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EVERYWHERE Evaluation Agreement

 

Online Trial Agreement

 

February 29, 2024  Ver: 4229

 

PLEASE READ THIS AGREEMENT CAREFULLY.

 

This Online Trial Agreement (the “Agreement”) is a legally binding contract between EVERYWHERE Communications, Inc., a Delaware corporation (“EVERYWHERE”) with offices located at 30 West Street, Annapolis, Maryland 21401 and the other legal entity (“Customer”) named on the web form that references this Online Trial Agreement and that granted access to this Trial.

 

COMPONENTS OF THE COMMERCIAL EVERYWHERE OFFERINGS EXCLUDED FROM THIS TRIAL
This Online Trial Agreement governs your use of a TRIAL of EVERYWHERE Products and Services provided hereunder.  The Products and Services provided hereunder do not contain all the functionality of the complete commercial, production version of the Products and Services (the “Commercial EVERYWHERE Offerings”).  

No Satellite Service:  The Products and Services provided hereunder do not provide any satellite connectivity powered by the Iridium constellation of low-earth orbiting (LEO) satellites or any other satellite networks (“Airtime”).

 

EVERYWHERE PROVIDES THE PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS 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 AND 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 AND GRANT ANY TRIAL USE OF THE PRODUCTS AND SERVICES TO CUSTOMER AND CUSTOMER MUST NOT INSTALL OR USE THE PRODUCTS OR ACCESS THE SERVICES.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCTS AND SERVICES THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF EVERYWHERE'S PRODUCTS AND SERVICES.

 


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:

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 this Online Trial Agreement and the attached Exhibits.

"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.

"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 and 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 authorized employees or other individual persons who are designated by Customer as being licensed to use the Products and Services.

EULA” means the terms and conditions of the End User license set forth at https://everywherecomms.com/pages/eula. 

EVERYWHERE App” means 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.

EVERYWHERE Hub” means the online hosting services, owned, operated or controlled by EVERYWHERE consisting of various infrastructure components, including but not limited to servers, website portal, networking components, system software, internet access, and content all as more specifically defined in Exhibit A (Products and Services).

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 A: Products and Services Description

Exhibit B: Protected Patents

Exhibit C: Open-Source Software

Exhibit D: Factal Add-On Service

Factal” means Factal Inc., a Delaware corporation, with a principal place of business at 600 1st Ave., Seattle, Washington 98104, U.S.A.

Factal Services” means the services used to provide Factal content through the EVERYWHERE Hub as described in more detail in the Specifications.

Garmin” means Garmin Services, Inc.

Hosted Services” means the EVERYWHERE Hub, an online hosting services, owned, operated or controlled by EVERYWHERE consisting of various infrastructure components, including but not limited to servers, networking components, system software, internet access, and content all as more specifically defined in Exhibit A (Products and Services Description).

Licensor” means EVERYWHERE’s licensors or suppliers who provide products or services to EVERYWHERE that are sublicensed to Customer or used to facilitate the Products or Services under the terms of this Agreement.

Message” means a message sent or received from the EVERYWHERE App through the EVERYWHERE Hub.

Products” means the EVERYWHERE Apps.

Services” means the (i) EVERYWHERE Hub; and (ii) Factal Services to the extent they are being licensed to Customer under this Agreement. Services do not include Airtime.

Smartphone” means a smartphone capable of installing and operating the EVERYWHERE App.

Specifications” means the specifications for the Products and Services as defined in this Agreement.

2.     Evaluation of Products and Services

2.1      Trial Period.  This Agreement shall commence as of the earliest date that Customer: (i) clicked the "accept" button to this Online Trial Agreement; (ii) otherwise provided acceptance of this Online Trial Agreement; or (iii) first used the Products or Services, and unless earlier terminated as provided herein, shall continue for a period of forty-five (45) days (“Trial Period”).  This Agreement and the Trial Period may only be extended by the written consent of EVERYWHERE. The Trial Period and all authorized extensions, if any, shall collectively be referred to as the “Term”.

