge Platform would run.
11. “Mobile Edge Platform” means software provided by Highway 9 that can include a packet core, Neutral Host Network, integration into enterprise network topologies, local breakout, Virtual Mobile Zones and Carrier Services Integration. The Mobile Edge Platform can be deployed on the customer’s cloud instance, or as a virtual machine on any virtualization platform instance, or the customer can purchase a Highway 9 appliance.
12. “Mobile Cloud Services” means cloud managed portal for orchestration, operational dashboards and lifecycle management of the Access Points, Mobile Edge Platform, SIM Subscriber Management, Spectrum Allocation Services (SAS) using Customer’s SAS account.
13. “Order Form” means an ordering document for Products and Services purchased from Highway 9 (or an authorized Highway 9 reseller) that has been agreed to by the parties.
14. “Personal Data” means any information relating to an identified or identifiable natural person.
15. “Purchase Order” means a Customer issued purchase order that sets forth the Products and Professional Services ordered.
16. “Products” means the Hardware, Software, and Hosted Services.
17. “Professional Service” means fee-based setup, implementation, configuration, consulting, training, and other services (other than the Hosted Services) that Highway 9 provides pursuant to an Order Form and which is detailed in an attached statement of work.
18. “Services” means the Support Services and Professional Services.
19. “Service Term” means the term of the subscription granted by Highway 9 to Customer with respect to the Products. Unless otherwise set forth in an Order Form, the Service Term shall be three (3) years.
20. “Software” means the Mobile Edge Platform and the Firmware, and any other software application or machine-readable object code provided by Highway 9 (or a Highway 9 reseller) to Customer to be run in Customer’s environment pursuant to an Order Form, including without limitation, subsequent releases and any updates of that Software that Customer is entitled to receive from Highway 9.
21. “Support Services” means the standard support services offered by Highway 9 to Customer for the Products, as currently described in the Agreement, and as may be supplemented or modified during the Service Term. For the avoidance of doubt, Support Services exclude all Professional Services.
22. “Subscriber Identity Module” means an integrated circuit (IC) intended to securely store a mobile subscriber identity. A SIM card can be instantiated as a physical SIM or an eSIM.
23. “Carrier” means a Mobile Network Operator (MNO), which is a company that provides wireless communication services, including voice and data transmission, to mobile devices like smartphones and tablets.
2. PROVISION OF PRODUCTS AND SERVICES
1. Hosted Service
2. User Credentials. Access to the Hosted Services is limited to individual employees, consultants or contractors of Customer who are provided a registered account by Customer, having an individual user identification name and password. Account names and passwords may not be shared. Customer is responsible for all access to the Hosted Services by its employees, consultants and contractors. Customer shall immediately notify Highway 9 in the event that Customer becomes aware of any violation of the terms of this Agreement. In the event Customer becomes aware that the security of any user’s login information has been breached, Customer shall immediately notify Highway 9 of such breach and Customer shall immediately deactivate such account or change the account’s login information.
3.Maintenance and Updates. Customer will receive those updates to the Hosted Services for no additional charge that Highway 9 makes generally available to its other customers as part of the standard Hosted Services together with release notes for each such update. Highway 9 shall perform routine maintenance sufficient to keep the Highway 9 Hosted Services performing in accordance with Documentation.
2. Software License.
1. Grant. Subject to the terms of the Agreement and applicable Order Form and Customer’s payment of undisputed fees, Highway 9 grants to Customer a non-exclusive, non-transferable (except in accordance with 12.2) license to install, activate, execute and view the Software solely for Customer’s internal use during the applicable Service Term.
2. Updates. All Software updates to the Software will be made available to Customer via the Hosted Services. Highway 9 will make available release notes for every Software update. Highway 9 will provide advance notice of any Software updates that introduce significant new or different functionality.
3. Third-Party Software Licenses. The Software may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open-Source Software”). To the extent required by the license that accompanies the Open-Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open-Source Software, including, without limitation, any provisions governing access to source code, modification, or reverse engineering.
3. Hardware Purchase.
1. Purchase. Customer shall purchase all Hardware items set forth in an Order Form. Title to the Hardware and risk of loss and damage will pass to Customer when Highway 9 delivers the Hardware to the carrier selected by Customer. All Hardware will be deemed accepted upon delivery.
