Last Revised: February 5, 2024 Ver: 4130
PLEASE READ THIS AGREEMENT CAREFULLY.
These Online Commercial Terms, in connection with the Ordering Document that references this Agreement, is a legally binding contract between EVERYWHERE Communications, Inc., a Delaware corporation (“EVERYWHERE”) with offices located at 30 West Street, Annapolis, Maryland 21401 USA and the other legal entity named on the Ordering Document that references this Agreement (“Customer”).
EVERYWHERE PROVIDES THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES SOLELY ON THE ONLINE COMMERCIAL TERMS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON OR OTHER MEANS PROVIDED FOR ACCEPTANCE OR USING THE PRODUCTS, SERVICES OR EVERYWHERE SATELLITE SERVICES, CUSTOMER AGREES TO (A) ACCEPT THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUCH PARTY TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, EVERYWHERE WILL NOT AND DOES NOT LICENSE THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES TO CUSTOMER AND CUSTOMER MUST NOT DOWNLOAD OR INSTALL THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES.
WHEREAS, EVERYWHERE offers a satellite hotspot Service enabling smartphone data applications to connect people and Internet of Things (IoT) operating everywhere;
WHEREAS, Customer desires to utilize certain aspects of the Products, Services, and EVERYWHERE Satellite Services offered by EVERYWHERE; and
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties agree as follows:
1. Definitions. EVERYWHERE and Customer collectively shall be referred to herein as the “Parties” and each individually as a “Party." The following terms used in this Agreement shall have the meanings set forth in this Section 1. Unless specifically stated otherwise, capitalized terms used in Exhibits and Ordering Documents shall have the meaning set forth in this Agreement.
“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party. A corporation or other entity shall be deemed to control another if it owns or controls directly or indirectly more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity or has the right to direct the management of such entity.
“Agreement” means these Online Commercial Terms, the attached Exhibits, and Ordering Documents.
“Airtime” means the satellite service which is powered by the Iridium constellation of low-earth orbiting (LEO) satellites, the ground network and Iridium communication equipment.
"Cellular Network” means, for purposes of this Agreement, a network of wireless carriers that enable the transmission of data including, but not limited to Messages, to and from mobile devices such as Smartphones.
“Commercial Device” means a Device that is capable of operating in connection with the EVERYWHERE Satellite Services. A Commercial Device may not be used in connection with the EMSS Iridium Government Gateway.
“Device” means a mobile device capable of receiving and transmitting satellite signals using Airtime.
“Documentation” means all End User documentation made available by EVERYWHERE to Customer and any succeeding changes thereto. The Documentation shall be considered a component of the Products, Services or EVERYWHERE Satellite Services. The Documentation, including all materials provided or made available online by EVERYWHERE and its Licensors is provided “AS IS” and “AS AVAILABLE” and without condition, endorsement, representation, or warranty of any kind by EVERYWHERE and its Licensors. EVERYWHERE and its Licensors assume no responsibility for any typographical, technical, or other inaccuracies, errors, or omissions in the Documentation.
“End User” means an authorized employee or other individual person who is designated by Customer as being licensed to use the Products, Services, and EVERYWHERE Satellite Services.
“EULA” means the terms and conditions of the End User license set forth at https://everywherecomms.com/pages/eula.
“EVERYWHERE Apps” mean the secure and encrypted mobile applications developed and\or licensed by EVERYWHERE that operate on Smartphones and are used in connection with the EVERYWHERE Hub. The EVERYWHERE App uses EVERYWHERE Intelligent Routing™ to seamlessly and automatically switch between Cellular Networks, WiFi and Airtime (when paired with a compatible Device) to utilize features such as Messaging, alert notifications, global SOS, advanced mapping with live location information, and other features as more fully described in Ordering Documents.
“EVERYWHERE Device” means a Device manufactured or resold by EVERYWHERE and used solely in connection with the EVERYWHERE Hub as described in Ordering Documents. An EVERYWHERE Device may NOT be used in connection with the EMSS Iridium Government Gateway.
“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 Ordering Documents.
“EVERYWHERE Satellite Service” means Airtime resold by EVERYWHERE that may NOT be used in connection with the EMSS Iridium Government Gateway.
“Exhibits” mean the documents attached hereto and incorporated by this reference. In the event of any inconsistency, the documents shall take precedence in the following order: Online Commercial Terms, Ordering Documents, all other Exhibits. Exhibits include, without limitation, the following:
Exhibit B: Protected Patents
Exhibit C: Open Source Software
Exhibit D: Factal Add-On Services
Exhibit E: Twilio SMS Add-On Services
“Factal Services” means the services used to provide Factal content through the EVERYWHERE Hub as described in more detail in the Specifications.
“FCC” means the U.S. Federal Communications Commission.
“Garmin” means Garmin Services, Inc.
“Licensor” means EVERYWHERE’s licensors or suppliers who provide products or services to EVERYWHERE that are either resold or sublicensed to Customer or used to facilitate the Products, Services, and EVERYWHERE Satellite Services under the terms of this Agreement.
“Marks” means the trade names, trade dress, trademarks, service marks, commercial symbols, domain names, brands, designs, logos and/or any other marks used to denote the owner or licensors as the source of the products and services.
“Message” means a message sent or received from a Device or an EVERYWHERE App through the EVERYWHERE Hub. Messages may be transmitted via Airtime or over the Cellular Network using SMS and other messaging and email systems.
“Order” means an Ordering Document that is provided by Customer that does not need to be executed by EVERYWHERE but is otherwise consistent with the provisions of Section 13 (Process for Orders). Orders typically include purchase orders provided by Customer.
“Ordering Documents” means any written document that places an order for Products, Services, EVERYWHERE Satellite Services and/or Training Services under the Terms of this Agreement. An Ordering Document may be styled as Orders, task order, purchase order, or other type of authorizing agreement.
“Privacy Policy” means the EVERYWHERE privacy policy set forth at https://everywherecomms.com/privacy-policy.
“Services” mean, if so specified in an Ordering Document: (i) EVERYWHERE Hub; (ii) Factal Services; (iii) Twilio SMS Services; and (iv) the Training Services. Services do not include EVERYWHERE Satellite Services.
“Smartphone” means a smartphone capable of installing and operating an EVERYWHERE App.
“Specifications” mean, as appropriate: (i) the specifications for the EVERYWHERE Devices as set forth in any applicable Ordering Documents; (ii) the specifications for the EVERYWHERE Hub set forth in any applicable Ordering Documents; (iii) the specifications for the EVERYWHERE Apps set forth in any applicable Ordering Documents; (iv) the specifications for the Factal Services set forth in Exhibit D (Factal Add-On Services) and any applicable Ordering Documents; (v) the specifications for the Twilio SMS Services set forth in Exhibit E (Twilio SMS Add-On Services) and any applicable Ordering Documents.
“Subscription Fees” means the subscription fees for Services as well as the EVERYWHERE Satellite Services.
“Subscription Period” means the period of time set forth in Ordering Documents during which those Services that are subject to Subscription Fees are being provided.
“Subscription Plan” means a subscription plan for Services set forth in any applicable Ordering Documents.
“Training Services” means services provided by EVERYWHERE and its authorized training consultants whereby EVERYWHERE shall train Customer employees in accordance with the curriculum and other training content (“Training Content”) agreed to between the Parties in Ordering Documents.
“Twilio SMS Services” means the Twilio Short Message Service (SMS) provided through the EVERYWHERE Hub as described in more detail in the Specifications.
2. Framework Agreement. This Agreement is a framework agreement that shall govern various transactions that flow from this Agreement. Ordering Documents shall document the Licenses and Specifications Products, Services, and EVERYWHERE Satellite Services provided directly to Customer for use within its own internal operations. Ordering Documents shall also document Training Services. This Agreement, absent Ordering Documents, does not obligate Customer to License or purchase any Products, Services or EVERYWHERE Satellite Services from EVERYWHERE. All Ordering Documents together with this Agreement shall each constitute an agreement between the Parties.
3.1 Agreement Term. This Agreement shall commence as of the date set forth on the Ordering Document to start use of the Products, Services, and EVERYWHERE Satellite Services, or if no such start date is specified on the Ordering Document (“Effective Date”), then the Agreement shall commence on the date of the Ordering Document (the “Term”).
3.2 Services Term. The term for the specific Subscription Period is set forth in each Ordering Document that begins on the commencement date of the applicable Subscription Period and remains in effect until the expiration of the initial Subscription Period specified in the applicable Ordering Document (the “Initial Subscription Period”), unless earlier terminated as provided herein. Unless the applicable Ordering Document says otherwise, the expiring Subscription Period shall automatically renew for an equal Subscription Period (each, a “Renewal Subscription Period”), unless either Party provides advance written notice of its intention not to renew the Subscription Period at least sixty (60) days prior to the end of the then-current Subscription Period (the “Renewal Notice Deadline”).
4. Appointments
4.1 EVERYWHERE’s Appointment as Service Provider. Customer hereby appoints EVERYWHERE, and EVERYWHERE hereby accepts appointment, as a service provider solely for purposes of implementing this Agreement and providing the Services and EVERYWHERE Satellite Services set forth in Ordering Documents.
5.1 EVERYWHERE Hub Access License Grant. If specified in an Ordering Document, and in consideration for Customer’s payment obligations for Subscription Fees set forth in Ordering Documents, EVERYWHERE grants Customer a limited, nontransferable, and nonexclusive right to access and use the EVERYWHERE Hub during the Subscription Period for the Services (“Hub Access License”) as set forth in the Ordering Document and in accordance with the Specifications. No license is granted under any Hub Access License to access, copy, or use the software that supports the EVERYWHERE Hub, except in connection with the Hub Access License.