2.2      Trial Authorization.  During the Trial Period, EVERYWHERE agrees to provide Customer with an evaluation license to the Products and provide Customer with access to the Services listed in Exhibit A (Products and Services Description) (collectively, the “Products and Services”), consistent with the license grants set forth herein, at no charge to Customer, solely for evaluation purposes in Customer’s internal, non-production environment for non-commercial use, and such use shall be consistent with the provisions of this Agreement (the “Trial”). 

3.     Licenses. Subject to the terms and conditions of this Agreement, EVERYWHERE grants to Customer, and Customer accepts, strictly during the Trial Period the following licenses (collectively, the “Licenses”):

3.1      EVERYWHERE Hub Access License Grant.  EVERYWHERE grants Customer a limited, nontransferable, and nonexclusive right to access and use the EVERYWHERE Hub during the Trial Period for the Services (“Hub Access License”).  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.

3.2      EVERYWHERE App License Grant.  EVERYWHERE grants Customer a limited, nontransferable, and nonexclusive right to use, execute, and copy the EVERYWHERE Apps (but not create derivative works thereof) on Smartphones during the Trial Period for the EVERYWHERE App (“EVERYWHERE APP License”) in accordance with the Specifications consistent with the provisions of this Agreement.  No license is granted under this Agreement to access, copy, or use the source code to the EVERYWHERE Apps.

3.3      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 or 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 Documentation; (vii) permit the Products, Services 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 or Services to any third party (whether or not obtained with EVERYWHERE’s assistance) without EVERYWHERE’s prior express written consent; (ix) use the Products 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 or 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.

3.4      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.  

3.5      End User License Agreement and Privacy Policy.    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 collects, uses, and shares 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.

3.6      Federal Government License.  The software underlying the Services and embedded within the Products, and any associated Documentation are each considered a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer shall receive only those rights with respect to the  Products, Services, and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

3.7      No License to Affiliates.  Any and all Licenses are granted to Customer and not, by implication or otherwise, to any Affiliate of Customer.

3.8      Reserved Rights.  EVERYWHERE reserves all rights not expressly granted under this Agreement.

4.     EVERYWHERE Hub

4.1      Scope and Performance of the EVERYWHERE Hub.  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.

4.2      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 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.

4.3      Misuse of the EVERYWHERE Hub.  Customer shall: (a) not unlock, modify or reverse engineer any 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; (viii) 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.

5.     Maintenance and Support.  Support for the Trial is handled via EVERYWHERE’s Customer Support team at no charge to Customer during EVERYWHERE’s normal business hours.  Customer acknowledges that this Agreement does not confer upon Customer any rights to obtain updates or upgrades to the Products and Services.

6.     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.

6.1      EVERYWHERE Monitored SOS.  When an End User generates an emergency signal (“SOS Emergency Services”) on their Device or EVERYWHERE App (an “SOS Emergency Signal”), then all of the provisions of this Section 6.1 apply:

6.1.1      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. 

6.1.2      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.

6.1.3      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.

7.     Customer Obligations

7.1      Installation.  Customer shall be responsible for the installation of the Products and Services and any required third-party software and equipment.

7.2      Access and Passwords.  Customer is responsible for accessing the Hosted Services in accordance with the terms of this Agreement and maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by the authorized end users.  Customer is entirely responsible for all activities that occur under Customer’s account in connection with use of the Hosted Services using Customer’s passwords.  Customer shall immediately notify EVERYWHERE of any unauthorized use of Customer’s account, including, without limitation, each password of an end user accessing the Hosted Services by means of Customer’s account, or any other breach of this Agreement or any security breach known to Customer. EVERYWHERE shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.

7.3      Export of Products and Services. All Products and Services, Documentation, 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 and 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 and Services.  Customer represents that it has not, and will not, export, re-export, or transfer the Products and 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 and 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 and Services for any purposes prohibited by United States law.

8.     Intellectual Property Rights

8.1      EVERYWHERE Intellectual Property Rights.  Customer acknowledges and agrees that the intellectual property rights underlying the Products and Services (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.

8.2      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 8.2 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 8.2, 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.