2. Delivery. Hardware will be deemed delivered when Highway 9 delivers Hardware to Customer’s specified carrier (FCA as defined in Incoterms 2010). In the absence of specific instructions, Highway 9 will select the carrier and, at its discretion, may ship “collect”, prepaid or subject to invoice payment terms, but shall not assume any liability or costs in connection with the shipment. For an additional fee, Highway 9 will insure the full value of the Products against loss or damage. Delivery dates specified in any Customer documentation or Purchase Order shall not be binding on Highway 9. All dates and times for delivery of the Products are estimates only and Highway 9 shall not have any liability for delay or for any damages or losses sustained by Customer as a result of such dates or times not being met.
3. Reseller Sales. This Section 2.3 shall not apply to the extent Customer has purchased Hardware from a Highway 9 channel partner (such as an authorized reseller).
4. Professional Services.
1. Scope. Highway 9 will perform the Professional Services set forth in an Order Form, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms. If either Customer or Highway 9 request a change in the scope of Professional Services, any agreed-upon changes, including changes in fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
2. Customer Cooperation. Customer acknowledges that Highway 9’s ability to timely deliver the Professional Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to Highway 9, on a timely basis, all information, materials, and assistance reasonably necessary for Highway 9 to perform the Professional Services. Highway 9’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
3. Staffing. Highway 9 shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Professional Service under this Agreement and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Professional Service under this Agreement. Highway 9 will be responsible for the acts or omissions of its employees and contractor personnel and any delays caused by the reassignment or replacement thereof.
4. Expense Reimbursements. Customer will reimburse Highway 9 for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.
5. Support Services. Highway 9 will provide Customer with Support Services with respect to the Products in accordance with the support terms set forth on Exhibit A.
3. PAYMENT OF FEES
1. Fees. Customer will pay Highway 9 the undisputed fees described in the Order Form in accordance with the terms set forth in such Order Form (the “Fees”). Fees are exclusive of transportation fees, handling fees, customs, import duties or insurance costs, which will be separately charged to Customer. Except as expressly provided for herein, the Fees are non-refundable and non-cancellable once Products are shipped.
2. Invoicing. Full payment for undisputed invoices must be received by Highway 9 within 30 days after Customer’s receipt of each such invoice. Undisputed unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer will be responsible for all taxes, including but not limited to sales and use tax and VAT, associated with the Services (other than U.S. taxes based on Highway 9’s real property or net income).
3. Cancellation of Orders. Highway 9 may cancel any Order Form and may delay or decline to make any further shipments in the event of bankruptcy or insolvency of customer, any non-payment or other default by Customer, or any proceeding brought by 0or against Customer, voluntarily or involuntarily, under any provision of any bankruptcy or other insolvency law.
4. Reseller Sales. This Section 2.3 shall not apply to the extent Customer has purchased Products from a Highway 9 channel partner (such as an authorized reseller).
4. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
1. Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any portion of the Products, unless this restriction is not permitted under applicable law; (b) copy, modify, translate, or create derivative works based on any portion of the Products (except to the extent expressly permitted by Highway 9 or authorized by the Documentation); (c) sell, rent, lease, pledge, assign or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels contained in the Products; (e) use any portion of any Product for any fraudulent or unlawful purposes or in violation of any third party’s proprietary or contractual rights; (f) use any portion of any Product to build any products or services that are competitive to any portion of any Product or to create similar ideas, features, or functions of any portion of a Product; (g) interfere or attempt to interfere with the proper working of any Product or any other user’s use of the Products; (h) bypass any measures Highway 9 or its licensors may use to prevent or restrict access to the Products (or other accounts, computer systems or networks connected) scan or test vulnerability of the Services or related products and services without Highway 9’s prior written consent; or (i) access any portion of the Products for any benchmarking, comparative or competitive purposes.
2.Customer Data. Customer Data. Customer represents and warrants that Customer has all the rights, power and authority necessary to collect, share, and grant the rights granted herein to any data, information, text, graphics, or other materials, including without limitation the Personal Data (as defined below) provided by or collected from Customer or any End User in connection with the Services for processing on Customer’s behalf (collectively referred to as “Customer Data”). “Personal Data” shall have the meaning assigned to “personal data” or “personal information” under applicable data protection laws. Customer will be solely responsible for the accuracy, quality and legality of Customer Data, and it shall be Customer’s sole responsibility to provide notice to, and obtain all necessary consents from, End Users regarding the processing of Customer Data in accordance with this Agreement and for any other processing activities conducted by Highway 9 on Customer’s behalf.
