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Software License Agreement for AirStack Edge

IMPORTANT NOTICE

THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS PROVIDED BY DEEPWAVE DIGITAL INC. ("DEEPWAVE") FOR THE USE OF THE AIRSTACK CORE APPLICATION (THE "APPLICATION"). THE APPLICATION IS LICENSED, NOT SOLD. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE APPLICATION.

THE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU (THE "LICENSEE") AND DEEPWAVE CONCERNING YOUR RIGHTS TO INSTALL AND USE THE APPLICATION.

COPYING, INSTALLING, OR USING THE APPLICATION CONSTITUTES YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST IMMEDIATELY STOP USING THE APPLICATION.

  1. Definitions. Capitalized terms used in this Agreement and not otherwise defined in herein shall have the definitions set forth below:

(a) "Documentation" shall mean all user guides, manuals, and support material relating to the use of the Application that Deepwave provides to Licensee, as may be updated from time to time.

(b) "Hardware" means any Deepwave OEM products.

(c) "Intellectual Property Rights" shall mean all worldwide patents, trademarks, copyrights, trade secrets, and other intellectual property and proprietary rights.

(d) "Internal Business" shall mean the use of the Application by Licensee's employees and contractors in furtherance of Licensee's legitimate business activities.

(e) "Application" shall mean the AirStack Edge application as well as new versions, upgrades, updates, and bug fixes thereto made available to Licensee.

  1. License Grant. Deepwave hereby grants to Licensee, subject to the terms of this Agreement, a nonexclusive license (the "License") to

(a) install and use the Application solely on Hardware controlled by Licensee and solely for Licensee's Internal Business; and

(b) copy, internally distribute, and internally publish a reasonable number of copies of the Documentation, solely in connection with Licensee's use of the Application.

  1. License Restrictions. The License granted is subject to the express restrictions set forth below and any other restrictions set forth in the Documentation and any other signed agreement between Deepwave and Licensee. Licensee shall not, and shall not cause or permit any other individual or entity to, directly or indirectly:

(a) copy, modify or create any derivative work of the Application;

(b) use the Application for any purpose not otherwise explicitly permitted in the Documentation;

(c) use the Application to develop or test software providing similar functionality;

(d) disassemble, decompile, or reverse engineer the Application, or attempt to gain access to its method of operation or source code;

(e) use, test, or reverse engineer the Application in order to make or distribute an application or software that performs the same or similar functions as Application;

(f) rent, lease, or loan the Application, use the Application for supporting any third party's use of the Application, time share the Application, or provide service bureau or similar service use for the Application;

(g) sell, license, sublicense, provide access, publish, display, distribute, disseminate, assign, or otherwise transfer to a third party the Application or any copy thereof;

(h) alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices or license files on or in copies of the Application;

(i) copy, distribute or publish the Documentation, except as expressly authorized in Section 2;

(j) disable, circumvent, or workaround any technical limitations in the Application;

  1. Fees. The fees for the License may be set forth in a separate agreement between Licensee and Deepwave, including any agreement relating to Deepwave's installation of the Application on the Hardware or Deepwave's provision of other professional services to Licensee.

  2. Ownership. The Application is licensed and not sold. The Application, as well as all modifications, configurations, and improvements thereto, derivative works thereof, and worldwide Intellectual Property rights therein, shall at all times remain the property of Deepwave and/or its licensors. Licensee shall have no right, title, or interest in the Application, except as expressly set forth in this Agreement and to the extent Licensee acquires any right, title or interest in the Application, it hereby irrevocably assigns and transfer it to Deepwave. The Application may include third party software licensed to Licensee under these terms or under separate terms of such third party licensors that are accessible within the Application in a separate file. Any third services or data accessible through an interface in the Application are governed solely by the third party's terms of use or Licensee's own agreement with the Third Party.

  3. Software Maintenance and Support. Deepwave has no obligation to provide Licensee with support, maintenance, technical assistance, upgrades, updates, bug fixes or any other services relating to the Application or Licensee's use thereof (collectively, "Support and Maintenance") under this Agreement, and any such Support and Maintenance must be purchased separately on an annual subscription basis by Licensee.