5.2 EVERYWHERE App License Grant. If Customer has contracted with EVERYWHERE in an Ordering Document to license the EVERYWHERE Apps (an “EVERYWHERE App License”), then EVERYWHERE grants Customer in consideration for the Customer’s payment obligations for the EVERYWHERE App License, a limited, nontransferable, and nonexclusive right to use, execute, and copy the EVERYWHERE Apps (but not create derivative works thereof) on Smartphones during the Subscription Period for the EVERYWHERE App License as set forth in the Ordering Document and in accordance with the Specifications consistent with the provisions of this Agreement and Ordering Documents. No license is granted under this Agreement to access, copy, or use the source code to the EVERYWHERE Apps.
5.3 Limitations on Use. No license is given to Customer to the source code embedded within the Products or underlying the Services. Without the express written authorization from EVERYWHERE, Customer 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 and Ordering Documents; (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, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Products, Services or EVERYWHERE Satellite Services; (iv) except as expressly authorized herein, 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, destroy, obscure or alter EVERYWHERE’s or its Licensors’ product identification, copyright notices, Marks, trade secret or other proprietary rights notices affixed to or contained within the Products, Services or EVERYWHERE Satellite Services or Documentation; (vii) permit the Products, Services or Airtime or Documentation to be used, examined, reviewed or inspected by others, other than by Customer’s employees, auditors or governmental agencies as required by law; (viii) disclose the results of any benchmark or evaluation of the Products, Services or EVERYWHERE Satellite Services to any third party (whether or not obtained with EVERYWHERE’s assistance) without EVERYWHERE’s prior express written consent; (ix) use the Products or 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) authorize or allow End Users to use the Products, Services or EVERYWHERE Satellite Services while driving any motorized vehicle; (xi) attempt to circumvent or defeat the security or content usage rules contained in the Products or Services and\or use the Products or Services in violation of any law or third party rights; (xii) 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. Customer shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities or attempting to do so.
5.4 Open Source. Certain EVERYWHERE Apps contain the Open Source Software listed in Exhibit C (Open Source Software). Usage of EVERYWHERE Apps 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 Exhibit C. “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 Open Source 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 Open Source Software and be distributed under the same terms as the original Open Source Software; or (c) attach to the Open Source Software and applies to all persons, entities, groups, organizations and institutions (the “Recipients”) to whom the Open Source Software is distributed and\or who redistribute the Open Source Software without the need for the Recipients to execute or otherwise acquire an additional license.
5.5 End User License Agreement and Privacy Policies. Customer's use of the Products or Services by End Users is subject to the terms and conditions of the EULA and EVERYWHERE’s Privacy Policy as well as Garmin’s inReach privacy policy set forth at https:\\www.garmin.com\en-US\privacy\inreach\policy (the “Garmin Privacy Policy”). EVERYWHERE and Garmin collect, use, and share information from and about End Users and Products used by End Users, provided that EVERYWHERE does not share information with Garmin collected using Secure InReach Devices. The Privacy Policy and the Garmin Privacy Policy describe what EVERYWHERE and Garmin do with that information. End Users shall consent to the collection, use, and sharing of information described in the Privacy Policy and the Garmin Privacy Policy in any revisions thereto, which may be modified as described in those documents.
5.6 No License to Affiliates. Unless specified otherwise in an Ordering Document, any and all Licenses are granted to Customer and not, by implication or otherwise, to any Affiliate of Customer.
5.7 Reserved Rights. EVERYWHERE reserves all rights not expressly granted under this Agreement.
6.1 Scope and Performance of the EVERYWHERE Hub. EVERYWHERE will implement the EVERYWHERE Hub in accordance with the Specifications. EVERYWHERE will not be responsible for implementation delays or service degradations that are not within its control including, without limitation, implementation delays or service degradations caused by Customer, End Users, third-party service providers, the Cellular Network or any interconnecting communications carrier. Title to any communications equipment and computer hardware installed by EVERYWHERE in connection with the performance of the EVERYWHERE Hub will remain with EVERYWHERE and its Licensors.
6.2 EVERYWHERE Hub Dependencies. EVERYWHERE and its Licensors do not own or control the Cellular Network and\or email service providers who receive the Messages generated from the EVERYWHERE Hub, and EVERYWHERE and its Licensors are not responsible for any delays by the email service providers and the Cellular Network related to these Messages. Cellular Network providers and/or Internet service providers may charge Customer, its End Users, or the recipients, for Messages sent via SMS, MMS, email, and/or data sent using the EVERYWHERE Hub and EVERYWHERE or its Licensors are not responsible for any such charges or fees. The EVERYWHERE Hub relies on wireless communication networks and the Global Positioning System ("GPS") satellite network. The EVERYWHERE Hub functionality uses location information about the End User’s Device, and it only works if GPS satellite signals are unobstructed and available in that place. Messages may include an End Users location information. EVERYWHERE and its Licensors do not own or control the service providers that operate the links between the satellite ground stations, including satellite antennas and supporting equipment, and the GPS satellites, nor does EVERYWHERE own or control the Airtime, and cannot be responsible for any service interruptions that are associated with the Airtime, GPS or ground stations and the interconnecting networks. End Users are solely responsible (and EVERYWHERE and its Licensors have no responsibility to End Users, Customer or to any third-party) for any content that is created, transmitted or displayed on or through Devices and\or the EVERYWHERE Hub (“Content”) and for the consequences of such End Users’ actions by doing so. The EVERYWHERE Hub may become limited or temporarily unavailable without notice from time to time.
6.3 Misuse of the EVERYWHERE Hub. Customer shall: (a) not unlock, modify or reverse engineer any EVERYWHERE Device in order to render it incapable of working in connection with the EVERYWHERE Hub; and (b) not use the EVERYWHERE Hub: (i) to abuse or misuse the SOS Emergency Services; (ii) for the commercial tracking of assets that Customer does not own or are not otherwise authorized to monitor; (iii) to track personnel who have not provided Customer with consent and who have not been provided the Privacy Policy or the Garmin Privacy Policy; (iv) to send Messages that are offensive, defamatory, abusive or obscene or intended to harass; (v) for any purpose in violation of law; (vi) in any manner that infringes or misappropriates third party rights; (vii) in any manner which overloads or unreasonably interferes with the EVERYWHERE Hub or the Airtime; (viii) with Devices or products other than EVERYWHERE Devices and may not use any other equipment in connection with the EVERYWHERE Hub unless expressly approved by EVERYWHERE; (ix) in an effort to unlock or modify, or reverse engineer the EVERYWHERE Hub in order to modify it or render it capable of performing functions outside the approved Airtime; or (x) for any purpose otherwise not permitted by this Agreement. Failure to adhere to these restrictions may result in termination of this Agreement.
6.4 Customer Support Obligations of the Parties. EVERYWHERE shall be responsible for support services only if and as defined in Ordering Documents.
6.5 Third Party Services. If End Users use any services provided by third parties including, but not limited to the Cellular Network, in connection with the EVERYWHERE Hub (“Third Party Services”), then Customer acknowledges the applicable terms and conditions of the Third Party Services made available by that third party is a binding agreement solely between Customer and that third party, and not between Customer and EVERYWHERE, and that EVERYWHERE is acting solely as an intermediary between Customer and that third party. EVERYWHERE is not responsible for the terms of service made available by such third party for the Third Party Services, and EVERYWHERE has no obligations or liabilities under those terms of service. Third Party Services may be protected by intellectual property rights which are owned by such third party. Any reference or links to any third party content does not constitute endorsement, sponsorship or recommendation by EVERYWHERE or its Licensors. Third party product and service information are the sole responsibility of each individual third party vendor. It is possible that some third party content with the Third Party Services may be offensive, indecent or objectionable, and Customer acknowledges that use of the Third Party Services is at Customer’s own risk. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties are those of the respective authors and not of EVERYWHERE or its Licensors. EVERYWHERE and its Licensors do not endorse nor are they responsible for the accuracy or reliability of any opinion, advice, information or statement by anyone other than authorized EVERYWHERE employees acting in their official capacities. Customer understands and acknowledges that EVERYWHERE and its Licensors are not responsible for and does not monitor third party content for accuracy, infringement or reliability.
6.6 End User Warning Notice. In the event that Customer has elected to cancel their subscription for the Services for some, but not all Devices, under this Agreement (provided that such cancellation is otherwise permitted under the terms of the applicable Ordering Document and this Agreement) (a “Cancellation”)), then Customer must notify in writing or via email any End User in possession of the Device that was receiving the Services or group of End Users that had access to the Device that the Services will no longer be active on the cancelled Devices, including, but not limited to, the ability to use the SOS button or SOS functionality (the “End User Warning Notice”). The End User Warning Notice shall also include the effective date of the Cancellation. This provision does not confer upon Customer any right to cancel any Services.
7. EVERYWHERE Satellite Services
7.1 EVERYWHERE Satellite Services Authorized. If Customer has contracted with EVERYWHERE in an Ordering Document to utilize EVERYWHERE Satellite Services, then EVERYWHERE shall supply the EVERYWHERE Satellite Services to Customer on a non-exclusive basis, strictly in connection with Customer’s use of Commercial Devices and\or the EVERYWHERE Apps, in consideration for Customer’s payment obligations, during the term set forth in the Ordering Document and in accordance with the Specifications, and provisions of this Agreement and Ordering Documents.
