Terms and Conditions and End User License Agreement

 

LINK LABS DIRECT CUSTOMER

SOFTWARE AS A SERVICE AND END USER LICENSE AGREEMENT

TERMS AND CONDITIONS

 

1          DEFINITIONS

Definitions are provided when first introduced in these Terms and Conditions

 

2          SERVICES AND RIGHT TO USE

2.1        In consideration of the fees paid by Customer under this Agreement, Company agrees to provide Customer access to the Services in accordance with Appendix 1 (Delivery and Support Obligations).  Specific components of the Service to be provided to Customer are as outlined in Appendix 2 (Services Description and Components) annexed hereto.

2.2        Subject to the terms and conditions of these terms, Link Labs, Inc. (“Company”) will provide Customer the Services during the applicable term for use of the Services (the “Term”), and hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Services solely for Customer’s and its affiliates’ own internal business operations (provided that such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar usages) during the Term.  The rights granted herein are expressly limited to use by Authorized Users to: (i) access the features and functions of the Services via the Internet ordered solely for Customer’s internal business purposes and the integration with a third-party cloud service for purposes of offering Customer’s end users a web interface; and (ii) view and use the Services content made available to Customer through the Services solely for Customer’s internal business purposes. “Authorized Users” means Customer’s and its affiliates’ employees and contractors who are authorized by Customer and its affiliates to use the Services.  Customer will be responsible for ensuring that all Authorized Users comply with the terms and conditions of this EULA.

 

3          RESTRICTIONS AND RESPONSIBILITIES

3.1        Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on the Services; (c) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) enable any device for use with the Services which is not properly covered under an applicable recurring per device fee; (e) remove any proprietary notices or labels; (f) use the Services to build a similar or competitive product or service; (g) without Company’s express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; (h) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof or (i) otherwise use the Services in a manner inconsistent with this Agreement.

3.2        Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies and documentation then in effect and all applicable laws and regulations (including export laws).    Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of this Agreement.  

3.3        Customer will be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of accounts linked to Customer’s login credentials.

3.4        Company will comply with the Hosted Data Obligations set forth in Appendix 3.

3.5        Company reserves the right to modify software, firmware and Services functionality, at any time as long as such modification is made across Company’s customer base and will have no liability for any such modification.  Company shall provide Customer with sixty (60) days’ notice of any proposed changes to an API that impacts the functionality of the Services.  In the event that Company adds additional functionality to the Services that it generally does not make available to similar users of the Service (e.g., with similar restrictions and subscription levels), Company may condition the implementation of such modifications on Customer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the version of the Services that Company makes generally available (without such features) without paying additional fees.

3.6        Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.  Customer will ensure that any use of the Service by the Authorized Users is in accordance with the terms of this Agreement.  Customer agrees to notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security.  Customer acknowledges and agrees that the Services may be subject to the U.S. Export Administration Laws and Regulations.  Customer agrees that no part of the Services or information obtained through use of the Services, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government.  Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact.  Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. 

 

4          CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1        As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company’s Confidential Information includes, without limitation, the Services and the terms of this Agreement.  Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.  Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement.  Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.  Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. 

4.2        As between the parties, Company will own and retain all right, title and interest in and to (a) the Services, and all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.

4.3        Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (directly and indirectly through multiple tiers), nontransferable (except as set forth in Section 9): perpetual, irrevocable right and license during and after the Term to collect, use and analyze data and other information relating to the Services and related systems and technologies  and  Company will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. 

4.4        Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Services.  Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

 

5          PAYMENT OF FEES

5.1        Customer will pay Company the fees described in the Order Form in accordance with the terms herein and therein (the “Fees”). If Company chooses to bill through an invoice, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice.  Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. 

5.2        Customer will be responsible for all taxes associated with Services other than taxes based on Company’s net income.  If any past due payment has not been received by Company within ten (10) days from the time such payment is due, Company may suspend access to the Services until such payment is made. At its discretion, Company may increase the pricing stated on the Order Form for any Renewal Term (as defined below) by giving Customer at least sixty (60) days’ notice prior to the end of the then-current term.

5.3        In the event that Company incurs any increased costs from third party software licenses or annual support fees associated with the provision of the Services to Customer during the term of this Agreement, Company reserves the right to pass these costs onto the Customer.  

 

6          TERM AND TERMINATION

6.1        Subject to earlier termination as provided below, the term of this Agreement will commence on the Effective Date and continue in effect so long as the Access Term under at least one Order remains in effect, unless earlier terminated by either Customer or Company as set forth herein (collectively, the “Term”).

6.2        Termination for Breach.  Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter: (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within  forty-five (45) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.

6.3        Company may at any time terminate its agreement with Customer if Company is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful).

6.4        If Customer fails to pay undisputed amounts in accordance with this Agreement or, if and as necessary to protect the Conductor Data System Content in the event of a threat to the security of the Service, Company will have the right, in addition to any of its other rights or remedies, upon five (5) days’ notice, to suspend the provision of the Services to Customer without liability to Customer until such amounts are paid in full or such breach is cured (in Company’s sole discretion), as applicable.  “Conductor Data System Content” means the Conductor Data System information, data, content and materials provided by Company through the Service.

6.5        In addition to any other remedies it may have, either party may terminate this Agreement upon written notice to the other party: (a) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings; provided, that, if such proceeding is involuntary, it is not dismissed within forty-five (45) days of its institution, (b) upon the other party's making an assignment for the benefit of creditors, or (c) upon the other party's dissolution or cessation of business without a named successor. 