8.3      Suggestions. Many of EVERYWHERE’s changes to user interfaces, features, functionality, and other aspects of the Products and 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 and Services (all of the foregoing, collectively, “Suggestions”). All customers benefit from EVERYWHERE incorporating Suggestions in future releases of the Products and 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 and 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.

8.4      Survival of Intellectual Property Rights.  This Section 8 (Intellectual Property Rights) shall survive any termination or expiration of this Agreement.

9.     WARRANTY DISCLAIMER. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE Products and Services IS AT CUSTOMER’S SOLE RISK. EVERYWHERE PROVIDES THE PRODUCTS AND SERVICES ON AN “AS IS” BASIS AND EVERYWHERE EXPRESSLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  EVERYWHERE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EVERYWHERE SPECIFICALLY DISCLAIMS: (I) THE SUITABILITY OF THE PRODUCTS AND SERVICES FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS; AND (II) ANY ILLEGAL ACTIVITY BY THE CUSTOMER OR AN END USER.

10.  Indemnification

10.1    Indemnification by Customer.  Customer shall indemnify and hold EVERYWHERE, its licensors, suppliers, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Products and Services (collectively the “Indemnified Parties”) harmless from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with Customer’s use of the Products and Services.

10.2    Indemnity Procedure.  The Indemnified Party shall provide the Indemnifying Party with (i) prompt written notice of any claims under this Section 10 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. 

10.3    Exclusive Remedy for Indemnification.  The remedies set forth in this Section 10 (Indemnification) shall be the exclusive remedies of the Parties with reference to any claims for indemnification.

10.4    Survival for Indemnification.  The provisions of this Section 10 (Indemnification) shall survive any termination of this Agreement.

11.  LIMITATION OF LIABILITY

11.1    LIMITATION ON INDIRECT DAMAGES. NEITHER OF THE PARTIES NOR THEIR LICENSORS SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, 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 OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY OR THEIR LICENSORS.

11.2    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:

11.2.1    ANY FORCE MAJEURE EVENT; OR

11.2.2    FAILURE, DELAY, OR INACCURACY OF THE GPS SATELLITES IN PROVIDING LOCATION COORDINATES; OR

11.2.3    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

11.2.4    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

11.2.5    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

11.2.6    FAILURE OF, OR DELAY IN THE PRODUCTS TO TRANSMIT OR RECEIVE ANY MESSAGES; OR

11.2.7    FAILURE OF, OR DELAY BY, SERVICE PROVIDERS TO PERFORM THE APPLICABLE SERVICE FOR WHICH EACH IS CONTRACTED; OR

11.2.8    FAILURE TO OBTAIN A CLEAR LINE OF SIGHT TOWARD THE SATELLITE SYSTEMS; OR

11.2.9    FAILURE TO PROPERLY INSTALL SOFTWARE OR CONFIGURE THE PRODUCTS; OR

11.2.10  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

11.2.11  NON-COMPATIBILITY OF PRODUCTS WITH SMARTPHONE OPERATING SYSTEMS AND THIRD-PARTY SOFTWARE; OR

11.2.12  FAILURE OR INADEQUACY OF POWER SUPPLY FOR PRODUCTS AND\OR ASSOCIATED ACCESSORIES.

11.3    LIMITATION ON DIRECT DAMAGES. BOTH PARTIES SHALL BE LIABLE TO THE OTHER FOR DIRECT DAMAGES ONLY, IN AN AMOUNT NOT TO EXCEED US$1,000 IN THE AGGREGATE FOR ALL CLAIMS.

11.4    Applicability and Survival of Limitations.  If Customer is located in a European Union country, Switzerland, Norway, Iceland, Australia or New Zealand, nothing in this Section 11 shall remove or limit EVERYWHERE’s liability for death or personal injury  The provisions of this Section 11 (Limitation of Liability) shall survive any termination of this Agreement.

12.  Suspension. Upon EVERYWHERE’s reasonable belief that criminal or otherwise improper activity may be associated with Customer’s use of the Services, EVERYWHERE may, without incurring any liability, temporarily suspend or discontinue Customer’s use of the Services.