7.2 Misuse of EVERYWHERE Satellite Services. Customer agrees that its End Users will not use the Products, Services or EVERYWHERE Satellite Services: (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 (vi) in any manner which overloads or unreasonably interferes with the EVERYWHERE Hub or the EVERYWHERE Satellite Service.
7.3 FCC Restrictions. FCC regulations prohibit using the Products and Airtime in a civil aircraft unless the Products have a direct physical connection to the aircraft cabin or cockpit communications system.
7.4 EVERYWHERE Satellite Services Availability is Not Unlimited. The EVERYWHERE Satellite Services is only available on the Iridium satellite network. The EVERYWHERE Satellite Services 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 require a clear line of sight toward the satellite; therefore, the EVERYWHERE Satellite Services is inherently subject to transmission and reception limitations caused by: (i) End User’s location, including conditions that obstruct the line of sight between the End User and the satellite systems; (ii) the condition of the satellite systems and ground stations; (iii) the condition of the End User’s Device; and (iv) weather conditions, atmospheric conditions, magnetic interference, environmental, and other conditions beyond EVERYWHERE’s control. EVERYWHERE SATELLITE SERVICES IS NOT AVAILABLE AT ALL GLOBAL LOCATIONS, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR AT ALL TIMES. The area End Users are located in may affect the EVERYWHERE Satellite Services that EVERYWHERE can provide to End Users, including routing EVERYWHERE Satellite Services.
7.5 Causes of EVERYWHERE Satellite Services Failure. EVERYWHERE Satellite Services may not work properly if:
a) End Users have not maintained Devices in good working order;
b) End Users do not comply with all applicable laws;
c) End Users try to add, connect or modify any equipment or software in the Devices (such as plugging Devices into the Device’s electrical system or diagnostic port);
d) The Device is not compatible with the EVERYWHERE Satellite Services; or
e) Other problems arise that EVERYWHERE cannot control that interfere with the delivery or quality of the EVERYWHERE Satellite Services or the Cellular Network, such as hills, tall buildings, tunnels, weather, damage to Devices, or Cellular Network or Airtime congestion or jamming.
7.6 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 End Users taking reasonable precautions or (b) is caused by events of Force Majeure.
7.7 Data Transmission Use. Due to the technical nature of data setups and the inherent sophistication of data transmission through Airtime and the Cellular Network, EVERYWHERE makes no representation as to the successful transmission of Messages using the Cellular Network or the EVERYWHERE Satellite Services. Customer agrees that all Messages transmission attempts regardless of ultimate successful transmission and termination will be paid for and no credits will be given in the event of disputes of this nature. Along with potential incorrect use (i.e.: next to a building/obstruction), Airtime (including low earth orbiting satellite constellations) and the Cellular Network have inherent flaws and anomalies that can cause transmission failures or create dropped calls of either voice or data nature. Undelivered Messages will not be credited.
8. SOS Monitoring Services. IN NO EVENT DOES THIS AGREEMENT CREATE A DUTY TO RESCUE ANY END USER OR ANY THIRD PARTY AS A RESULT OF ANY SOS EMERGENCY SIGNAL RECEIVED BY EVERYWHERE.
8.1 Customer Monitored SOS. When Customer has contracted with EVERYWHERE in an Ordering Document to notify a call center designated by Customer (the “Customer Emergency Call Center”) when a Device has generated an emergency signal (a “SOS Emergency Signal”), then all of the provisions of this Section 8.1 apply:
8.1.1 Customer Emergency Call Center. When an End User generates an SOS Emergency Signal on their Device or EVERYWHERE App, the Services shall commence the process of notifying the Customer Emergency Call Center that an SOS Emergency Signal has been generated. Customer 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 shall make the applicable registration data information and available location coordinates available to the Customer Emergency Call Center.
8.2.1 EVERYWHERE SOS Response Center. When an End User generates an SOS Emergency Signal on their Device or EVERYWHERE App, the Services shall commence the process of notifying the EVERYWHERE’s response center (the “EVERYWHERE SOS Response Center”). The EVERYWHERE SOS Response Center may be outsourced to a third party SOS provider (the “Third Party SOS Provider”). 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 the Third Party SOS Provider, and\or to competent legal authorities in order to assist in the effectuation of a rescue (if an End User resides in New Zealand, where necessary to prevent or lessen a serious threat (as defined in the Privacy Act 1993) to public health or public safety, or to the life or health of the individual concerned or another individual). EVERYWHERE or its Third Party SOS Provider may remotely activate SOS features when notified by competent legal authorities that a distress situation exists for an End User. EVERYWHERE intends that the EVERYWHERE SOS Response Center 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 EVERYWHERE SOS Response Center will not receive SOS Emergency Signals or that SOS Emergency Signals will be delayed. The emergency responders (and not EVERYWHERE or the Third Party SOS Provider) 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 the intended End User or the emergency responders.
8.2.2 SOS Monitoring. When the Services transmit the SOS Emergency Signals to the EVERYWHERE SOS Response Center, it also includes the applicable registration data information and available location coordinates. The EVERYWHERE SOS Response Center maintains a database of emergency responders in regions throughout the world (the “SOS 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, EVERYWHERE SOS Response Center personnel will: (i) contact, if available, the primary and secondary contacts identified by Customer in its registration data to attempt to validate the SOS Emergency Signal, (ii) use the SOS 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 the Third Party SOS Provider’s possession (including the registration data information and\or location coordinates); (iv) if the End User is traveling outside of the End User’s home territory, and it is consistent with the Third Party SOS Provider’s procedures, contact the Embassy of the End User’s government 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 the Third Party SOS Provider’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, its Licensors, and the Third Party SOS Provider are released from all further responsibility and\or obligation to take any further action whatsoever. Should EVERYWHERE or the Third Party SOS Provider have reasonable cause to believe that an emergency condition does not exist, then EVERYWHERE and the Third Party SOS Provider reserve the right to solely contact the primary and secondary contacts identified by the End User.
8.2.3 False SOS Emergency Transmissions. Customer 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 End Users’ transmission of a SOS Emergency Signal. Should an End User deliberately or negligently misuse the SOS Emergency Service, EVERYWHERE 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 an End User has deliberately or negligently misused the SOS Emergency Service, EVERYWHERE may provide Customer’s credit card information on record to the Third Party SOS Provider. EVERYWHERE or the Third Party SOS Provider shall then, without further notice or consent, bill the credit card the appropriate fee, calculated at a rate of $1,000 for each such false SOS Emergency Signal event, and Customer shall be responsible to pay any such fee.
9. Provider of Training. If so specified in an Ordering Document, EVERYWHERE shall provide Customer at a location to be mutually agreed upon or via an Internet-based webinar, Training Services for Customer's employees, with training in provisioning, use and application of Products, Services or EVERYWHERE Satellite Services, subject to availability of such training courses. Customer may use material provided to conduct courses for End Users provided that EVERYWHERE’s copyright notices are retained thereon.
10.2 Cooperation and Assistance. Customer shall provide EVERYWHERE with access to technical personnel and information in connection with performance of the Products, Services, and EVERYWHERE Satellite Services and will furnish all information and assistance required to be provided by Customer under the Ordering Document. Customer will promptly notify EVERYWHERE in sufficient detail of any defect, deficiency or error known to or discovered in the Products, Services, and EVERYWHERE Satellite Services by Customer in sufficient detail to enable EVERYWHERE to duplicate the condition.
10.3 Export Compliance. All Products, Services, and EVERYWHERE Satellite Services, deliverables, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with these laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import as may be required by law. Any delays attributable to EVERYWHERE’s ability to secure appropriate export licenses or other required export documentation shall not be considered a breach of this Agreement. Customer represents that it and its End Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). Customer will (i) immediately notify EVERYWHERE and discontinue any use of the Products, Services, and EVERYWHERE Satellite Services if it become aware that any of its End Users have been placed on any Sanctions List and (ii) remove any such End Users’ access to the Products, Services, and EVERYWHERE Satellite Services. Customer represents that it has not, and will not, export, re-export, or transfer the Products, Services, and EVERYWHERE Satellite Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Customer represents and warrant that it is not, and the Products, Services, and EVERYWHERE Satellite Services will not be exported, re-exported or used in any country that is: (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. Customer also agrees that it will not use any Products, Services, and EVERYWHERE Satellite Services for any purposes prohibited by United States law.
11. Changes to Products, Services or EVERYWHERE Satellite Services; End-Of-Life
11.1 End-Of-Life Notice. EVERYWHERE shall make commercially reasonable efforts to provide Customer with ninety (90) days prior written notice of any termination of support for specific Products, Services or EVERYWHERE Satellite Services (“End-Of-Life”). Such notice shall be posted on EVERYWHERE’s website and shall contain the details of the last order by dates. Notwithstanding the foregoing, nothing in this provision shall reduce any warranty period or any support period for any Products, Services or EVERYWHERE Satellite Services purchased or licensed under an existing Ordering Document.