If Licensee's Support and Maintenance subscription has expired without being renewed, Licensee may reinstate it by paying the fees described below. Reinstating will provide access to all Support and Maintenance services available at the time of reinstatement, including the latest versions of Application. The fees for reinstating a lapsed Support and Maintenance subscription will include fees for annual renewal, including any applicable back Support and Maintenance fees for the lapsed period, and reinstatement fees if applicable. A reinstatement fee is applied to a Support and Maintenance subscription that has lapsed.

LICENSEE ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE RIGHT TO RECEIVE A REFUND OF LICENSE FEES PAID IN LIMITED CIRCUMSTANCES (AS OUTLINED IN SECTION 15), LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT, ERROR, MALFUNCTION IN THE APPLICATION SHALL BE TO RECEIVE SUPPORT AND MAINTENANCE FROM DEEPWAVE PURSUANT TO AN ACTIVE AND VALID SUPPORT AND MAINTENANCE SUBSCRIPTION.

  1. Data. Licensee represents, warrants, and covenants that that Deepwave may use all data generated, received, or processed by the Application ("Data") for its internal business purposes, including, without limitation, Support and Maintenance, developing new functionality to the Application, research and development, and using or combining the Data with any other data, information or statistics, to improve machine learning and artificial intelligence technologies used in connection with the Applications, provided that in all instances, Deepwave will not sell, license, transfer or disclose the Data to any third party (other than contractors bound to confidential obligations that use the Data solely in furtherance of Deepwave's internal business).

  2. Term and Termination.

8.1. Term. This Agreement shall continue until the earlier of termination by Deepwave or Licensee as provided below.

8.2. Termination by Licensee. Licensee may terminate the License at any time, for any reason. Licensee shall not be entitled to any refund if a License is terminated.

8.3. Termination by Deepwave. Deepwave may terminate this Agreement and the License granted hereunder by written notice to Licensee if Licensee materially breaches any term of this Agreement, including failure to pay any License fees due, and Licensee has not cured such breach within thirty (30) days of written notification; however, if Licensee's breach is incapable of cure (such as any breach of Sections 2, 3 or 10), Deepwave may terminate immediately upon written notice to Licensee. Additionally, Deepwave may immediately terminate this Agreement and the License if, after requesting and failing to receive from the Licensee adequate assurances of compliance with the terms of this Agreement, Deepwave reasonably believes that Licensee is or is intending to breach any material term of this Agreement. If Licensee or any of its affiliates commences or participates in any legal proceeding against Deepwave challenging or asserting any Intellectual Property Rights in or against the Application, then Deepwave may, without waiving any other legal rights or remedies available to it, immediately terminate this Agreement and the License. In the event Deepwave terminates this Agreement, you acknowledge that Deepwave may remotely terminate Licensee's ability to access and use the Application.

8.4 Suspension. In addition to the termination rights granted to Deepwave in Section 8.3, Deepwave may remotely suspend Licensee's ability to access and use the Application in the event it reasonably determines that Licensee is breaching or intends to breach this Agreement.

8.5. Additional Termination Rights. In the event that Deepwave reasonably believes that the Application may infringe, violate or misappropriate the Intellectual Property Rights of a third party, then Deepwave may, in its sole discretion, immediately terminate this Agreement for its convenience.

8.6 Effect of Termination. Upon termination for any reason, Licensee shall promptly and permanently erase all copies of the Application in Licensee's possession or control, or promptly provide written certification of the same to Deepwave.

8.7. Survival. The terms of this Agreement, which by their nature are intended to survive termination of this Agreement, shall survive, including Sections 3, 4, 5, 7, 8.6, 12, 14, 15, 16, 17, 20, and 21.

  1. Publicity. Licensee may not, without Deepwave's prior written consent use Deepwave's name, trademarks, service marks, logos, or other designs of Deepwave or its licensors in any advertising, promotional literature or any other material, whether in written, electronic, or other form, that is distributed to any third party or made publicly available.

  2. Export Control. The Application is subject to United States export laws and regulations. Licensee agrees that it will not ship, transfer or export the Application into any country, or use the Application in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. Licensee represents and warrants that it is not a resident or citizen of any country currently embargoed by the U.S. and that it's not otherwise prohibited from receiving the Application.

