END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is a contract between you (“you” or “your” (whether capitalized or not)) and EVERYWHERE Communications, Inc. (“EVERYWHERE”), for your use of the Products and Services (as defined herein). The term “you” also includes Authorized Users.
PLEASE READ THIS AGREEMENT CAREFULLY. EVERYWHERE PROVIDES THE PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE "ACCEPT" BUTTON OR BOX OR OTHER MEANS PROVIDED FOR ACCEPTANCE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY WHO ENTERED INTO THE COMMERCIAL AGREEMENT WITH EVERYWHERE AND BIND SUCH PARTY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EVERYWHERE WILL NOT AND DOES NOT LICENSE THE PRODUCTS AND SERVICES TO YOU AND YOU MUST NOT DOWNLOAD OR INSTALL THE PRODUCTS AND SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCTS AND SERVICES THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF EVERYWHERE'S PRODUCTS AND SERVICES.
1. Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1:
“Airtime” means the Iridium mobile satellite services powered by Iridium’s constellation of low-earth orbiting (LEO) satellites, the ground network and Iridium communication equipment.
“Authorized User” means any individual person who is licensed to use the Products and Services and who is designated by you as being entitled to use the Products and Services.
“Charges” means the service fees and other charges paid by Commercial Party to EVERYWHERE for use of the Products and Services under the Commercial Agreement.
“Commercial Agreement” means the agreement (including all ordering documents issued thereunder) entered into between the Commercial Party and the Retailer that covers, among other things, the commercial terms of the use of the Products and Services including, but not limited to, the Charges.
“Commercial Party” means the party that paid or pays the Charges that enables your use of the Products and Services.
“Device” means a mobile device capable of receiving and transmitting satellite signals on the Iridium satellite system.
“Documentation" means user manuals, technical manuals, and any other materials provided by EVERYWHERE, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Products and Services.
“EVERYWHERE App” means an Android or iOS smartphone application, purpose built for enterprise and government entities with employees on-the-go that operates in standalone mode when accessing Wi-Fi, using data from wireless cellular providers, or it may be paired via Bluetooth with an EVERYWHERE Device to provide global connectivity and communications.
“EVERYWHERE Device” means a Device manufactured and sold by you and used in connection with the EVERYWHERE Hub as described in the Commercial Agreement.
“EVERYWHERE Hub” means the online hosting services, owned, operated or controlled by EVERYWHERE consisting of various infrastructure components, including but not limited to servers, website portal, networking components, system software, internet access, and content all as more specifically defined in Exhibit A (Products, Services and Airtime Description).
“Information” means the information transmitted to you via the Products and Services.
“Products” mean the EVERYWHERE Device and/or the EVERYWHERE App to the extent they are being licensed to you under the Commercial Agreement.
“Retailer” means the party that receives the Charges from the Commercial Party and entered into the Commercial Agreement with the Commercial Party.
“Services” means (i) the EVERYWHERE Hub and/or Airtime to the extent they are being licensed to you under the Commercial Agreement.
“Smartphone” means an Android or iOS smartphone capable of running the EVERYWHERE App.
“Specifications” means the Specifications for the Products and Services as defined in the Commercial Agreement.
2. License Conditioned Upon Agreement To Terms. EVERYWHERE and its licensors grant to you of the licenses to use the Products and Services is conditioned upon your agreement to the terms and conditions set forth in this Agreement.
3. Products and Services Not Error-Free. You acknowledge that the Products and Services may be interrupted from time to time. You further acknowledge that the Products and Services are not error-free. EVERYWHERE and its licensors cannot accept any responsibility under this Agreement for the functioning of your Smartphone with respect to the Products and Services.
4. Suspension of Use. EVERYWHERE and its licensors will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by you, or any individual under your control, in their use of the Products and Services, to suspend access by you to the Products and Services. You understand that EVERYWHERE and its licensors may be required by law enforcement agencies to disclose information regarding your use of the Products and Services and that EVERYWHERE and its licensors will comply with such requests.
5. License Grant. Subject to and conditioned upon payment of the Charges and your strict compliance with all terms and conditions set forth in this Agreement and the Commercial Agreement, EVERYWHERE grants to you during the term specified for use under the Commercial Agreement the following licenses. Your license shall be for your own use and not for resale to third parties. EVERYWHERE reserves all rights not expressly granted under this Agreement.