11.2 Products or Services Changes. EVERYWHERE, in its sole discretion, may alter the design of the Products or Services including, but not limited to, the following reasons, if the alteration: (i) does not result in any material deviation from the Specifications for such Products or Services; (ii) is required to avoid infringement of any third party intellectual property; or (iii) is required to conform with laws or applicable governmental regulations. In addition, EVERYWHERE’s Licensors may make changes to Products or Services in order to comply with applicable laws, to maintain or improve the Products or Services or for other business reasons, without notice to Customer and without liability for any changes in Customer’s use the Products or Services, including compatibility issues, as a result of such changes. These updates may take the form of bug fixes, enhanced functions, new software modules and completely new versions. This Agreement does not grant any rights to obtain future upgrades, updates or supplements to the Products or Services. If upgrades, updates or supplements of the Products or Services are obtained, however, the use of such upgrades or updates is governed by this Agreement and the amendments that may accompany it and may be subject to additional payments and conditions. EVERYWHERE recommends all Products have the most recent version available. EVERYWHERE reserves the right to require the installation of the most recent version in order to obtain continued service. Any such mandatory updates will be offered at no additional cost to Customer.
12. Prices
12.1 Customer Internal Use Prices. In consideration for Customer’s internal use and access to the Services and EVERYWHERE Satellite Services and purchase or license of the Products, Customer shall pay the prices (“Prices”) for such Products, Services or EVERYWHERE Satellite Services in the price lists set forth in Ordering Documents (the “Price List”) during the applicable Subscription Periods specified in the Ordering Document.
12.2 Taxes. Taxes are not included in Prices. Customer shall pay or reimburse EVERYWHERE for taxes and any other expenses incurred for any licenses required for clearance at the ports of entry and destination. In addition, Customer shall pay all applicable sales, customs, duty, use, property, withholding, value-added, excise and any other taxes (including an FCC Regulatory Recovery Fee assessed against monthly service and Airtime usage charges for all US based accounts) or duties imposed under the authority of any foreign, federal, state or local taxing jurisdiction, (collectively “Taxes”) except any tax assessed upon EVERYWHERE’s net income. Customer shall not reduce any fees or charges owed to EVERYWHERE as a result of any such Taxes or duties.
13. Process for Orders
13.2 EVERYWHERE Acceptance of Orders. An Order sent by Customer to EVERYWHERE that is consistent with the provisions of Section 13.1 (Placing Orders) shall be considered accepted by EVERYWHERE, unless EVERYWHERE either rejects the Order or provides an acknowledgement of the Order (“Acknowledgement”), in either case, in writing and within two (2) business days from EVERYWHERE’s receipt of the Order, unless written notice is provided by EVERYWHERE extending the period by an additional two (2) business days. A timely Acknowledgement received by Customer shall be considered accepted by Customer if Customer commences use of the Products, Services, and EVERYWHERE Satellite Services or otherwise provides a written rejection of the Acknowledgement to EVERYWHERE, either within two (2) business days from Customer’s receipt of the Acknowledgement. EVERYWHERE shall use commercially reasonable efforts to fill all Orders but shall not be obligated to accept or provide an Acknowledgement of any Orders, particularly Orders which contain delivery dates, special requirements or other fulfillment terms that EVERYWHERE, through reasonable commercial efforts, is unable to meet. In any of the foregoing events, EVERYWHERE and Customer shall work cooperatively to determine the most appropriate delivery schedule. In addition, EVERYWHERE shall not be obligated to accept any Order or provide Acknowledgement of any Order should Customer fail to comply with the material terms of this Agreement, including meeting payment terms of previous Orders or due to the general financial condition of Customer.
13.3 Shipment of Devices. Shipment of all Devices and accessories shall be FOB EVERYWHERE’s or its Licensors’ shipping dock and Customer assumes all risk of loss upon delivery of the Devices and accessories to the shipping carrier. Title to Devices and accessories shall pass to Customer upon delivery of the Devices and accessories to the shipping carrier. Customer or its designated freight forwarder shall be the importer of record (“Importer of Record”) of the Devices and accessories. The Importer of Record shall be responsible for (a) keeping all records, documents, correspondence and tracking information required by applicable laws, rules and regulations arising out of or in connection with the importation or delivery of the Devices and accessories; (b) customs and other regulatory clearance of the Devices and accessories; and (c) payment of all tariffs, duties, customs, fees, expenses and charges payable in connection with the importation and delivery of the Devices and accessories. Customer shall be responsible for all shipping and insurance costs.
13.4 Drop Shipment of Orders Outside the U.S. EVERYWHERE will not drop ship Products to locations outside the United States.
14. Invoicing, Payment, and Billing
14.1 Calculation and Timing of Charges. Unless specified otherwise in an Ordering Document, the timing for the calculation of charges to be billed by EVERYWHERE to Customer are as follows (the “Charges”):
14.1.1 Products Billing. EVERYWHERE shall calculate the Charges for the Products upon shipment of the Products from EVERYWHERE’s or its Licensor’s site based on the Price List.
14.1.2 Subscription Fee Billing. If the Ordering Document specifies that billing for the Subscription Fees will be on an annual basis, then EVERYWHERE shall calculate the Charges for the Subscription Fees on an annual basis and the Charges for the first year of the Subscription Fees shall be calculated upon Acknowledgement of the Orders and on the anniversary of such date thereafter for all multi-year Orders, in advance of service. No refunds shall be provided for any EVERYWHERE plans containing Subscription Fees.
14.2 Invoices. All Charges shall be invoiced on the date the Charges are calculated. Unless specified otherwise in the Ordering Document, all payments reflected on invoices are due net thirty (30) days after the date of Customer’s receipt of the invoice (the “Due Date”). EVERYWHERE may provide invoices electronically via email to Customer.
14.3 Payment by EFT. All payments to EVERYWHERE shall be made by Customer using electronic funds transfer (EFT). EVERYWHERE shall provide account and routing numbers to Customer.
14.4 Credit Card Processing Fees. In the event that EVERYWHERE accepts payment via a credit card, Customer agrees that EVERYWHERE reserves the right to charge Customer a credit card processing fee up to four percent (4%) for any payments made to EVERYWHERE via the credit card.
14.5 Currency. Unless specified otherwise in Ordering Documents, all Prices and all payments made to EVERYWHERE shall be in United States dollars.
14.6 Disputed Invoices. If Customer disputes any part of any invoice, Customer must provide EVERYWHERE with written notice of the dispute containing a detailed description of the request for each specific item disputed by the Due Date if invoiced or within thirty (30) days of the date of the date of the credit card charge (“Disputed Item”). If Customer fails to provide EVERYWHERE with such written notice of the dispute within such timeframe, then EVERYWHERE shall not be obligated to investigate or revise the invoice.
14.7 Failure to Pay. Failure to pay any fees or other charges or amounts (including Taxes) due, less Disputed Items, to EVERYWHERE on or before the Due Date and after written notification by EVERYWHERE shall be a breach of this Agreement (“Failure to Pay”). Notwithstanding anything else contained in this Agreement, in the event that a Failure to Pay is not cured within thirty (30) days following written notice of the Failure to Pay, EVERYWHERE may: (a) suspend access to the Services or EVERYWHERE Satellite Services and\or terminate this Agreement for default; and (b) impose interest from the Due Date through the date paid, at a rate of one and one half (1 ½%) percent per month, or the maximum rate allowable at law, if less. No discounts for early payment are authorized. Any suspension may be continued until the Failure to Pay has been cured. EVERYWHERE shall be entitled to recover reasonable attorney's fees and costs incurred by EVERYWHERE in collecting all unpaid amounts hereunder following a Failure to Pay.
14.8 No Setoffs or Accord and Satisfaction. Customer is solely responsible for the payment of all Prices, fees, charges and other amounts as set forth in this Agreement. Customer shall not set off or withhold any amount from EVERYWHERE, except for Disputed Items. Customer shall not place any condition or restrictive legend, such as “Paid in Full”, on any check or instrument used to make a payment. The Parties agree that the negotiation of any such check or instrument so inscribed shall not constitute an accord and satisfaction or novation, and Customer waives its right to assert any such defense.
15. Intellectual Property Rights
15.1 EVERYWHERE Intellectual Property Rights. Customer acknowledges and agrees that the intellectual property rights underlying the Products, Services, EVERYWHERE Satellite Services, Training Content (collectively, “EVERYWHERE IP”) are 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 Customer title or ownership of the Intellectual Property Rights underlying the EVERYWHERE IP, but only a right of limited use in accordance with this Agreement. Customer acknowledges 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.
15.2 Customer Intellectual Property Rights. EVERYWHERE acknowledges and agrees that the intellectual property rights underlying any materials provided by Customer to EVERYWHERE hereunder (“Customer IP”) are owned by, and shall remain the sole property of Customer, that the Customer 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 Customer, and that Customer shall continue to be the sole owner of all Intellectual Property Rights in and to the Customer IP worldwide including, without limitation, any derivative works. This Agreement does not convey to EVERYWHERE title or ownership of the Intellectual Property Rights underlying the Customer IP, but only a right of limited use in accordance with this Agreement. EVERYWHERE acknowledges that the Customer IP provided by Customer 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 Customer or its Licensors.
15.3 Protected Patents. Customer shall not, either directly or indirectly file, maintain, or assist any third party in filing or maintaining: (a) any request for reexamination of any of the patents set forth in Exhibit B (Protected Patents) (the “Prohibited Patents”); or (b) any legal or administrative proceeding alleging invalidity, non-infringement or unenforceability of any Prohibited Patents. Breach of this Section 15.3 shall be a material breach of this Agreement giving rise to any remedies for breach, without prejudice to other remedies available at law or equity, and in the event that Customer breaches the provisions of Section 15.3, Customer shall be responsible for and reimburse EVERYWHERE for all out-of-pocket costs and damages incurred by EVERYWHERE or its Licensors in contesting any such action or proceeding.