  3. Federal Acquisition. This provision applies to all acquisitions of the Application and Documentation by, for, or through the federal government of the United States. By accepting delivery of the Application or Documentation, the government hereby agrees that this software or documentation qualifies as commercial computer software or commercial computer software documentation as such terms are used or defined in FAR 12.212, DFARS Part 227.72, and DFARS 252.227-7014. Accordingly, the terms and conditions of this Agreement and only those rights specified in this Agreement, shall pertain to and govern the use, modification, reproduction, release, performance, display, and disclosure of the Application and Documentation by the federal government (or other entity acquiring for or through the federal government) and shall supersede any conflicting contractual terms or conditions. If this License fails to meet the government's needs or is inconsistent in any respect with federal procurement law, the government agrees to return the Application and Documentation, unused, to Deepwave.

  4. Taxes and Duties. Absent appropriate exemption certificates or other conclusive proof of tax exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this Agreement, excluding taxes based on Deepwave's income.

  5. Assignment. Licensee may not assign or otherwise transfer this Agreement, except to a third party that acquired the Hardware from Licensee.

  6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DEEPWAVE AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION OR THIS AGREEMENT ( INCLUDUING WITHOUT LIMITATION ANY LOST PROFITS OR OTHER DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL OR THE COST OF PROCURING SUBSTITUTE PRODUCTS), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL DEEPWAVE'S AND ITS AFFILIATES' TOTAL CUMULATIVE LIABILITY FOR ANY CLAIM UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY LICENSEE TO DEEPWAVE FOR THE LICENSE AND ANY RELATED SUPPORT AND MAINTENANCE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.

  7. Representations and Warranties.

    15.1 Mutual Representations and Warranties. Each of Deepwave and Licensee represents and warrants to the other that (a) it has the authority to enter into this Agreement and (b) its performance under this Agreement and the rights of the other party to perform under this Agreement do not violate or conflict with any other contract to which it is a party or any other obligation.

    15.2. Limited Performance Warranty. Deepwave warrants, for a period of ninety (90) days from either (a) Licensee's acceptance of the installation and configuration of the Application, if installed by Deepwave pursuant to a separate agreement or (b) in all other instances, License's first use of the Application, the Application will materially conform to the description of the Application's operation in the Documentation (the "Performance Warranty"). In the event of a breach of the Performance Warranty, Licensee's exclusive remedy and Deepwave's sole liability shall be (a) if Licensee has a valid and current Support and Maintenance subscription, having Deepwave provide Support and Maintenance with respect to the defective Application or (b) if Licensee does not have a valid Support and Maintenance Subscription, terminating the license and receiving a pro rata refund of any fees paid for the License

  8. Disclaimer. Except for warranties expressly set forth in Section 15, the Application and all Documentation are delivered "as is" and Deepwave makes no additional express or implied warranties. Deepwave hereby expressly disclaims any and all representations, warranties, or other terms of any kind or nature concerning the Applications and Documentation (including, without limitation, any with regard to infringement, merchantability, quality, accuracy, or fitness for a particular purpose or Licensee's purpose). Deepwave also expressly disclaims any warranties that may be implied from usage of trade, course of dealing, or course of performance. Except for the express warranties stated in Section 15 of this Agreement, the Applications and Documentation are provided with all faults, and the entire risk of satisfactory quality, performance, and accuracy is with Licensee. Deepwave does not warrant that the Applications and Documentation will operate without interruption or be error free. Licensee accepts responsibility for its use of the Application and the results obtained from its use.

  9. Indemnification.

    17.1 By Licensee. Licensee will defend, indemnify, and hold harmless Deepwave and its licensors, and their respective officers, directors, employees, and agents from and against any third party losses, judgments, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of any third party claim or demand based on or arising from, out of or in connection with (i) Licensee's breach of this Agreement or (ii) the use of the Application and Documentation.

    17.2 By Deepwave. Deepwave shall defend, indemnify, and hold Licensee and its officers, directors, employees, and agents from and against any and all third party losses, judgments, damages, liabilities, cost and expenses (including reasonable attorneys' fees) arising out of or relating to a third party allegation that the Application infringes, misappropriates or violates the Intellectual Property Rights of any third party. Notwithstanding the foregoing, Deepwave shall have no obligations under Section 17.2 if the alleged infringement arises from or relates to: (a) customizations, enhancements or modifications of the Application not provided by Deepwave; (b) use of the Application with software, hardware, firmware, processes, data or content not provided by Deepwave; (c) use of the Application in a manner other than that specified in the applicable Documentation.