5.1 EVERYWHERE Hub Access License Grant. EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, right to access and use the EVERYWHERE Hub (but not create derivative works thereof) in accordance with the Specifications (an “Hub Access License”). You shall use the EVERYWHERE Hub only with EVERYWHERE Devices and not use any other Devices in connection with the EVERYWHERE Hub unless expressly approved in writing by EVERYWHERE. No license is granted under the Hub Access License to copy or use the software that supports the EVERYWHERE Hub, except in connection with the EVERYWHERE Hub.
5.2 EVERYWHERE App License Grant. If you have been given a license under the Commercial Agreement to the EVERYWHERE App (an “EVERYWHERE App License”), then EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, license to use, execute, and copy the EVERYWHERE App (but not create derivative works thereof) on Smartphones in accordance with the Specifications. No license is granted under this EVERYWHERE App License to access, copy, or use the source code to the EVERYWHERE App.
5.3 EVERYWHERE Device License Grant. If you have been given a license under the Commercial Agreement to an EVERYWHERE Device (an “EVERYWHERE Device License”), then EVERYWHERE grants you a limited, revocable, nontransferable, and nonexclusive, without the right to sublicense, license to use and execute the software embedded within the EVERYWHERE Devices (but not create derivative works thereof) on EVERYWHERE Devices in accordance with the Specifications. FCC regulations prohibit using the EVERYWHERE Device in a civil aircraft unless the EVERYWHERE Device has a direct physical connection to the aircraft cabin or cockpit communications system. No license is granted under this EVERYWHERE Device License to access, copy, or use the source code to the software embedded within the EVERYWHERE Devices.
5.4 Iridium® Access License Grant. If you have been given a subscription under the Commercial Agreement to access the Iridium satellite network (an “Iridium Access License”), then EVERYWHERE shall supply the Iridium airtime (“Airtime”) to you on a limited, revocable, nontransferable, and nonexclusive basis, without the right to sublicense, strictly in connection with your use of your EVERYWHERE Device and/or the EVERYWHERE App, all in accordance with the Specifications. You agrees not to use the Airtime: (i) to abuse or misuse any emergency services; (ii) to send messages that are offensive, defamatory, abusive or obscene or intended to harass; (iii) for any purpose in violation of law; (iv) in any manner that infringes or misappropriates third-party rights; or (i) in any manner which overloads or unreasonably interferes with the EVERYWHERE Hub or the Iridium satellite systems.
6. Limitations on Use. No license is given to you to the source code embedded within the Products or underlying the Services. Without the express written authorization from EVERYWHERE, you shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Products or Services (including the Documentation) for any purpose other than as specified in this Agreement or the Commercial Agreement; (ii) decompile, disassemble, re-program, analyze, reverse engineer, decode, or unlock any of the Products or Services (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein or the Commercial Agreement, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Products or Services; (iv) use the Products or Services to create a service bureau, timesharing arrangement, or application service provider; (v) modify, enhance, alter, adapt, translate, prepare derivative works of all or any portion of the Products or Services or attempt to do so; (vi) remove, obscure, destroy or alter EVERYWHERE’s or its licensors’ product identification, copyright notices, trademarks, trade secrets or other proprietary rights notices affixed to or contained within the Products, Services or Documentation; (vii) permit the Products or Services to be used, examined, reviewed or inspected by others, other than by Authorized Users, auditors or governmental agencies as required by law; (viii) disclose the results of any benchmark or evaluation of the Products or Services to any third party (whether or not obtained with EVERYWHERE’s assistance) without EVERYWHERE’s prior express written consent; (ix) use the Products, Services, Documentation or any information contained therein or otherwise provided by EVERYWHERE or its licensors for the purposes of developing, or having developed, any products or services competitive with the Products or Services; (x) use, authorize or allow Authorized Users to use the Products or Services while driving any motorized vehicle; (xi) incorporate, link, or distribute the Products or Services with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Products or Services (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. You shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities, or attempting to do so. Should it become known to you that an Authorized User has attempted to do any of the aforementioned activities, you shall immediately notify EVERYWHERE and direct such Authorized User to cease and desist in the activity.