15.4 Suggestions. Many of EVERYWHERE’s changes to user interfaces, features, functionality, and other aspects of the Products, Services, and EVERYWHERE Satellite Services come as a result of suggestions made by customers and partners, whether in the form of suggestions, enhancement requests, recommendations, or other feedback, with regard to the Products, Services, and EVERYWHERE Satellite Services (all of the foregoing, collectively, “Suggestions”). All customers benefit from EVERYWHERE incorporating Suggestions in future releases of the Products, Services, and EVERYWHERE Satellite Services. Customer grants to EVERYWHERE an irrevocable, worldwide, royalty-free, perpetual license to use as EVERYWHERE deems appropriate any Suggestions that Customer, or any person or entity under the direction or control of Customer, provides to EVERYWHERE, to incorporate such Suggestions in any form into the Products, Services, and EVERYWHERE Satellite Services (or any other products or services), and to exercise any other rights with respect to such Suggestions. EVERYWHERE shall be entitled to use any Suggestions without restriction and without obligation to Customer or any third party.
15.5 Survival of Intellectual Property. This Section 15 (Intellectual Property Rights) shall survive any termination or expiration of this Agreement.
16. Confidentiality
16.1 “Confidential Information” means all such information, material and data received by one Party (the "Receiving Party") from the other Party (the "Disclosing Party") or its clients, whether disclosed in writing or verbally, (i) that is labeled or designated in writing as confidential or proprietary, (ii) which Receiving Party is advised is proprietary or confidential or (iii) which, in view of the nature of such information or the circumstances of its disclosure, Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes the terms and conditions of this Agreement. Confidential Information shall not include information which (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) is rightfully received from a third party without an obligation of confidence; (c) is independently developed by the Receiving Party without reference to Confidential Information; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Receiving Party provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the Confidential Information.
16.2 Use of Confidential Information. The Receiving Party will hold any Confidential Information in strict confidence for a period of three (3) years from termination or expiration of this Agreement, except that the obligation of the Receiving Party to maintain the confidentiality of trade secrets and personally identifiable data shall survive indefinitely. The Receiving Party will use such Confidential Information only in accordance with the terms of this Agreement. The Receiving Party shall limit the use of, and access to, the Confidential Information to its employees or agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. The Receiving Party shall, by appropriate means, prevent the unauthorized disclosure, publication, display or use of any Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall require all employees, agents or contractors who shall have access to the Confidential Information to execute, prior to such access, a non-disclosure agreement providing for at least the same protection of the Confidential Information as is provided for by this section.
16.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return to the Disclosing Party, or, if requested, destroy all copies of the Disclosing Party’s Confidential Information in its possession. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the Receiving Party in any form or for any reason.
17. Security
17.1 EVERYWHERE Systems and Security Obligations. EVERYWHERE will employ security measures in accordance with applicable law and industry practice.
17.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (b) the security and use of Customer's access credentials to the EVERYWHERE Hub; and (c) all access to and use of the EVERYWHERE Hub directly or indirectly by or through the Customer Systems including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
18.1 Mutual Warranties. Each Party represents and warrants that it has the full corporate or organizational power to enter into and perform this Agreement, and that the execution and performance hereof has been duly authorized by all necessary corporate or other organizational action.
18.2 End User Warning Notice Warranty. Customer represents and warrants that during the Term of this Agreement that it shall comply with the End User Warning Notice requirement set forth in Section 6.6 (End User Warning Notice) and its failure to do so is a material breach of this Agreement. Customer acknowledges that: (a) EVERYWHERE has no way of knowing the identity or contact information of the End Users whose Services were subject to Cancellation; and (b) failing to provide the End User Warning Notice could result in an End User falsely believing that he\she might be rescued after pressing the SOS button on a Device when, in fact, their Services were cancelled and the SOS functionality will not operate and no SOS Emergency Services will be activated.
18.3 EVERYWHERE App Software Warranty. EVERYWHERE warrants during the applicable Subscription Period that the EVERYWHERE Apps set forth in any applicable Ordering Documents will operate in material accordance with the Specifications. Customer’s sole remedy for any claims under this Section 18.3 shall be to correct such failures at no charge to Customer.
18.4 DISCLAIMER OF WARRANTY FOR THE EVERYWHERE HUB. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE EVERYWHERE HUB IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EVERYWHERE HUB IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT THE EVERYWHERE HUB WILL MEET CUSTOMER’S REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY, SUITABILITY, ACCURACY OR QUIET ENJOYMENT OF THE EVERYWHERE HUB, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF THE EVERYWHERE HUB. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF THE EVERYWHERE HUB. THE EVERYWHERE HUB 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 THE EVERYWHERE HUB COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
18.5 DISCLAIMER OF WARRANTY FOR EVERYWHERE SATELLITE SERVICES AND CELLULAR NETWORK. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF EVERYWHERE SATELLITE SERVICES AND THE CELLULAR NETWORK IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVERYWHERE SATELLITE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE” AND EVERYWHERE DOES NOT REPRESENT THAT EVERYWHERE SATELLITE SERVICES COVERAGE OR THE CELLULAR NETWORK WILL MEET CUSTOMER’S REQUIREMENTS. EVERYWHERE AND ALL ITS LICENSORS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY OF EVERYWHERE SATELLITE SERVICES AND THE CELLULAR NETWORK, OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF THE SATELLITE SYSTEMS OR THE CELLULAR NETWORK USED BY EVERYWHERE TO TRANSMIT DATA TRANSMISSIONS, INCLUDING SOS EMERGENCY SIGNALS AND\OR HELP TRANSMISSIONS FOR ASSISTANCE. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES, OR LOSS OF DATA THAT RESULTS FROM USE OF EVERYWHERE SATELLITE SERVICES AND THE CELLULAR NETWORK.
18.6 Purchased Devices Warranty.
18.6.1 Device Warranty. EVERYWHERE is not the manufacturer of the Devices. EVERYWHERE provides Customer a pass through of the Devices’ warranties provided by the Devices’ manufacturers (the “Manufacturer’s Warranty”) but only for any Devices purchased from EVERYWHERE, except for any language in the Manufacturer’s Warranty that is expressly excluded herein. Upon request, EVERYWHERE shall make the text of the Manufacturer’s Warranty available to Customer. Unless the applicable Ordering Document specifies a different warranty period (the “Device Warranty Period”), the Device Warranty Period shall be as set forth in the Manufacturer’s Warranty. Although the Manufacturer’s Warranty specifies the exact Device Warranty Period, typically the Device Warranty Period is for a period of one (1) year from the date the Device was originally purchased by Customer. Notwithstanding the fact that the Manufacturer’s Warranty applies, all warranty issues for Devices purchased from EVERYWHERE shall be directed to EVERYWHERE and not the manufacturer. Any repairs not performed by EVERYWHERE will void this warranty.
18.6.2 RMA Process. Any RMA or other return processes set forth in the Manufacturer’s Warranty, including the cost and process for shipping Devices under warranty, is hereby excluded and governed by this Section. Prior to returning any Device under warranty to EVERYWHERE for repairs or replacement, Customer must obtain a Return Merchandise Authorization number (“RMA#”) from EVERYWHERE by calling or emailing EVERYWHERE’s Customer Care group using the contact information set forth in Exhibit A (Returns) and Ordering Documents. In addition to providing an RMA#, EVERYWHERE shall provide the ship-to address for the returned Device. Devices shipped to EVERYWHERE without an RMA# will be returned to Customer at Customer’s expense. Customer agrees to pay all shipping and freight charges and Customer assumes all risk of loss FOB EVERYWHERE’s offices, for all Devices sent to EVERYWHERE. After repairing or replacing the Device, EVERYWHERE shall pay all shipping and freight charges, FOB EVERYWHERE offices, to return the Device back to Customer unless (i) Customer has sent the Device to EVERYWHERE that is out of warranty; or (ii) the Device sent to EVERYWHERE is in working condition and not in need of repair or replacement; or (iii) the Device was sent to EVERYWHERE without an RMA# issued by EVERYWHERE. Under the preceding conditions, Customer agrees to pay or reimburse EVERYWHERE for all shipping and freight charges. Customer acknowledges that it is solely responsible for backing-up and safeguarding any data stored on the Device at all times including before shipment to EVERYWHERE. If Customer ships any Device to EVERYWHERE or its designee, EVERYWHERE is only responsible for any loss or damage that occurs (a) while at the site of EVERYWHERE or its designee and (b) where the loss or damage is caused by the negligence or willful misconduct of EVERYWHERE or its designee. In that case, Customer’s only remedy and EVERYWHERE’s sole liability to Customer shall be to repair or replace the lost or damaged Device.
18.7 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, THE CELLULAR NETWORK OR THE 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, OR ACTS OR OMISSIONS OF THIRD PARTIES THAT DAMAGE THE AIRTIME’S NETWORK OR IMPAIRED AIRTIME OR THE CELLULAR NETWORK, 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 THIRD PARTY SOS RESPONSE CENTER, OR ANY OTHER EMERGENCY CALL SERVICE, OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.