3. Personal Data. “Personal Data” shall have the meaning assigned to “personal data” or “personal information” under applicable data protection laws. Customer will be solely responsible for the accuracy, quality and legality of Customer Data, and it shall be Customer’s sole responsibility to provide notice to, and obtain all necessary consents from, End Users regarding the processing of Customer Data in accordance with this Agreement and for any other processing activities conducted by Highway 9 on Customer’s behalf.
4. Customer Safety Requirements for Mobile Network Operator/ Carrier Compliance: Once a Neutral Host Network has been provisioned, Customer must coordinate with Highway 9, or its designated representatives, for any access point location changes, in order to maintain compliance with emergency services requirements, such as E911 emergency calling.
5. CONFIDENTIALITY.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Highway 9’s Proprietary Information includes non-public information regarding features, functionality, and performance of the Services. Customer’s Proprietary Information includes non-public Customer Data. Except in performance of the Services or as otherwise permitted in this Agreement, the Receiving Party agrees not to: (a) use or divulge to any third party any such Proprietary Information, or (b) give access to such Proprietary Information solely to those employees, advisors, contractors and agents with a need to have access thereto for purposes of this Agreement. The Disclosing Party agrees that the foregoing will not apply with respect to any information after 5 years following the disclosure thereof or any information that the Receiving Party can document: (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party without restriction; or (iii) was or is rightfully disclosed to it without restriction by a third party; or (iv) was or is independently developed without use of any Proprietary Information of the Disclosing Party. If the Receiving Party is compelled by law to disclose Proprietary Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6. PROPRIETARY RIGHTS.
1. Highway 9 IP. Except for any Customer Data included therein, Highway 9 will own and retain all right, title and interest in and to: (a) the Products and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions, or other technology developed or used by Highway 9 in connection with the Products or in connection with providing Services to Customer; and (c) all intellectual property rights related to any of the foregoing.
2. Customer IP. Customer hereby grants Highway 9 a worldwide, non-exclusive, royalty-free, license to host, copy, transmit, display, and otherwise process and use Customer Data, solely as necessary for Highway 9 to provide Customer with the Products and Services, including providing Support Services for the Products.
3. Usage Data. Notwithstanding anything to the contrary set forth herein, Highway 9 shall be permitted to (i) compile statistical and other information related to the performance, operation and users’ use of the Products, and (ii) data related to Customer’s usage of features and functionality within the Products (collectively, “Usage Data”). Usage Data is used solely (i) for billing during the Term (as defined below), (ii) during and after the Term to implement, operate, maintain and improve the Products and to fulfill its obligations hereunder; (iii) and during and after the Term, and in aggregated and anonymized (as each such term is defined in any applicable privacy law, and provided that such aggregated and anonymized Usage Data cannot under any circumstances be reidentified to a natural person) form, to create statistical analyses and for research and product development. If Highway 9 publicly discloses any Usage Data for the foregoing purposes, such disclosure will be in a manner that does not identify, and cannot under any circumstances be reidentified to, Customer or its users. Highway 9 shall own all Usage Data, to the extent not including any Customer Data.
4. Feedback. During the Term, Customer may provide Highway 9 with feedback concerning the Products or Services, or Customer may provide Highway 9 with other comments and suggestions for new products, features, or improvements (collectively, “Feedback”). Except for Customer Data included therein, Customer grants Highway 9 an unrestricted, irrevocable right to use such Feedback in connection with the Products and Services. All Feedback provided by Customer to Highway 9 shall be provided on an “as is” basis with no warranty. For the sake of clarity, (i) Customer is not obligated to provide Highway 9 with any Feedback under this Agreement, and (ii) under no circumstances will Customer Data constitute Feedback under this Agreement.
7. PRIVACY AND SECURITY
1. Privacy. Highway 9 will not process Customer Personal Data except in accordance with this Agreement, and all processing of Customer Personal Data shall be in accordance with applicable data protection laws. In addition, the Parties acknowledge and agree that the processing of Customer Personal Data that is subject to the CPRA or VCDPA (as defined in Exhibit B) shall be carried out in accordance with the terms set forth in Exhibit B.
2. Security Controls. Highway 9 shall implement and maintain a written information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of Customer Data. Such safeguards will be commensurate with Highway 9’s size and complexity, the nature and scope of its activities, and the sensitivity of the Customer Data. At a minimum, such safeguards shall consist of the organizational and security measures set forth on Exhibit C. Upon request by Customer, Highway 9 will provide to Customer, without charge, copies of any, including the most recent versions of all, third-party audit or compliance certificates for the Hosting Provider that are available to Highway 9 and are allowed to be shared with third parties.