7. Other Dependencies and Limitations.
7.1 EVERYWHERE Hub Dependencies. EVERYWHERE does not own or control the cell phone and/or email service providers who receive the email and SMS messages generated from the EVERYWHERE Hub, and EVERYWHERE is not responsible for any delays by the email and cell phone providers related to these messages. The EVERYWHERE Hub relies on wireless communication networks and the Global Positioning System ("GPS") satellite network. The EVERYWHERE Hub functionality that uses location Information about your EVERYWHERE Device that only works if GPS satellite signals are unobstructed and available in that place. The routing data EVERYWHERE Hub provides is based on the most current map Information available to EVERYWHERE, but the Information may be inaccurate or incomplete. For example, the route data may not include Information about one-way roads, turn restrictions, construction projects, seasonal roads or new roads. The suggested route may use a road that is closed for construction or a turn that is prohibited by signs at the intersection. Suggested routes also do not consider whether the areas traveled are residential, commercial, or mixed and do not factor in the availability of public or private goods. Therefore, you should use good judgment, obey traffic and roadway laws and instructions and evaluate whether following the routing data provided through EVERYWHERE Hub is safe and legal based on the current conditions.
7.2 Ownership Rights in Satellite Telephone Numbers. EVERYWHERE and its licensors retain all ownership interest in the assigned satellite telephone number provisioned by EVERYWHERE. You have no ownership rights to any satellite telephone number provisioned by EVERYWHERE and EVERYWHERE reserves the right to assign, designate, or change your satellite telephone numbers at any time with prior notice to you. You will not transfer or attempt to transfer satellite telephone numbers obtained from EVERYWHERE to any third party or another carrier.
7.3 Airtime Availability is Not Unlimited. The Airtime is only available on the Iridium satellite network. The Airtime may become limited or temporarily unavailable without notice from time to time. EVERYWHERE does not own or control the service providers that operate the links between the satellite ground stations, including satellite antennas and supporting equipment, and the satellites, nor does EVERYWHERE own or control the Iridium satellite constellation, and cannot be responsible for any service interruptions that are associated with the Iridium satellite constellation or ground stations and the interconnecting networks. Iridium satellites are wireless and requires a clear line of sight toward the satellite; therefore, the Airtime is inherently subject to transmission and reception limitations caused by: (i) your location, including conditions that obstruct the line of sight between your EVERYWHERE Device and the satellite systems; (ii) the condition of the satellite systems and ground stations; (iii) the condition of the your EVERYWHERE Device; and (iv) weather conditions, atmospheric conditions, magnetic interference, environmental, and other conditions beyond EVERYWHERE’s control. AIRTIME IS NOT AVAILABLE AT ALL GLOBAL LOCATIONS, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR AT ALL TIMES. The area you are located in may affect the Airtime that EVERYWHERE can provide to you, including routing services.
7.4 Causes of Airtime Failure. Airtime may not work properly if:
a) You have not maintained your EVERYWHERE Device in good working order;
b) You do not comply with all applicable laws;
c) You try to add, connect or modify any equipment or software in the EVERYWHERE Device (such as plugging devices into the EVERYWHERE Device’s electrical system or diagnostic port);
d) The Device is not compatible with the Airtime; or
e) Other problems arise that EVERYWHERE cannot control that interfere with the delivery or quality of the Airtime, such as hills, tall buildings, tunnels, weather, damage to EVERYWHERE Device, or network congestion or jamming.
7.5 Delays or Failed Performance. EVERYWHERE and its licensors are not responsible for any delay or failure in performance that (a) may have been prevented by taking reasonable precautions or (b) is caused by events of Force Majeure.
7.6 Data Transmission Use and Dropped Calls. Due to the technical nature of data setups and the inherent sophistication of data transmission through a variety of satellite and other operating systems, EVERYWHERE makes no representation as to the success of voice or data calls made using Airtime. You agrees that all data call attempts regardless of ultimate successful transmission and termination will be paid for and no credits will be given in the event of dispute of this nature. Along with potential incorrect use (i.e.: next to a building/obstruction), all satellite systems (including low earth orbiting satellite constellations) have inherent flaws and anomalies that can create dropped calls of either voice or data nature. Dropped calls will not be credited.