18.8 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND CUSTOMER AND EVERYWHERE, ON BEHALF OF ITS LICENSORS AND THEIR LICENSORS, EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EVERYWHERE AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE OPERATION OF THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR OF SATISFACTORY QUALITY TO THE EXTENT PERMITTED BY APPLICABLE LAW. EVERYWHERE DOES NOT WARRANT OR MAKE ANY CONDITIONS OR REPRESENTATIONS REGARDING THE SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY DATA OR MATERIAL OF ANY KIND CONTAINED WITHIN THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES FOR ANY PURPOSE. EVERYWHERE AND ITS LICENSORS MAKE NO REPRESENTATIONS THAT THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES WILL BE FREE FROM LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, WORM, TIME BOMB, LOGIC BOMB, SIMILAR COMPUTER BASED INTRUSIONS OR INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND THAT ANY DEFECTS IN THE PRODUCTS, SERVICES, AND EVERYWHERE SATELLITE SERVICES WILL BE CORRECTED 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. END USERS ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO PRODUCTS, OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
18.9 Sole Remedy. Customer’s sole remedy and EVERYWHERE’s sole obligation for any warranty claims under this Section 18 shall be to correct such failures at no charge to Customer.
19. Indemnification. This Section 19 does not apply to Customers who are government agencies.
19.1 Indemnification by Customer. Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless EVERYWHERE, and each of its officers, directors, owners, employees, agents, and Licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, "Losses") arising out of or in connection with (i) any use of the Products, Services or Airtime that is not authorized under this Agreement or outside of its intended use in accordance with the Specifications; (ii) property damage and bodily injury, including death, to the extent such claim or cause of action arises out the gross negligence or intentional misconduct of the Indemnifying Party; (iii) any EVERYWHERE Satellite Services usage by unauthorized users from Customer accounts; (iv) Customer's failure to meet regulatory requirements or failure to obtain any necessary governmental approvals; (v) any resale or distribution of the Products, Services or EVERYWHERE Satellite Services that is not authorized under this Agreement; (vi) injury, death or other claims on behalf of an End User whose Services were subject to Cancellation.
19.2 Indemnity Procedure. The Indemnified Party shall provide the Indemnifying Party with (i) prompt written notice of any claims under this Section 19 for which it seeks indemnification hereunder; (ii) full information and assistance in settling and/or defending the claims; and (iii) full authority and control of the defense and/or settlement of any such claims.
19.3 Exclusive Remedy for Indemnification; Survival. The remedies set forth in this Section 19 (Indemnification) shall survive termination or expiration of this Agreement and are the exclusive remedies of the Parties with reference to any claims for indemnification.
20.1 LIMITATION ON INDIRECT DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER OF THE PARTIES NOR EVERYWHERE’S LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL, ECONOMIC, RELIANCE, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, LOSS, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, MEDICAL AND OTHER EXPENSES, LOSS OF GUIDANCE, CARE AND COMPANIONSHIP, LOST DATA, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER RESULTING FROM CONTRACT, TORT (INCLUDING LIABILITY FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE IN RESPECT OF ANY LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS RESULTING FROM THE ACTS OR OMISSIONS OF SUCH PARTIES, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY OR THEIR LICENSORS.
20.2 NO LIABILITY FOR EVERYWHERE’S LICENSORS. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT EVERYWHERE’S LICENSORS AND THEIR AFFILIATES SHALL HAVE NO LIABILITY TO CUSTOMER FOR DAMAGES OR COSTS WHETHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL, WHETHER FORESEEABLE OR NOT, INCURRED AS A RESULT OF LOSS OF TIME, SAVINGS, PROPERTY, DATA, PROFITS, OR GOODWILL, UNDER ANY THEORY OF LIABILITY, INCLUDING NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY, CONTRACT, WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY AND REGARDLESS OF WHETHER EVERYWHERE’S LICENSORS OR ITS AFFILIATES HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES CAUSED BY:
20.2.1 ANY FORCE MAJEURE EVENT; OR
20.2.2 FAILURE, DELAY, OR INACCURACY OF THE GPS SATELLITES IN PROVIDING LOCATION COORDINATES; OR
20.2.3 FAILURE, DELAY, OR INACCURACY OF THE PRODUCTS TO PROCESS AND/OR TRANSMIT DATA TRANSMISSIONS, INCLUDING SOS EMERGENCY SIGNAL(S), AND/OR LOCATION COORDINATES, TO THE SATELLITE SYSTEMS; OR
20.2.4 FAILURE OF OR DELAY IN THE SATELLITE SYSTEMS AND/OR GROUND STATIONS TO PROCESS DATA TRANSMISSIONS, INCLUDING BUT NOT LIMITED TO SOS EMERGENCY SIGNALS, LOCATION COORDINATES, PREPROGRAMMED MESSAGES AND DISPLAY, AND TRANSMIT TO THE IDENTIFIED POINTS OF CONTACT AND\OR THE APPLICABLE EMERGENCY CALL CENTER; OR
20.2.5 FAILURE OF OR DELAY IN THE EMAIL OR CELLPHONE PROVIDER TO TRANSMIT THE MESSAGE TO AN END USER, OR FAILURE OF OR DELAY IN THE APPLICABLE EMERGENCY CALL CENTER IN RESPONDING TO SOS EMERGENCY SIGNALS; OR
20.2.6 FAILURE OF, OR DELAY IN THE PRODUCTS TO TRANSMIT OR RECEIVE ANY MESSAGES; OR
20.2.7 FAILURE OF, OR DELAY BY, SERVICE PROVIDERS TO PERFORM THE APPLICABLE SERVICE FOR WHICH EACH IS CONTRACTED; OR
20.2.8 FAILURE TO OBTAIN A CLEAR LINE OF SIGHT TOWARD THE SATELLITE SYSTEMS; OR
20.2.9 FAILURE TO PROPERLY INSTALL SOFTWARE OR CONFIGURE THE PRODUCTS; OR
20.2.10 FAILURE OF EVERYWHERE, ITS LICENSORS, AND THEIR SERVICE PROVIDERS TO PROVIDE THE SERVICES, INCLUDING SOS EMERGENCY SERVICES, DUE TO THE SERVICES HAVING BEEN CANCELLED OR TERMINATED PURSUANT TO THIS AGREEMENT; OR
20.2.11 NON-COMPATIBILITY OF PRODUCTS WITH SMARTPHONE OPERATING SYSTEMS AND THIRD-PARTY SOFTWARE; OR
20.2.12 FAILURE OR INADEQUACY OF POWER SUPPLY FOR PRODUCTS AND\OR ASSOCIATED ACCESSORIES.
20.3 LIMITATION ON DIRECT DAMAGES. BOTH PARTIES SHALL ONLY BE LIABLE TO THE OTHER PARTY FOR PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, HOWSOEVER CAUSED AND WHETHER FOR BREACH OF CONTRACT, IN TORT, BY WAY OF NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF EVERYWHERE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE, THE TOTAL AMOUNT OF REVENUE GENERATED UNDER THE APPLICABLE ORDERING DOCUMENT FROM WHICH THE CLAIM AROSE IN THE MOST RECENT TWELVE (12) MONTH PERIOD FROM WHEN THE CLAIM AROSE; PROVIDED, HOWEVER, THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 20 SHALL NOT APPLY TO INTENTIONAL OR RECKLESS ACTS OR GROSS NEGLIGENCE ON THE PART OF EVERYWHERE.
20.4 If Customer is located in a European Union country, Switzerland, Norway, Iceland, Australia or New Zealand, nothing in this Section 20 shall remove or limit EVERYWHERE’s liability for death or personal injury.
20.5 Survival of Limitations. The limitations of liability set forth in this Section 20 shall survive termination or expiration of this Agreement.
21. Suspension. Upon EVERYWHERE’s reasonable belief that criminal or otherwise improper activity may be associated with Customer's use of the Services or EVERYWHERE Satellite Services, EVERYWHERE may, without incurring any liability, temporarily suspend or discontinue Customer’s use of the Services or EVERYWHERE Satellite Services.
22. Termination
22.1 Termination By Either Party. A non-breaching Party may terminate this Agreement for cause by written notice to breaching Party upon the occurrence of any of the following events: (i) the material breach by breaching Party of any term, provision, representation or warranty of this Agreement that remains uncured thirty (30) days after the non-breaching Party provides written notice thereof; (ii) a material breach of any of its intellectual property, confidentiality obligations; or (iii) Party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors, and such event continues for ninety (90) days after the non-breaching Party provides written notice thereof.
22.2 EVERYWHERE Termination. EVERYWHERE may terminate this Agreement:
a) for cause by written notice to Customer upon Customer’s failure to pay any amounts due to EVERYWHERE within thirty (30) days following a Failure to Pay; or
b) by providing Customer with thirty (30) days advanced written notice if any government authority or EVERYWHERE Licensor terminates or materially limits EVERYWHERE’s rights to provide a service or product that is required by EVERYWHERE to provide the Products, Services or EVERYWHERE Satellite Services hereunder.
22.3 Rights Upon Termination. Upon termination or expiration of this Agreement by either Party:
a) all Licenses granted hereunder shall terminate immediately;
b) Each Party will promptly cease using and destroy or return to the other Party all items that contain any Confidential Information of the other Party;
c) EVERYWHERE shall immediately invoice Customer for any outstanding sums which may be owing and Customer immediately shall pay such invoices; and
d) termination or expiration of this Agreement shall not release either party from: (i) any liability which has already accrued to the other Party hereto at the time of termination or expiration; (ii) any liability which thereafter may accrue with respect to any act or omission prior to termination or expiration; or (iii) any obligation which is expressly stated herein to survive termination or expiration.