3. Security Breach. If either party determines that there has been unauthorized access or use of any Customer Data or materials relating to the Products (a “Security Breach”), that party will promptly notify the other party with confirmation of such notification in writing. Each party will take such actions and measures as may be reasonably necessary or appropriate to mitigate, or protect against, any loss, liabilities, or damages to Customer or Highway 9 (including preventing any further Security Breach) and will keep each other reasonably informed of all material developments in connection with such Security Breach.
4. Disaster Recovery. Highway 9 will have in place a disaster recovery plan for business continuity and infrastructure redundancy (“DRP”) in the event of any event or circumstance that could materially adversely affect the Services or continued operation of Highway 9 as required under this Agreement (a “Disaster”). During the Term, Highway 9 will (a) provide a copy of the DRP to Customer upon request and (b) periodically update and test the operability of the DRP. In the event of any Disaster, Highway 9 will implement the DRP and otherwise use all necessary continuous efforts to reinstate the affected Services as quickly as possible. Except as provided for herein, Highway 9 will have no responsibility for making or retaining back-up copies of Customer Data. In the event of any loss of or damage to Customer Data hosted by or on behalf of Highway 9, Highway 9 will use commercially reasonable efforts to restore such lost or damaged Customer Data from the latest back-up of such Customer Data. Upon written request, Highway 9 will return or (at Customer’s election) destroy all Customer Data in Highway 9’s possession within 30 days from the date of such request, and thereafter, if Customer requests in writing, will certify such return and/or destruction to Customer.
8. TERM AND TERMINATION
1. Term. This Agreement will start on the Effective Date and will continue until terminated in accordance with this Section 5. The Service Term of each Order Form shall be for the term set forth on the Order Form (“Initial Service Term”); thereafter the Service Term with respect to the Software and Hosted Services will automatically renew for additional periods of the same duration as the Initial Service Term (each a “Renewal Term” and together with the Initial Service Term, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current Initial Service Term or Renewal Term. Highway 9 agrees to provide Customer with at least sixty (60) days’ prior notice of any price increases applicable to a Renewal Term.
2. Termination. A party may terminate this Agreement or any Order Form for cause: (a) upon 30 days written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any termination of this Agreement shall automatically result in the termination of all Order Forms. In addition, this Agreement will automatically terminate if there are no Order Forms referencing this Agreement for a continuous period of 30 days.
3. Effect of Termination. If an Order Form is terminated by Customer in accordance with Section 8.2, Highway 9 will refund Customer any prepaid Fees covering the remainder of the Term after the effective date of termination. If an Order Form is terminated by Highway 9 in accordance with Section 8.2, Customer will pay any unpaid fees covering the remainder of the Term. For the sake of clarity, in no event will termination relieve Customer of its obligation to pay any fees payable to Highway 9 for the period prior to the effective date of termination. Within thirty (30) days following termination or expiration of the Agreement and unless prohibited by law, (x) Highway 9 will delete all Customer Data provided by Customer, and (y) Customer will cease all use of the Hosted Services and Software and will delete all copies of the Software in its possession. Upon request by a party, a duly appointed officer of the other party will certify its compliance with the obligations set forth in Section 8.3(x) and (y).
4. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTY AND DISCLAIMER
1. Mutual Warranties. Each party represents and warrants that (a) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement and (b) it will comply with all applicable laws in carrying out its obligations and exercising its rights under this Agreement.
2. Highway 9 Warranties.
1. Product Warranty. During the applicable Service Term, Highway 9 warrants that the Products will conform to the description set forth in the Order Form and the Documentation in all material respects. As Highway 9’s sole and exclusive liability and Customer’s sole and exclusive remedy for the breach of the warranty set forth in this Section 9.2, Highway 9 will use commercially reasonable efforts to correct or replace the Products to comply with such warranty without charge. If Highway 9 is unable to make the Products operate as warranted within 30 days after Customer’s written notice, then Customer or Highway 9 may terminate this Agreement and/or the applicable Order Form, and Highway 9 will refund any fees actually paid by Customer (excluding any implementation fees or other one-time fees for professional services) to Highway 9 for the remainder of the then-current Initial Term or Renewal Term.