7.7 Access and Passwords. After the EVERYWHERE Hub is ready for use by you, EVERYWHERE shall issue (a) a link to you that will enable you to access the EVERYWHERE Hub; and (b) a password to access the EVERYWHERE Hub. You are responsible for accessing the EVERYWHERE Hub in accordance with the terms of this Agreement and maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by you and any Authorized Users. You are entirely responsible for all activities that occur under your account and all charges incurred in connection with use of the EVERYWHERE Hub using your passwords. You shall immediately notify EVERYWHERE of any unauthorized use of your account, including, without limitation, each password of an Authorized User accessing the EVERYWHERE Hub by means of your account, or any other breach of this Agreement or any security breach known to you. EVERYWHERE shall have no liability for any loss or damage arising from your failure to comply with these requirements.
8. SOS Monitoring Services. IN NO EVENT DOES THIS AGREEMENT CREATE A DUTY TO RESCUE YOU OR ANY THIRD PARTY AS A RESULT OF ANY SOS EMERGENCY SIGNAL RECEIVED BY EVERYWHERE.
8.1 The Customer Emergency Call Center. If the Commercial Agreement indicates that the Commercial Party has contracted to have route emergency signals generated by a EVERYWHERE Device (a “SOS Emergency Signal”) to a call center designated by the Commercial Party (the “Customer Emergency Call Center”), then when the EVERYWHERE Hub receives the SOS Emergency Signal, the EVERYWHERE Hub will route the SOS Emergency Signal to the Customer Emergency Call Center. The Commercial Party is solely responsible for providing EVERYWHERE with all necessary and correct contact information, including updates to such information, to enable the EVERYWHERE Hub to communicate with the Customer Emergency Call Center. EVERYWHERE transmits SOS Emergency Signals received, along with applicable registration data information and available location coordinates, to the Customer Emergency Call Center.
8.2 SOS Emergencies Handled by GEOS. If the Commercial Agreement indicates that the Commercial Party has contracted to receive SOS emergency monitoring services from a third-party provider, GEOS Worldwide, Ltd. or its affiliate(s) (collectively, “GEOS”), then when the EVERYWHERE Hub receives emergency signals generated by your EVERYWHERE Device (a “SOS Emergency Signal”), then the EVERYWHERE Hub will route the SOS Emergency Signal to the GEOS International Emergency Response Coordination Center (the “IERCC”). The provision of SOS emergency monitoring services is subject to the terms of this Agreement. EVERYWHERE reserves the right to disclose personal and location data to its third-party service providers, including GEOS, and/or to competent legal authority, as well as remotely activate SOS features when notified by competent legal authority that a distress situation exists. EVERYWHERE intends that the IERCC will be available at all times in all locations where a Device works; however, it is possible that at some times and some locations, the IERCC will not receive SOS Emergency Signals or that SOS Emergency Signals will be delayed. The emergency responders shall determine when, how, and even if, to conduct a search and rescue in accordance with their standard policies and procedures, subject to such constraints as operational limitations, available resources, technical feasibility, meteorological conditions, medical and/or safety concerns whether for you or the emergency responders.
8.3 SOS Monitoring. EVERYWHERE transmits SOS Emergency Signals received, along with applicable registration data information and available location coordinates, to the IERCC. The IERCC maintains a database of emergency responders in regions throughout the world (the “IERCC Database”), and provides SOS Emergency Signal monitoring twenty-four (24) hours a day, seven (7) days a week and 365 days a year. Upon receipt of an SOS Emergency Signal, IERCC personnel will: (i) contact, if available, the primary and secondary contacts identified by the Commercial Party in its registration data to attempt to validate the SOS Emergency Signal, (ii) use the IERCC database to identify appropriate emergency responder(s) according to available location coordinates; (iii) contact the appropriate emergency responder(s) and inform them of the relevant facts in GEOS’s possession (including the registration data information and/or location coordinates); (iv) if you are traveling outside of your home territory, and it is consistent with GEOS’s procedures, contact your Embassy consistent with the registration data, either in the location identified by the Location Information or their Washington, D.C. based Embassy, and provide them all relevant facts in GEOS’s possession; and, (v) provide updates of location coordinates as available to the identified emergency responder. Upon contacting the emergency responder(s) and/or, as appropriate, the applicable embassy, and informing them of all relevant facts, EVERYWHERE and GEOS are released from all further responsibility and/or obligation to take any further action whatsoever. Should GEOS have reasonable cause to believe that an emergency condition does not exist, GEOS reserves the right to solely contact the primary and secondary contacts identified by the Commercial Party.