23. General Provisions
23.1 Arbitration. Any dispute, controversy, or claim arising out of, relating to, or having any connection with the Agreement will be exclusively and finally be settled by binding arbitration in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association, unless the dispute involves parties from outside the United States, in which case the Rules of Conciliation and Arbitration of the International Chamber of Commerce shall apply (as applicable, the “Arbitration Organization”) that are then in effect (“Arbitration Claim”). The Parties shall attempt to agree upon the selection of a single arbitrator who is unrelated to either Party and has demonstrable experience in the area of the dispute. In the event the Parties are unable to select a mutually acceptable arbitrator, the arbitrator shall be appointed by the Arbitration Organization. Unless mutually agreed otherwise by the Parties, or prohibited by the Arbitration Organization, the arbitration shall be conducted via teleconference, preferably using video conferencing. In the event that teleconferences are not utilized then all arbitration proceedings shall be held in Annapolis, Maryland. The arbitration proceedings shall be conducted in the English language. The arbitrator’s costs shall be borne equally by the Parties and each Party shall be responsible for its own preparation, discovery, and internal and external costs incurred to prosecute or defend the Arbitration Claim. The arbitrator shall be bound by the express provisions of this Agreement in deciding any Arbitration Claim. The determination of the arbitrator shall be final, and except as provided by law, shall not be subject to appeal or judicial review. Any court of competent jurisdiction may enforce any award or determination rendered by the arbitrator. The arbitrator shall not have the authority to award damages for lost profits or consequential damages, or special, punitive, or other exemplary damages of any sort.
23.2 Publicity. Neither Party shall issue a press release or make any similar public announcement without the other Party’s prior written consent to the specific language and intended distribution of such press release or announcement. Notwithstanding the foregoing, the Parties agree to issue a joint press release so that both Parties can make reference to this in marketing and promotional material. EVERYWHERE may use Customer’s name and logo in EVERYWHERE’s customer lists which may be posted on EVERYWHERE’s website.
23.3 Force Majeure. Neither Party shall be liable to the other Party or shall be subject to termination of the Agreement by the other Party for any delay, nonperformance, loss or damage (other than for failure to pay any amount when due) because of reasons beyond its reasonable control including, but not limited to, acts of god, natural casualties, acts of government, floods, fires, earthquakes, hostilities, civil unrest, acts of terror, labor or material shortages, strikes, communication systems or satellite systems failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, fire, explosion, flood, snow, fog or other inclement weather conditions, damage caused by electromagnetic interference, theft, malicious damage, lock out or industrial action of any kind, transportation conditions or other causes beyond the reasonable control of the respective Party or not anticipated by the respective Party in its business judgment (each a “Force Majeure Event”). The Party seeking relief from the Force Majeure Event will notify the other Party in a timely fashion if it is unable to perform due to a Force Majeure Event. The other Party agrees that the Party seeking relief shall not be responsible or liable in any way for any delay or non-performance due to a Force Majeure Event (other than for failure to pay any amount when due).
23.5 Subcontractors Permitted. EVERYWHERE may engage subcontractors to perform all or any portion of its duties under this Agreement provided that any such subcontractor agrees in writing to be bound by confidentiality obligations at least as protective as the terms of this Agreement regarding confidentiality, and provided further that EVERYWHERE remains responsible for the performance of such subcontractors.
23.6 Amendments. This Agreement may be updated from time-to-time by EVERYWHERE by its posting changes thereto on its website, located at https://www.everywherecomms.com/commercial-terms.html, provided that no such changes shall impact any pre-existing Ordering Documents. If Customer does not agree to the amended terms, Customer shall not provide EVERYWHERE with any additional Ordering Documents. Except as set forth in this Section, no modification of these Online Commercial Terms is authorized and no modification shall be binding on EVERYWHERE, unless in writing and signed by an authorized officer or director of EVERYWHERE.
23.7 Compliance with Laws. Each Party agrees to abide by all local, state, national, and international laws and regulations applicable to such Party's performance under this Agreement, including, without limitation, all licensing, intellectual property and privacy laws. If Customer desires to operate satellite phones while in foreign territories, then Customer shall be required to obtain any and all licensing or approvals that may be required to operate within that foreign territory. EVERYWHERE does not guarantee any authority to radiate from foreign territories other than those allowing trans-border operations of satellite equipment.
23.8 Collection and Processing of Personal Information. Customer shall require its End Users to disclose its collection and processing of personal information, including but not limited to specific geographic location information and, to the extent required by law, obtain consent for such processing from the data subject. The End User shall be required to agree to comply with all applicable U.S. and international laws and requirements regarding the collection and processing of personal information, including if required by applicable law obtaining the consent of any individuals regarding the collection and use of personal information.
23.9 Human Rights Violations. Customer may not use or allow others to use the Products, Services or EVERYWHERE Satellite Services in any way that results, directly or indirectly, in the physical or mental injury or mistreatment or violation of the human rights of any person. If Customer learns of any such use in any respect set forth above, it shall immediately notify EVERYWHERE of such circumstances.
23.10 Non-Solicitation. No member of either Party’s personnel shall during the Term of this Agreement and for one year thereafter, without the prior written consent of the other Party, solicit the employment of any employee, former employee (separated less than 6 months), or consultant or subcontractor of the other Party or hire any employee, former employee, or consultant or subcontractor of the other Party who has been involved in the negotiation, operation or performance under this Agreement or any amendment or extension thereof.
23.11 Attorneys’ Fees. In the event that either Party breaches the terms of this Agreement and arbitration is brought for any breach and\or enforcement thereof, then the arbitrator shall award the prevailing Party reasonable attorney's fees and related costs.
23.12 Miscellaneous Provisions. A failure or delay of either Party to this Agreement 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. The Parties agree that where the context of any provision indicates an intent that it shall survive the termination or expiration of this Agreement, then it shall so survive. This Agreement shall not create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Except as set forth in this Agreement, neither Party has the right to make commitments of any kind for the other Party. Under no circumstances shall any personnel of either Party be considered to be an employee or agent of the other Party. Except for any express provisions of this Agreement conferring third party beneficiary status, if any, there are no other intended third party beneficiaries of any provision of this Agreement. 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 seek 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. This Agreement may be delivered by electronic means. This Agreement will not be construed in favor of or against either Party solely on the basis of a Party’s drafting or participation in the drafting of any portion of this Agreement. All notices required hereunder shall be in writing and transmitted to EVERYWHERE at its address as first set forth in these Online Commercial Terms, and to Customer’s address as set forth in the applicable Ordering Document unless Customer provides EVERYWHERE with a different address (except for Orders and Acknowledgements which shall be handled as provided in Section 13 (Process for Orders)). Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. Email communications are acceptable methods of communication for any provision under this Agreement that requires the mutually written agreement of the Parties. The preamble hereto shall form an integral part of this Agreement. 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. The Parties expressly request that this Agreement and any document related thereto be drafted in the English language. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
-- EXHIBITS FOLLOW ON NEXT PAGE --
EXHIBIT A
RETURNS
Part I: Return Merchandise Authorization (RMA)
Please direct all RMA requests to RMA@everywherecomms.com.
EXHIBIT B
PROTECTED PATENTS
EXHIBIT C
OPEN SOURCE SOFTWARE
|
Open Source |
Ver. |
Download Link |
Open Source License |
|
|
Name |
Full Text Available at |
|||
|
EVERYWHERE Apps (Android version) |
||||
|
Google Protobuff |
3.4.0 |
3-Clause BSD License |
https://github.com/protocolbuffers/protobuf/blob/master/LICENSE |
|
|
Required Notices: |
||||
|
Bouncy Castle |
1.57.0 |
Modified MIT X11 |
||
|
Required Notices: |
||||
|
MapBox |
5.6.5 |
3-Clause BSD |
https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md |
|
|
Required Notices: |
||||
|
Orhanobut Logger |
2.1.1 |
Apache 2.0 |
||
|
Gson |
2.8.1 |
Apache 2.0 |
||
|
Realm |
4.1.1 |
Apache 2.0 |
||
|
EVERYWHERE Apps (iOS version) |
||||
|
IDZSwiftCommonCrypt |
0.10.0 |
The MIT License |
||
|
Required Notices: |
||||
|
MapBox |
5.6.5 |
3-Clause BSD |
https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md |
|
|
Required Notices: |
||||
|
RealmSwift |
3.1.1 |
Apache 2.0 |
||
|
SwiftMessages |
4.1.0 |
The MIT License |
||
|
Required Notices: |
||||
|
SwiftProtobuf |
1.0.2 |
Apache 2.0 |
||
|
SwityBeaver |
1.5. |
The MIT License |
||
|
(0)uired
Notices: |
||||
|
Chatto |
3.2.0 |
The MIT License |
||
|
(0)uired
Notices: |
||||
|
ChattoAdditions |
3.2.0 |
The MIT License |
||
|
(0)uired
Notices: |
||||
FACTAL ADD-ON SERVICES
Part I. Factal Services Description
1. EVERYWHERE Safeguard App w/ Factal Part Nos. Vary
The EVERYWHERE Safeguard App w/ Factal is an EVERYWHERE App that operates on either an Android or iOS smartphone, purpose built for enterprise and government entities with employees on-the-go with the added functionality of the Factal data feed. The Factal data feed provides Factal Risk Intelligence in the EVERYWHERE App for incidents within 50 miles of the End User’s current location. The EVERYWHERE Safeguard App operates in standalone mode when accessing Wi-Fi, using data from wireless cellular providers, or it may be paired via Bluetooth with EVERYWHERE Garmin inReach Mini to provide global connectivity and communications. The EVERYWHERE Safeguard App provides Global SOS, secure personnel and team tracking and communications to provide mobile situational awareness.