2. Service Warranty. Highway 9 shall perform all Services in a professional and workmanlike manner.
3. Exclusions. The Product Warranty set forth above excludes: (i) operation of the Product not in accordance with the Documentation, (ii) minor scratches to plastic surfaces and other externally exposed components, (iii) defects or damage resulting from accident, unusual physical, electrical or electromechanical stress, or modification of the Products or any part thereof, (iv) defects or damage from unauthorized or improper testing, operation, maintenance, installation, servicing or adjustment of the Hardware (including open a Hardware device enclosure or otherwise modifying it).
Disclaimer. Products and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Highway 9 or by third-party providers, or because of other causes beyond Highway 9’s reasonable control; however, Highway 9 will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, Highway 9 does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND HIGHWAY 9 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
10. INDEMNITY.
1. By Highway 9. Highway 9 will indemnify, defend and hold harmless Customer and its shareholders, officers, directors, employees, affiliates and agents (each a “Customer Indemnified Party”) from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) (“Losses”) incurred by such Customer Indemnified Party arising out of any claim, suit, action or proceeding by a third party to the extent that such Losses arise from allegations that the Products infringe, misappropriate, or violate any U.S. Intellectual Property Rights (an “Infringement Claim”).In the event all or any part of the Products becomes or is in Highway 9’s reasonable discretion likely to become the subject of an injunction preventing its use as contemplated in this Agreement, or Highway 9 reasonably determines that all or any part of the Products is likely to infringe, violate, or misappropriate any third-party intellectual property rights, Highway 9 may, at its option and expense, (a) procure the right to continue use of the affected portions of the Products or (b) replace or modify the affected portions of the Products so that they are non-infringing, non-violating, or non-misappropriating, as the case may be, while continuing to perform all of the material functions of such portions of the Products; provided, however, that if in Highway 9’s reasonable opinion it is not commercially reasonable for Highway 9 to take the actions set forth in (a) or (b), Highway 9 may terminate this Agreement in whole or as to the affected portions of the Products (and Customer will no longer be required to pay for such terminated portions and Highway 9 will refund to Customer any pre-paid Fees for Products that will not be provided by Highway 9.Notwithstanding the foregoing, Highway 9 will have no obligation to indemnify, defend or hold Customer harmless to the extent the Infringement Claim arises from: (i) Customer’s breach of this Agreement; (ii) Customer’s violation of applicable law; (iii) the combination by Customer of the Products with products, services, or trademarks not provided by Highway 9 under this Agreement where, but for such combination, such claim would have been avoided; (iv) the negligence or willful misconduct of Customer or End Users; or (v) Customer’s continued use of any technology beyond a reasonable time after an update has been provided. This Section states Highway 9’s sole liability and Customer’s exclusive remedy for claims related to the infringement, violation, or misappropriation of intellectual property rights by Highway 9 or the Products.
2. By Customer. Customer will indemnify, defend and hold harmless Highway 9 and its shareholders, officers, directors, employees, affiliates and agents (each a “Highway 9 Indemnified Party”) from and against any and all Losses incurred by such Highway 9 Indemnified Party arising out of any claim, suit, action or proceeding by a third party to the extent that such Losses arise from Customer’s breach of Section 4 (“Customer Restrictions and Responsibilities”).
3. Procedure. Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (a) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim or suit, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim or suit; (b) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (c) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim or suit.
11. LIMITATION OF LIABILITY.
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW AND EXCEPT WITH RESPECT TO A PARTY’S LIABILITY ARISING UNDER ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, NEITHER PARTY NOR ITS SUPPLIERS WILL BE LIABLE TO THE OTHER FOR: (A) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO HIGHWAY 9 FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
12. MISCELLANEOUS
1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
2. Assignment. This Agreement is not transferable or assignable by either party, whether in whole or in part, without the prior written consent of the other party, except that either party may transfer or assign this Agreement to an affiliate or in a merger, consolidation or sale. Subject to the foregoing, this Agreement and each and every provision hereof, will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
3. Publicity. Highway 9 may identify Customer as a user of the Services and may use Customer’s name, logo, and other trademarks to identify Customer as customer of the Highway 9 (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Highway 9 may revoke the foregoing right to use its name, logo and trademarks by providing written notice to Highway 9.
4. Service Limitations. The use of the Access Points is subject to the local applicable regulation. Customer acknowledges that the Access Points’ operation in whichever spectrum band is permitted by the local regulatory authority is subject to current and future international telecommunications band agreements, wherever applicable. Customer acknowledges that there may be interference, from time to time, in certain regional markets, such as in the U.S. under the CBRS program, from Priority Access Licensees and Incumbent Users. Access Points and external antennas (if any) must be installed and maintained in accordance with the applicable local regulations and in accordance with additional rules required by the local spectrum regulatory authority. Customer acknowledges that under certain conditions, if requested by the local regulatory authority, the spectrum administrator may suspend operation of Access Point(s).