8.4 False SOS Emergency Transmissions. The Commercial Party is solely responsible for any charges that may be assessed by emergency responders for either false SOS Emergency Signals and/or in relation to search and rescue activities resulting from your transmission of a SOS Emergency Signal. Should you deliberately or negligently misuse the SOS Emergency Service, GEOS reserves the right to assess a fee in order to recoup their costs in relation to responding to such misuse. Negligent and deliberate misuse includes, but is not limited to, pressing the SOS button to “see if it works” or otherwise knowingly pressing the SOS button when no emergency situation exists. Should it be determined by EVERYWHERE that you have deliberately or negligently misused the SOS Emergency Service, EVERYWHERE shall provide the Commercial Party’s credit card information on record to GEOS. GEOS shall then, without further notice, bill the credit card the appropriate fee, calculated at a rate of $340 per hour, or stated part thereof, for a minimum charge of one (1) hour and maximum charge of two (2) hours, for each such false SOS Emergency Signal event, and the Commercial Party shall be responsible to pay any such fee.
8.5 GEOS Search and Rescue Membership. If the Commercial Party purchased the optional Search and Rescue membership provided by GEOS (“GEOS SAR Membership”) services, such Search and Rescue services shall be subject to the terms of a separate agreement with GEOS, located at http://www.geosalliance.com/geos-services/worldwide-search-and-rescue/. If the optional GEOSSAR Membership is purchased, such contract will be directly between the Commercial Party and GEOS. EVERYWHERE is not a party and in no way liable to any party to such contract for any damages or claims that may arise in connection with such optional Search and Rescue service. The terms and conditions are located at: http://www.geosalliance.com/geos-services/worldwide-search-and-rescue/services/worldwide-search-and-rescue/.
9. Open Source. Certain Products contain certain Open Source Software listed in Schedule A (Open Source Software). Usage of these Products is subject to certain rights and responsibilities with respect to the Open Source Software and are governed according to the terms of the applicable Open Source License specified in Schedule A. “Open Source Software” means software made available to others under the terms of an Open Source License; “Open Source License” means a software license that includes, but is not limited to, terms that: (a) permit distribution or redistribution of the software, including free of charge and for sale, by others without royalty or fee and allows for such distribution/redistribution to include source code and compiled code; (b) permits modifications, compilations, and derived works be created from the software and be distributed under the same terms as the original software; or (c) attach to the software and applies to all persons, entities, groups, organizations and institutions (the “Recipients”) to whom the software is distributed and/or who redistribute the software without the need for the Recipients to execute or otherwise acquire an additional license.
11. Collection and Use of Data. You acknowledge that EVERYWHERE may, directly or indirectly through the Products and Services collect and store information regarding use of the Products and Services and about equipment on which the Products and Services are installed or through which it otherwise is accessed and used, through (i) the provision of maintenance and support services; and (ii) security measures included in the Products and Services. You agree that EVERYWHERE may use such data for any purpose related to any use of the Products and Services by you or on your equipment, including but not limited to (x) improving the performance of the Products and Services or developing updates thereto; and (y) verifying your compliance with the terms of this Agreement and enforcing the EVERYWHERE's rights, including all Intellectual Property Rights in and to the Products and Services.
12. Compliance With Laws. You agree to abide by all local, state, national, and international laws and regulations applicable to your use of the Products and Services including, without limitation, all licensing, intellectual property and privacy laws. If you desire to operate the Products, including but not limited to your EVERYWHERE Device, while in foreign territories, then you shall be required to obtain any and all licensing or approvals that may be required to operate within that foreign territory. Notwithstanding any other provision of this Agreement or the Commercial Agreement, EVERYWHERE does not guarantee or warrant any authority to radiate from foreign territories other than those allowing trans-border operations of satellite equipment and EVERYWHERE does not represent that to do so will be lawful in all cases and you assume all responsibility for complying with the laws of each foreign territory in which you operate the Products and Services.
13. Use By Authorized Users. You will ensure that each Authorized User complies with the terms of this Agreement and the Documentation, as may be amended, and any instruction issued by EVERYWHERE and its licensors with respect to the use of the Products and Services.
14. No Maintenance and Support. This Agreement confers no maintenance or support obligations upon EVERYWHERE. Any maintenance or support that may be available to you, if any, may be provided under the terms of the Commercial Agreement.