2. EVERYWHERE Satellite Risk Intelligence Notifications w/ Factal Part Nos. Vary
EVERYWHERE Satellite Risk Intelligence Notifications w/ Factal provides enterprise and government entities with employees on-the-go with the added functionality of Factal alerting. Factal Content delivered over Airtime (Iridium Satellite) provides End Users with Factal alert messages delivered directly to an End User’s Safeguard App or their EVERYWHERE inReach Devices for Severity Five (5) incidents occurring within 50 miles of the End User’s current location.
Part II. Contractual Pass-Through Provisions for Factal Services
As the Factal Services are a component of the overall Services, all of the terms and conditions related to Services as defined in the Agreement also apply to the Factal Services. In addition, the following supplemental terms and conditions also apply to the Factal Services.
3. License to Factal Services.
3.1 Factal Services License Grant. If specified in an Ordering Document, and in consideration for Customer’s payment obligations for Subscription Fees set forth in Ordering Documents, EVERYWHERE grants Customer a limited, nontransferable, and nonexclusive right to access and use the Factal Services, including the right to retrieve information, functionality, and/or data (“Factal Content”) from databases provided with the Factal Services, only during the Subscription Period for the Factal Services (“Factal License”) as set forth in the Ordering Document and in accordance with the Specifications. No license is granted under any Factal License to access, copy, or use the software that supports the Factal Services, except in connection with the Factal License. The Factal License shall be considered one of the Licenses granted under the Agreement.
3.2 Factal Use Restrictions. Except as may be agreed to in writing by EVERYWHERE, Customer shall not, and shall not permit or enable any other person or entity to: (i) use the Factal Services beyond the scope of the Factal License; (ii) use the Factal Services in violation of any federal, state or local law, regulation or rule; (iii) use or enable End User to use the Factal Services for the purposes of testing or comparison of Factal Services, machine learning, or for any purpose competitive with Factal Services; (iv) distribute or allow access or linking to the Factal Services other than through the EVERYWHERE Services; (v) use the Factal Services in a way that is false or misleading; (vi) use the Factal Services for surveillance of individuals without their consent; or (vii) use the Factal Services for or on behalf of, or make available to, government entities engaged in military or law enforcement; or to paramilitary organizations.
3.3 Compliance Measures. The Factal Services may contain security features designed to prevent unauthorized use of the Factal Services, such as use of the Factal Services in violation of any restrictions set forth in this Agreement. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to any such security features.
3.4 Consent to Collection and Use of Information. Customer agrees: (a) to the terms of Factal’s privacy policy located at https://www.factal.com/privacy (“Factal Privacy Policy”); and (b) that Factal and its affiliates may collect and use information regarding use of the Factal Services by Customer or through the Factal Services and about equipment through which it is accessed and used consistent with the Factal Privacy Policy and that such information will be used for (i) improving the performance of the Factal Services or developing updates or enhancements thereto; and (ii) verifying Customer’s compliance with the terms of this Agreement and enforcing EVERYWHERE’s and Factal’s rights in the Factal Services. Any such information shall be considered Confidential Information of Customer and Factal. No End User personally identifiable information is provided by EVERYWHERE to Factal.
4. Warranties.
4.1 Factal Services Warranty. EVERYWHERE warrants during the applicable Subscription Period that the Factal Services set forth in any applicable Ordering Documents will operate in material accordance with the Specifications. Customer’s sole remedy for any claims under this Section shall be to correct such failures at no charge to Customer.
4.2 Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE FACTAL SERVICES, FACTAL CONTENT, AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EVERYWHERE DOES NOT WARRANT THAT THE FACTAL SERVICES, FACTAL SERVICES, OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS. FURTHER, THE FACTAL SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR UNFORESEEN HARDWARE, SOFTWARE, TELECOMMUNICATIONS, SERVICE PROVIDER FAILURES, AND/OR SCHEDULED MAINTENANCE. IN ANY SUCH CASE, EVERYWHERE CANNOT GUARANTEE THE DURATION OF ANY OUTAGE BUT WILL USE REASONABLE EFFORTS TO RESTORE ACCESS TO THE FACTAL SERVICES WITHIN A REASONABLE TIME.
5. Additional Indemnification Obligations. Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless EVERYWHERE, and each of its officers, directors, owners, employees, agents, and Licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party Losses arising out of or in connection with: (i) any claims arising out of Customer’s breach of the obligations set forth in Section 3.2 (Factal Use Restriction) of this Exhibit, the section of the Agreement captioned “Limitations on Use”, the Factal Privacy Policy, any confidentiality provisions of this Agreement, or (ii) Customer’s failure to comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement.
EXHIBIT E
TWILIO SMS ADD-ON SERVICES
Part I. Twilio SMS Services Description
EVERYWHERE Dedicated SMS Number allows EVERYWHERE Garmin inReach End Users to use a directly-assigned phone number to two-way Message from their inReach Device. End Users can share their Dedicated SMS Number with team members who can initiate Messages and communicate directly to inReach Devices.
Part II. Contractual Pass-Through Provisions for Twilio SMS Services
As the Twilio SMS Services are a component of the overall Services, all of the terms and conditions related to Services as defined in the Agreement also apply to the Twilio SMS Services. In addition, the following supplemental terms and conditions also apply to the Twilio SMS Services.
1. Definitions
“Dedicated SMS Number” means a 10-digit phone number available under the numbering plan for the Public Switched Telephone Network for the United States and Canada (NANP).
“End User Data” means data and other information made available by End Users to Twilio in connection with your use of the Twilio SMS Services under this Agreement.
“Service Usage Data” means any data that is derived from the use of the Twilio SMS Services that does not directly or indirectly identify End Users or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Twilio SMS Services performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify End Users or any natural person.
“SMS Guidelines” mean the guidelines provided by Twilio at https://www.twilio.com/en-us/guidelines/sms.
“Twilio” means, as applicable:
(i) Twilio Inc., a Delaware corporation, with a place of business at 101 Spear Street, 5th Floor, San Francisco, California, 94105, USA, if the entity using the Twilio SMS Services is domiciled in any country outside of the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco, other than Japan;
(ii) Twilio Ireland Limited, a company registered in the Republic of Ireland, whose registered address is 3 Dublin Landings, North Wall Quay, Dublin 1, Ireland if the entity using the Twilio SMS Services is domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco;
(iii) Twilio Japan G.K., a Japanese company with a place of business at Link Square Shinjuku 16F, 5-27-5 Sendagaya, Shibuya-ku, Tokyo 151-0051, Japan if the entity using the Twilio SMS Services is domiciled in Japan.
“Twilio Acceptable Use Policy” means certain terms relating to the use of the Services, including the Twilio SMS Services and Country Specific Requirements set forth therein, the current version of which is available at https://www.twilio.com/legal/aup.
“Twilio Data Protection Addendum” means the personal data processing-related terms for the Twilio SMS Services, the current version of which is available at https://www.twilio.com/legal/data-protection-addendum.
2. License to Twilio SMS Services.
2.1 Twilio SMS Services License Grant. If specified in an Ordering Document, and in consideration for Customer’s payment obligations for Subscription Fees set forth in Ordering Documents, EVERYWHERE grants Customer a limited, nontransferable, and nonexclusive right to access and use the Twilio SMS Services only during the Subscription Period for the Twilio SMS Services (“Twilio SMS License”) as set forth in the Ordering Document and in accordance with the Specifications. No license is granted under any Twilio SMS License to access, copy, or use the software that supports the Twilio SMS Services, except in connection with the Twilio SMS License. The Twilio SMS License shall be considered one of the Licenses granted under the Agreement.
2.3 Suspension of Twilio SMS Services. EVERYWHERE or Twilio may suspend the Twilio SMS Services upon written notice to Customer if EVERYWHERE or Twilio, in good faith, determines: (a) that the End User materially breached the Twilio Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Twilio SMS Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Twilio SMS Services; (c) that its provision of the Twilio SMS Services is prohibited by applicable law or regulation; (d) there is any use of the Services by End Users that threatens the security, integrity, or availability of the Twilio SMS Services; or (e) that information in the End User’s account is untrue, inaccurate, or incomplete. Customer remains responsible for the Subscription Fees for the Twilio SMS Services.
3.1 Service Usage Data. As between the Parties, Twilio exclusively owns and reserves all right, title, and interest in and to the Twilio SMS Services, the Documentation, Twilio's Confidential Information, and Service Usage Data.
4. Warranties.
4.1 Twilio SMS Services Warranty. EVERYWHERE warrants during the applicable Subscription Period that the Twilio SMS Services set forth in any applicable Ordering Documents will operate in material accordance with the Specifications. Customer’s sole remedy for any claims under this Section shall be to correct such failures at no charge to Customer.
4.2 Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE TWILIO SMS SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. CUSTOMER ACKNOWLEDGES THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT EVERYWHERE AND TWILIO WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF END USER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK.
5. Additional Indemnification Obligations. Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless EVERYWHERE, and each of its officers, directors, owners, employees, agents, and Licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party Losses arising out of or in connection with any claims arising out of Customer’s breach of the obligations set forth in Section 2.2 (Customer Responsibilities) of this Exhibit or the section of the Agreement captioned “Limitations on Use”.
6. EXCEPTIONS TO THE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE SECTION OF THE AGREEMENT CAPTIONED “LIMITATION OF LIABILITY”, SUCH LIMITATIONS DO NOT APPLY TO ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 2.2 (CUSTOMER RESPONSIBILITIES) OF THIS EXHIBIT BY CUSTOMER OR ITS END USERS.