13.  Termination

13.1    Termination For Convenience.  Either Party may terminate this Agreement immediately for convenience by providing the other Party with advanced written notice.

13.2    Rights and Obligations Upon Termination.  Upon termination of this Agreement by either Party: (a) all Licenses granted hereunder shall terminate immediately; and (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.

14.  General Provisions

14.1    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 intellectual property and privacy laws.

14.2    Governing Law and Venue.  This Agreement shall be governed by the laws of the State of Delaware without regard to its conflicts or choice of law principles.  Any and all claims arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought in the state courts located in Anne Arundel County, Maryland or the federal courts located in Baltimore, Maryland.  Each party hereby submits to and accepts the jurisdiction of such courts for purposes of all legal proceedings and irrevocably waives any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.  The Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  The prevailing Party in any action hereupon will be entitled to recover, in addition to any other award, reasonable related costs, expenses, and legal costs and fees.

14.3    Assignment.  This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred by Customer without the prior written consent of the EVERYWHERE.  Any attempted assignment, delegation, sublicense or transfer by Customer without such written consent shall be void and of no effect.  EVERYWHERE shall be free to assign its rights and obligations hereunder.

14.4    Miscellaneous Provisions.  This Agreement may be updated from time-to-time by EVERYWHERE by its posting changes thereto on its website, located at https://everywherecomms.com/pages/trial. The Parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive.  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.  All notices required hereunder shall be in writing and transmitted to EVERYWHERE at its address as first set forth in this Online Trial Agreement, and to Customer’s address as set forth in the web form that granted access to this Trial unless either Party provides written notice to the other Party of a different address.  Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation.  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.

 

 

 

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EXHIBIT A

PRODUCT AND SERVICES DESCRIPTION

 

 

1.     EVERYWHERE Safeguard App                                                                             Part No. 600-003

The EVERYWHERE Safeguard App 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. 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 the EC-100 or the 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 and duty of care for your company’s most important asset, your people.

 

2.     EVERYWHERE Hub                                                                                             Part No. 1000-001

The EVERYWHERE Hub is purpose built for your firm’s asset tracking and management both for day-to-day operations and for emergency response in situations where personnel recovery and search and rescue operations are required. The Hub provides real-time situational awareness and asset tracking by consolidating position, status, and Message information, and enables communication with two-way capable units in the field.

 

3.     EVERYWHERE Intelligent Routing                                                                      Part No. 1000-002

EVERYWHERE’s Intelligent Routing technology provides seamless and dynamic routing of your communications in the most efficient manner based on available bandwidth among four network options—Satellite, Cellular, SMS, and Wi-Fi. Integrated within the EVERYWHERE Smartphone App, as well as within the EVERYWHERE Hub, EVERYWHERE Intelligent Routing delivers Messages between the App and the Hub, providing always connected communications in the most cost-effective manner.

 

 


EXHIBIT B

PROTECTED PATENTS

 

 

Title

Filing Date

USPTO Patent Number

Issue Date

Mobile Asset Tracking Unit System & Method

March 13, 2007

7,843,335

November 30, 2010

Mobile Asset Tracking Unit System & Method

November 10, 2010

7,924,153

April 12, 2011

Mobile Unit & System Having Integrated Mapping, Communications & Tracking

April 1, 2007

7,970,534

June 28, 2011

Mobile Unit & System Having Integrated Mapping, Communications & Tracking

June 27, 2011

8,099,235

January 17, 2012

Mobile Asset Tracking Unit System & Method

April 8, 2011

8,144,008

March 27, 2012

Methods and Apparatus for Emergency Tracking

May 25, 2011

8,538,373

(Subject Invention)

September 17, 2013

Mobile Asset Tracking Unit System & Method

March 26, 2012

8,680,988

March 25, 2014

Mobile Unit & System Having Integrated Mapping, Communications & Tracking

January 13, 2012

8,700,313

April 15, 2014

 


EXHIBIT C

OPEN-SOURCE SOFTWARE

 

Open Source
Software Name

Ver.