5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties; provided, however, any modifications or updates made to this Agreement by Highway 9 shall be effective with respect to any Order Form entered into after the date such modifications or updates were first published by Highway 9.
6. Export. Customer may not remove or export from the United States or allow the export or re-export of the Services, or any portion thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
7. Government Use. Highway 9 provides the Products and Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Products and Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, then it must negotiate with Highway 9 to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Highway 9 in any respect whatsoever. Highway 9 is an independent contractor of Customer. Highway 9 is solely responsible and liable for its own taxes, insurance premiums and employment benefits. No Highway 9 employee is eligible for any benefits (including stock options, health insurance or retirement benefits) provided by Customer to its employees. Highway 9 will not make any commitment binding on Customer or represent that it has authority to do so.
9. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10. Injunctive Relief. Each party acknowledges and agrees that, in the event of any breach of this Agreement by such party, the other party could be irreparably and immediately harmed and may not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled in law or equity, a party shall be entitled to seek an injunction or injunctions (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of this Agreement and/or to compel specific performance of this Agreement.
11. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Highway 9 will be sent to Highway 9 Networks, Inc., 2350 Mission College Blvd, Suite 490, Santa Clara, CA, 95054, Attention: Legal Department with a copy to [email protected] or to such other address as Highway 9 designates in writing. Notices to Customer will be sent to the address stated in the most recent Order Form on file for Customer or to such other address as Customer designates in writing.
12. Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Each party irrevocably agrees that the state and federal courts located in California will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
EXHIBIT A
SUPPORT SERVICES
Highway 9 Support Services are included as a part of the Highway 9 subscription purchased by Customer. For high severity issues, support services are available 24 hours a day, 7 days a week via web and email (https://support.highway9networks.com/ or [email protected]).
1. Mobile Center: Mobile Center SKUs provide the Cloud Orchestration and Management platform, as software as a service. 24×7 Technical support is included for the duration of the applicable Service Term. Mobile Cloud Services include the Mobile Center portal, orchestration, operational dashboards and the lifecycle management of Mobile Edge, Mobile Network, SIM Subscriber Management, Spectrum Allocation Services (SAS) using Customer’s SAS account, including Customer’s Certified Professional Installer (CPI) certificate.
2. Mobile Edge Platform: Mobile Edge set of SKUs provide entitlement to Highway9 Software that includes the Packet Core, integration into enterprise network topologies, Virtual Mobile Zones and Carrier Services Integration. Mobile Edge Platform enables data and control plane integration with best-of-breed Enterprise Networking partner services. The Mobile Edge software can be deployed on the customer’s cloud instance, also as a virtualized appliance or the customer can purchase this as a Highway 9 network appliance. 24×7 Technical support is included for all three deployment models and hardware maintenance support is included for the duration of the applicable Service Term.
3. Access Points: These components and associated SKUs provide the respective pre-integrated and validated Access Point hardware, and the Mobile Cloud Services and Mobile Edge Software for the Access Point. 24×7 Technical Support and Hardware Maintenance for the applicable Service Term.
Severity Level | Description | Response Time |
Priority 1 | Critical production issue affecting all users, including system, unavailability with no workaround | 2 hours |
Priority 2 | Major production system functionality impacted or significant performance degradation. | 4 hours |
Priority 3 | Degraded Operations: Service is operational but partially degraded and an acceptable workaround exists. |
|
Priority 4 | Serious bug has been detected and product defect is likely. | Next Business Day |
The following are the various levels of Support offered to Highway 9 Mobile Center end customers and partners:
1. “Level 1” Support means accepting the initial request for assistance from the End User. This is achieved by using the Highway 9 Mobile Center Support Portal (https://support.highway9networks.com/). While support is initiated via the Support Portal, other means of communication are used such as email, telephone callback, and web meetings with screen sharing as an option for further information exchange.
2. “Level 2” Support means providing email, web and telephone support for Customers in operation of the Subscription Products, including providing; functional clarifications to identify possible defects in the Subscription Products; primary support for answering routine questions regarding usage of the Subscription Products; and interfacing with the Level 3 Support team members to accurately define and document the results of the Customer’s incident.