    17.3 Indemnification Procedure. The obligations of an indemnifying party under this Section 17 ("Indemnifying Party") are conditioned on the indemnified party ("Indemnified Party") (i) promptly giving written notice of the claim to the Indemnifying Party (provided that any failure to promptly give notice shall only relieve the Indemnifying Party of its indemnification obligation to the extent it is prejudiced thereby); (ii) giving the Indemnifying Party sole control of the defense and settlement of the claim (provided that Indemnifying Party must obtain the Indemnified Party's prior written consent to any settlement that does not unconditionally release the Indemnified Party of all liability or that contains obligations other than the payment of sums covered by the Indemnifying Party's indemnification obligation); (iii) providing to the Indemnifying Party all reasonable information and assistance, at the Indemnifying Party's reasonable expense; and (iv) not compromising or settling such claim without the Indemnifying Party's prior written permission, which shall not be unreasonably withheld, delayed or conditioned.

    17.4 THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 17 CONSTITUTE THE ENTIRE OBLIGATION OF DEEPWAVE AND THE EXCLUSIVE REMEDY OF LICENSEE RELATING TO ALLEGATIONS THAT THE APPLICATION INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

  10. License Keys and Statistics. The Application may contain technology for license management and for the prevention of unlicensed use. Additionally, Licensee acknowledges and agrees that Deepwave may generate statistical or performance information relating to Licensee's use of the Application ("Usage Statistics"). Deepwave shall own all right, title, and interest in the Usage Statistics and may use Usage Statistics for any purpose, provided that it will only disclose information relating to Licensee's use of the Application on an aggregate and anonymous basis.

  11. Recommendations. From time to time, Licensee may communicate to Deepwave recommendations or suggestions of new software functionality or ways to improve or change the Application ( collectively, "Recommendations"). To the extent not otherwise owned by Deepwave pursuant to this Agreement, Licensee hereby grants to Deepwave a worldwide, perpetual, irrevocable, sublicensable, transferable, fully-paid up, royalty free license to use the Recommendations for any purpose.

  12. Governing Law; Jurisdiction. This Agreement shall be interpreted, enforced, and construed and governed in all respects by the laws of the State of Delaware, United States of America, without regard to its conflicts of law provisions. Both parties consent to the exclusive jurisdiction of the federal and state courts located in the State of Delaware and consent to the service of process, pleadings and notices in connection with any and all actions initiated in such courts. The parties agree that a final judgment in any action or proceeding in State of Delaware shall be conclusive and binding and may be enforced in any other jurisdiction.

  13. General.

    21.1 Equitable Relief. Licensee acknowledges and agrees that monetary damages would not be a sufficient remedy for Licensee's breach of this Agreement and that Deepwave is entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief as may be deemed proper by any court of competent jurisdiction without the necessity of posting a bond or proving actual damages, irreparable injury or lack of a remedy at law.

    21.2 Severability. The unenforceability of any provision of this Agreement shall not impair the enforceability of any other part of this Agreement. If any provision of this Agreement is invalid or unenforceable, in whole or in part, then this Agreement is deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties.

    21.3 U.N. Convention. The parties agree that neither the U.N. Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act, or any version thereof, in any form ("UCITA"), shall apply to this Agreement. To the extent that UCITA is applicable by reason of its adoption in a state, the parties agree to opt out of the applicability of UCITA pursuant to their Opt-Out provision(s).

    21.4 Independent Contractors. Deepwave and Licensee are independent contractors and this Agreement will not establish any relationship of partnership, joint venture or agency between Deepwave and Licensee. Neither Party has the power or authority to bind the other.

    21.5 No Third Party Beneficiaries. No provisions of this Agreement are intended, nor shall they be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any other party with respect to the terms of this Agreement.

    21.6 Headings. The inclusion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

    22.7 Entire Agreement. This Agreement and any exhibits incorporated to this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by Licensee are null, void, and invalid.

    22.8 Amendment; Waiver. Any amendment or waiver under this Agreement shall be in writing and signed by representatives of both parties. The failure of a party at any time to require performance of any obligations of the other party shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.