15. EVERYWHERE Intellectual Property Rights. You acknowledge that the intellectual property rights underlying the Products, Services, and Documentation (collectively, the “EVERYWHERE IP”) is owned by, and shall remain the sole property of EVERYWHERE and its licensors, that the EVERYWHERE IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by EVERYWHERE and its licensors, and that EVERYWHERE and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the EVERYWHERE IP worldwide including, without limitation, any derivative works. This Agreement does not convey to you title or ownership of the Intellectual Property Rights underlying the EVERYWHERE IP, but only a right of limited use in accordance with this Agreement. You acknowledge that the EVERYWHERE IP provided by EVERYWHERE pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of EVERYWHERE or its licensors.
16. WARRANTY DISCLAIMERS
16.1 GENERAL DISCLAIMER OF WARRANTY. SUBJECT ONLY TO ANY WARRANTY RIGHTS THAT YOU MAY HAVE UNDER THE COMMERCIAL AGREEMENT, EVERYWHERE AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES, TERMS, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCTS AND SERVICES, AND NON-INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE PRODUCTS AND SERVICES ARE ACCURATE OR COMPLETE, AND ALL SUCH WARRANTIES ARE DISCLAIMED HEREBY. EVERYWHERE MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS. THE PRODUCTS AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. YOU AGREE THAT NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOUR ONLY REMEDIES IN RESPECT OF ANY CLAIM WHATSOEVER THAT YOU MAY WISH TO BRING AGAINST EVERYWHERE AND ITS LICENSORS ARE AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR UNDER THE COMMERCIAL AGREEMENT. EVERYWHERE AND ITS LICENSORS MAKE NO REPRESENTATIONS THAT THE PRODUCTS, SERVICES, AND AIRTIME WILL BE ERROR FREE, FREE FROM DATA LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND EVERYWHERE AND ITS LICENSORS DISCLAIM ANY LIABILITY RELATING THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY REPRESENTATIVES OF EVERYWHERE SHALL CREATE A WARRANTY.
16.2 DISCLAIMER OF WARRANTY FOR EHUB. YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF EHUB IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EHUB IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT EHUB WILL MEET YOUR REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY, SUITABILITY OR ACCURACY OF EHUB, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF EHUB. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF EHUB. EHUB IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF EHUB COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
16.3 DISCLAIMER OF WARRANTY FOR AIRTIME. YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF AIRTIME IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIRTIME IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT AIRTIME COVERAGE WILL MEET YOUR REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY OF AIRTIME, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF THE SATELLITE SYSTEMS USED BY EVERYWHERE TO TRANSMIT DATA TRANSMISSIONS, INCLUDING SOS EMERGENCY SIGNALS AND/OR HELP TRANSMISSIONS FOR ASSISTANCE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF AIRTIME.
16.4 DISCLAIMER FOR EMERGENCY SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVERYWHERE AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY THE AIRTIME OR EVERYWHERE HUB’S ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS OR FAILURES IN THE TRANSMISSION OF DATA (INCLUDING BUT NOT LIMITED TO SOS EMERGENCY SIGNALS), ANY COMPUTER VIRUS, ACTS OR OMISSIONS OF THIRD PARTIES THAT DAMAGE THE SATELLITE NETWORK OR IMPAIR SATELLITE SERVICE, DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL OR SOS EMERGENCY SIGNALS TO ANY ENTITY, INCLUDING ANY CUSTOMER EMERGENCY CALL CENTERS, THE IERCC, OR ANY OTHER EMERGENCY CALL SERVICE, OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.