Download Link

Open-Source License

Name

Full Text Available at

EVERYWHERE Apps (Android version)

Google Protobuff

3.4.0

https://github.com/protocolbuffers/protobuf

3-Clause BSD License

https://github.com/protocolbuffers/protobuf/blob/master/LICENSE

Required Notices:
Copyright 2008 Google Inc. All rights reserved.  Neither the name of Google Inc. nor the names of its
contributors may be used to endorse or promote products derived from
this software without specific prior written permission.
See the Full Text of the 3-Clause BSD License referenced above for other conditions and restrictions.

Bouncy Castle

1.57.0

https://rtyley.github.io/spongycastle/

Modified MIT X11

http://www.bouncycastle.org/licence.html

Required Notices:
Copyright (c) 2000 - 2018 The Legion of the Bouncy Castle Inc. (https://www.bouncycastle.org)
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the conditions set forth in the Full Text of the Modified MIT X11 Open Source License referenced above.

MapBox

5.6.5

https://github.com/mapbox/mapbox-gl-native

3-Clause BSD

https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md

Required Notices:
mapbox-gl-native copyright (c) 2014-2018 Mapbox.
See the Full Text of the 3-Clause BSD License referenced above for other conditions and restrictions.

Orhanobut Logger

2.1.1

https://github.com/orhanobut/logger

Apache 2.0

http://www.apache.org/licenses/LICENSE-2.0

Gson

2.8.1

https://github.com/google/gson

Apache 2.0

http://www.apache.org/licenses/LICENSE-2.0

Realm

4.1.1

https://github.com/realm/realm-java

Apache 2.0

http://www.apache.org/licenses/LICENSE-2.0

EVERYWHERE Apps (iOS version)

IDZSwiftCommonCrypt

0.10.0

https://github.com/iosdevzone/IDZSwiftCommonCrypto

The MIT License

https://opensource.org/licenses/MIT

Required Notices:
Copyright (c) 2014 idz
See the Full Text of the MIT License referenced above for other conditions and restrictions.

MapBox

5.6.5

https://github.com/mapbox/mapbox-gl-native

3-Clause BSD

https://github.com/mapbox/mapbox-gl-native/blob/master/LICENSE.md

Required Notices:
mapbox-gl-native copyright (c) 2014-2018 Mapbox.
See the Full Text of the 3-Clause BSD License referenced above for other conditions and restrictions.

RealmSwift

3.1.1

https://github.com/realm/realm-cocoa

Apache 2.0

http://www.apache.org/licenses/LICENSE-2.0

SwiftMessages

4.1.0

https://github.com/SwiftKickMobile/SwiftMessages

The MIT License

https://opensource.org/licenses/MIT

Required Notices:
Copyright (c) 2016 SwiftKick Mobile LLC
See the Full Text of the MIT License referenced above for other conditions and restrictions.

SwiftProtobuf

1.0.2

https://github.com/apple/swift-protobuf

Apache 2.0

http://www.apache.org/licenses/LICENSE-2.0

SwityBeaver

1.5.

https://github.com/SwiftyBeaver/SwiftyBeaver

The MIT License

https://opensource.org/licenses/MIT

Required Notices:
Copyright (c) 2015 Sebastian Kreutzberger
See the Full Text of the MIT License referenced above for other conditions and restrictions.

Chatto

3.2.0

https://github.com/badoo/Chatto

The MIT License

https://opensource.org/licenses/MIT

Required Notices:
Copyright (c) 2015 Badoo Development
See the Full Text of the MIT License referenced above for other conditions and restrictions.

ChattoAdditions

3.2.0

https://github.com/badoo/Chatto

The MIT License

https://opensource.org/licenses/MIT

Required Notices:
Copyright (c) 2015 Badoo Development
See the Full Text of the MIT License referenced above for other conditions and restrictions.

 

 


EXHIBIT D

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.

 

 

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.

 

2.     License to Factal Services.

2.1      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.

2.2      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.

2.3      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.

2.4      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.

3.     Warranties.

3.1      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.

3.2      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.

4.     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 2.2 (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.

 

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