3. “Level 3” Support means (i) providing email, web and telephone support for Customers for complex or unique issues regarding the Subscription Products, including researching the root cause the defect where feasible in a standard “out of the box” Subscription Products environment; (ii) providing the technical expertise necessary to assist Customers with troubleshooting the Customer’s environment as it relates to usage of the Subscription Products; (iii) and interfacing with and/or escalating to Level 4 when required in a timely manner.
4. “Level 4” Support means debugging and correcting/fixing any errors or defects in the Subscription Products. Defects may require follow up responses with software patches or recommendations to upgrade software to a new software release.
EXHIBIT B
UNITED STATES PRIVACY LAW EXHIBIT
This United States Privacy Law Exhibit (“Exhibit”) supplements the Agreement and includes additional information required by the CPRA and the VCDPA. Any terms not defined in this Exhibit shall have the meanings set forth in the Agreement.
1. GENERAL
1. Subject Matter of Processing: Highway 9 will process Customer Personal Data as necessary to provide the Products and Services under the Agreement, for the purposes specified in the Agreement, and in accordance with Customer’s instructions as set forth in this Agreement. The nature of the processing shall include, without limitation: Receiving, holding, using, updating, protecting, returning, and erasing data.
2. Duration of Processing: Highway 9 will process Customer’s Personal Data as long as required (i) to provide the Products and Services to Customer under the Agreement; (ii) for Highway 9’s legitimate business needs; or (iii) by applicable law or regulation.
3. Categories of Data Subjects: Individuals accessing Customer’s network that is managed by the Products
4. Nature and Purpose of Processing: to provide Customer with the Services
5. Sensitive Personal Data: None.
2. CALIFORNIA
1. Definitions
1. “CPRA” means the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 et seq.) as amended by the California Privacy Rights Act.
2. For purposes of this Section A, the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,” “Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer Request” shall have the meanings set forth in the CPRA.
3. All references to “Personal Data,” “Controller,” “Processor,” and “Data Subject” in the DPA shall be deemed to be references to “Personal Information,” “Business,” “Service Provider,” and “Consumer” as defined in the CPRA. Obligations
1. With respect to Highway 9’s processing of Customer Personal Data, the parties acknowledge and agree that Customer is a Business and Highway 9 is a Service Provider for the purposes of the CPRA (to the extent it applies) and Highway 9 is receiving Personal Information from Customer in order to provide the Products pursuant to the Agreement, which constitutes a Business Purpose.
2. Customer shall disclose Customer Personal Data to Highway 9 only for the limited and specified purposes described in Section A.
3. Highway 9 shall not Sell or Share Customer Personal Data provided by Customer under the Agreement.
4. Highway 9 shall not retain, use, or disclose Customer Personal Data provided by Customer pursuant to the Agreement for any purpose, including a Commercial Purpose, other than as necessary for the specific purpose of providing the Products or performing the Services for Customer pursuant to the Agreement, or as otherwise set forth in the Agreement or as permitted by the CPRA.
5. Highway 9 shall not retain, use, or disclose Customer Personal Data provided by Customer pursuant to the Agreement outside of the direct business relationship between Highway 9 and Customer, except where and to the extent permitted by the CPRA.
6. Highway 9 shall notify Customer if it determines that it can no longer meet its obligations under the CPRA.
7. Except and to the extent permitted by the CPRA, Highway 9 will not combine Customer Personal Data received from, or on behalf of, Highway 9 with Personal Information that it receives from, or on behalf of, another party, or that it collects from its own interaction with the Consumer.
8. Highway 9 shall comply with all obligations applicable to Service Providers under the CPRA, including by providing Customer Personal Data provided by Customer under the Agreement, and the level of privacy protection required by CPRA.
9. In the event that Highway 9 engages a new sub-processor to assist Highway 9 in providing the Products or Services to Customer under the Agreement, Highway 9 shall: (i) notify Customer of such engagement at least ten (10) days before enabling a new sub-processor; and (ii) enter into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements set forth in the CPRA.
1. Highway 9 shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Highway 9 receives a Data Subject Request in relation to Customer Personal Data, Highway 9 will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Products. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Highway 9, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.
1. Highway 9 shall maintain records sufficient to demonstrate its compliance with its obligations under this Section B, and retain such records for a period of three (3) years after the termination of the Agreement. Customer shall, with reasonable notice to Highway 9, have the right to review, audit and copy such records at Highway 9’s offices during regular business hours.
2. Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Highway 9 shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Highway 9’s compliance with prevailing data security standards applicable to the processing of Customer Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under the CPRA, allow Customer’s independent third party representative to conduct an audit or inspection of Highway 9’s data security infrastructure and procedures that is sufficient to demonstrate Highway 9’s compliance with its obligations under the CPRA, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Highway 9’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections.