17. LIMITATION OF LIABILITY. EVERYWHERE AND ITS LICENSORS OR ANY THIRD PARTY SUPPLIER SHALL, UNDER NO CIRCUMSTANCES, HAVE ANY LIABILITY WHATSOEVER TO YOU OR ANY AUTHORIZED USERS FOR:
a) ANY INDIRECT OR CONSEQUENTIAL LOSS OR ANY LOSS OF ACTUAL OR ANTICIPATED PROFIT, REVENUE OR GOODWILL OR LOSS OF USE OF THE PRODUCTS AND SERVICES BY YOU OR FOR ANY OF YOUR LIABILITY TO ANY OTHER PARTY OF WHATEVER KIND HOWSOEVER ARISING (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS, ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PRODUCTS AND SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; OR CLAIMS FOR DAMAGES OR AWARDS OR OTHERWISE);
b) ANY OTHER LOSS OR DAMAGE SUFFERED BY YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND WHETHER AS A RESULT OF NEGLIGENCE OR OTHERWISE) EXCEPT TO THE EXTENT OF AN AMOUNT EQUAL TO THE ANNUAL RATE OF THE CHARGES FOR THE PRODUCTS AND SERVICES AS OF THE DATE THE CLAIM ARISES WITH RESPECT TO ANY ONE EVENT OR SERIES OF TWO OR MORE CONNECTED EVENTS;
c) ANY INACCURACIES, COMPLETENESS, DELAYS, FAILURES TO TRANSMIT, INTERRUPTIONS, TERMINATION OF INFORMATION, ERRORS OR OMISSIONS, THE CONTENT OF THE INFORMATION, LACK OF SECURITY IN DELIVERY OF THE INFORMATION, REGARDLESS OF CAUSE, IN THE INFORMATION; OR
d) ANY TECHNOLOGICAL, ELECTRONIC OR OTHER MALFUNCTIONING OF ANY TELECOMMUNICATIONS COMPUTER OR ELECTRONIC EQUIPMENT ON OR OVER WHICH ANY INFORMATION IS RECEIVED BY OR TRANSMITTED BY EVERYWHERE AND ITS LICENSORS.
18. Indemnification. You undertake to indemnify and hold EVERYWHERE, its licensors, suppliers, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Products and Services (collectively the “Indemnified Parties”) harmless from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the Products and Services.
19. Suspension. Upon EVERYWHERE’s reasonable belief that criminal or otherwise improper activity may be associated with your use of the Products, Services or Airtime, EVERYWHERE may, without incurring any liability, temporarily suspend or discontinue your use of the Services or Airtime.
20. Termination. EVERYWHERE may terminate this Agreement:
a) with immediate effect by written notice given by EVERYWHERE if EVERYWHERE’s agreement with a supplier or licensor of the Products or Services are terminated or restricted for any reason; or
b) with immediate effect by written notice given by EVERYWHERE or its licensors if you commit any material breach of any term of this Agreement that (in the case of a breach capable of being remedied) shall not have been remedied within five (5) business days of a written request to remedy same.
21. Upon Termination. Upon expiration or termination of this Agreement in whole or in part, all right to use the Services and Airtime ceases, any licenses set forth in this Agreement shall terminate, and you must uninstall and delete all components of the Products and Services supplied and, if requested by EVERYWHERE or its licensors, certify to EVERYWHERE or its licensors that such deletion occurred.
22. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred by you without the prior written consent of the EVERYWHERE. Any attempted assignment, delegation, sublicense or transfer by you without such written consent shall be void and of no effect. EVERYWHERE shall be free to assign its rights and obligations hereunder.
23. Export Regulation. The Products, Services, and Documentation are subject to United States export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Products, Services or Documentation to, or make the Products, Services or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products, Services or Documentation available outside the United States.
24. Force Majeure. EVERYWHERE shall not be liable to you or shall not be subject to termination of this Agreement for any delay, nonperformance, loss or damage because of reasons beyond EVERYWHERE’s reasonable control including, but not limited to, acts of God, natural casualties, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, labor or material shortages, strikes, communication systems failures, satellite failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, or transportation conditions (each a “Force Majeure Event”).
25. US Government Rights. The Products and Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are a US Government employee or any contractor therefor, the US Government shall receive only those rights with respect to the Products, Services, and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
26. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of the same state or commonwealth as set forth in the Commercial Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Any disputes arising hereunder shall be handled in accordance with the dispute resolution provisions of the Commercial Agreement. Notwithstanding the foregoing, you agree that in the event of any breach of any of the intellectual property rights set forth in this Agreement, EVERYWHERE may not have an adequate remedy in money or damages and shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. EVERYWHERE's right to obtain injunctive relief shall not limit its right to seek further remedies.
27. Miscellaneous Provisions. A failure or delay of EVERYWHERE to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. This Agreement may be updated from time-to-time by EVERYWHERE by its posting changes thereto on its website, located at https://everywhere-hub.com/terms/eula.html. The parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. Damages may be an inadequate remedy in the event of a breach by either party to this Agreement and that any such breach by either party may cause the other party great and irreparable injury and damage. Accordingly, both parties agree that the party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed by the parties (except for the Commercial Agreement which shall remain in full force). The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.