1. Definitions
1. “VCDPA” means the Virginia Consumer Data Protection Act (Va. Code §§ 59.1-575 et seq.).
2. For purposes of this Section C, the terms “Consumer,” “Controller,” “Personal data,” “Processing,” and “Processor” shall have the meanings set forth in the VCDPA.
3. All references to “Data Subject” in this DPA shall be deemed to be references to “Consumer” as defined in the VCDPA.
2. Obligations
1. With respect to Customer Personal Data, the parties acknowledge and agree that Customer is a Controller, and Highway 9 is a Processor for the purposes of the VCDPA (to extent it applies).
2. The nature, purpose, and duration of Processing, as well as the types of Customer Personal Data and categories of Consumers are as set forth in Section A.
3. Highway 9 shall adhere to Customer’s instructions with respect to the Processing of Customer Personal Data and shall assist Customer in meeting its obligations under the VCDPA by:
1: Assisting Customer in responding to Consumer rights requests under the VCDPA as set forth in Section B(c);
2: Complying with Exhibit C (“Security Controls”) with respect to Customer Personal Data provided by Customer.
3: In the event of a Personal Data Breach, providing information sufficient to enable Customer to meet its obligations pursuant to Va. Code § 18.2-186.6; and
4: Providing information sufficient to enable Customer to conduct and document data protection assessments to the extent required by VCDPA.
4. Highway 9 shall maintain the confidentiality of Customer Personal Data provided by Customer and require that each person Processing such Customer Personal Data be subject to a duty of confidentiality with respect to such Processing.
5. Upon Customer’s written request, Highway 9 shall delete or return all Customer Personal Data provided by Customer, unless retention of such Personal Data is required or authorized by law or the Agreement.
6. In the event that Highway 9 engages any other person a new sub-processor to assist Highway 9 in providing the Products to Customer under the Agreement, Highway 9 shall enter into a written contract with the sub-processor requiring sub-processor to observe all of the applicable requirements of a Processor set forth in the VCDPA.
3. Audit Rights
1. Upon Customer’s written request at reasonable intervals, Highway 9 shall, as set forth in Sections B(d) of this Exhibit, (i) make available to Customer all information in its possession that is reasonably necessary to demonstrate Highway 9’s compliance with its obligations under the VCDPA; and (ii) allow and cooperate with reasonable inspections or audits as required under the VCDPA.
EXHIBIT C
HIGHWAY 9 SECURITY CONTROLS
2. Assigning responsibility for information security management.
3. Devoting adequate personnel resources to information security.
4. Conducting appropriate background checks and requiring employees, vendors and others with access to the Customer Personal Data to enter into written confidentiality agreements.
5. Conducting training to make employees and others with access to Customer Personal Data aware of information security risks and to enhance compliance with its policies related to data protection.
6. Preventing unauthorized access to Customer Personal Data through the use, as appropriate, of physical and logical entry controls, secure areas for data processing, procedures for monitoring the use of data processing, audit trails, use of secure passwords, network intrusion detection technology, authentication technology, secure log-on procedures, and virus protection, on-going monitoring of compliance with its policies related to data protection, including:
2. Denial-of-use control measures to prevent unauthorized use of data protection systems (e.g., automatically enforced password complexity and change requirements, firewalls, etc.);
3. Requirements-driven authorization scheme and access rights, and monitoring and logging of system access to identify unauthorized Processing of Customer Personal Data by Authorized Personnel;
4. Data transmission control measures to ensure that Customer Personal Data cannot be read, copied, modified or removed without authorization during electronic transmission, transport or storage on data media, and transfer and receipt records.
5. Encryption of any Customer Personal Data transmitted electronically to a person outside Vendor’s IT system, transmitted over a wireless network, or stored on any movable or portable media.
6. Data entry control measures to ensure that it is possible to check and establish whether and by whom Customer Personal Data has been input into data processing systems, modified, or removed;
7. Subcontractor supervision measures to ensure compliance with the Addendum;
8. Measures to ensure that Customer Personal Data is protected from accidental destruction or loss including, as appropriate and without limitation, data backup, retention and secure destruction policies; secure offsite storage of data sufficient for disaster recovery; and disaster recovery programs; and
9. Measures to ensure that Customer Personal Data collected for different purposes can be processed separately including, as appropriate, physical or adequate logical separation of client data.