6.6        Except as expressly set forth in paragraph 6.7, upon expiration or termination of this Agreement, all rights granted by Company hereunder and all obligations of Company to provide the Services will immediately terminate and Customer will cease use of the Services. Upon expiration or termination of this Agreement, each party will return or destroy all copies or other embodiments of the other party’s Confidential Information. The provisions of Sections 3, 4, 5.3, 6.3, 7, 8 and 9 will survive any termination or expiration of this Agreement.

7          WARRANTY AND DISCLAIMER

7.1        Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.

7.2        Limited Warranty.  Company warrants that the Services will conform to the Company’s then current Documentation in all material respects for the Services under normal use and circumstances.  If Customer notifies Company of a breach of the foregoing warranty and Company can validate such breach,  Company will use best efforts to remedy any such non-conforming Services.  The foregoing constitutes Customer’s sole and exclusive remedy for any breach of warranty. Customer agrees and acknowledges that the Conductor Data System Content is based on information believed to be accurate and Company makes no guarantee regarding the accuracy of such Conductor Data System Content.

7.3        DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. THE SERVICES ARE PROVIDED ON AN AS-IS BASIS. Company does not warrant that the Services will be uninterrupted or error free.

7.4        Internet Delays.  THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS OR ANY OTHER FORCE MAJEURE EVENT.

8          LIMITATION OF LIABILITY

8.1        IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  COMPANY WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

8.2        THE TOTAL CUMULATIVE LIABILITY OF COMPANY ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, AND ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE.  THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT COMPANY’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. 

9          INDEMNIFICATION

9.1        Company shall defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Services infringes any copyright or misappropriates a trade secret of any third party. Further, Company shall indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.  Notwithstanding the foregoing, Company’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Services by any party other than Company without Company’s express consent; (b) the combination, operation, or use of the Services with other product(s), data or services where the Services would not otherwise be infringing; or (c) unauthorized or improper use of the Services.  If the use of the Services by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (i) procure for Customer the right to continue using the Services as set forth hereunder, (ii) replace or modify the Services to make the Services non-infringing so long as the Services has at least equivalent functionality, (iii) substitute an equivalent for the Services or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement (subject to a refund of pre-paid fees (if any) for the remaining part of the then-current term).  This Section 9.1 states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

9.2        Customer shall defend Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) against any Claims arising from any use or disclosure by Customer of the Services in violation of this Agreement.  Further, Customer shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.

9.3        If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

10          WIRELESS CARRIERS

10.1  This Agreement may incorporate additional terms and conditions accompanying transmission of data by 3rd party wireless carriers, which can be found at https://www.link-labs.com/wireless-carrier-provisions

 11          MISCELLANEOUS

11.1      Company reserves the right to identify Customer as a customer of the Services on Company’s website and in other marketing or promotional communications. 

11.2      Neither party may assign this Agreement or assign or delegate its rights or obligations under this Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement without such consent to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void.

11.3      If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions will govern unless the Order Form expressly amends a provision herein. 

11.4      No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. 

11.5      All notices under this Agreement will be in writing and sent to the recipient’s address on the Order Form (unless subsequently updated in writing) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 

11.6      Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. 

11.7      This Agreement shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Annapolis, Maryland and waives any jurisdictional, venue, or inconvenient forum objections to such courts. 

11.8      Customer acknowledges that any unauthorized use of the Services may cause irreparable harm and injury to Company for which there is no adequate remedy at law.  In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Services in any way not expressly permitted by this Agreement.

 

11.9      No change, alteration, modification, waiver, or addition to this Agreement shall be effective unless in writing and properly executed by the parties here




APPENDIX 1

DELIVERY AND SUPPORT OBLIGATIONS

Delivery: Promptly following execution of this Agreement, Company will provide Customer, via email, the URL(s) of the hosted environment of the Service. Upon receiving the URL(s), Customer will confirm to Company the receipt of the URL(s) and the successful access of the hosted environment.

 

Support and Maintenance Includes:

  • Interface/API maintenance. Any other User Interface for Conductor subject to Link Labs approval, granting of which is contingent upon end customer required functionality that Link Labs declines to incorporate into the User Interface.
  • Technical support to the customer (not the Customer’s end users)
  • Patching and pushing software (firmware) updates down to fielded hardware devices such as gateways, access points, and reference points
  • Company shall use commercially reasonable efforts to achieve at least 99.9% availability of the Service measured monthly, not including downtime excused under the Availability section below of this Delivery and Support Obligations Appendix, for production environments. Company shall monitor the availability of the Service 24/7, subject to the Availability section below of this Delivery and Support Obligations Appendix.
  • Company to provide a scalable sized hosting environment to allow a consistent speed of data flow
  • Company uses reasonable industry measures designed to protect the operating environment of the Service against unauthorized physical access and the threats of fire, power, temperature, humidity and other physical forces with the following capability:
    • A secure data center with physical access limited to authorized personnel and protected by multi-level security systems. Other persons are admitted only on an as-needed and supervised basis (such as to maintain hardware components).
    • Continuous, conditioned power supplied by a redundant power infrastructure, including battery backup systems and diesel-powered generators, with regular system testing for continuous availability.
    • Redundant HVAC climate control and fire suppression systems.
  • Company maintains antivirus protection software on the Service. In the event viruses, worms or similar problems are determined to have infected the Service, Company will use commercially reasonable efforts to restore the Service as quickly as reasonably possible.
  • Company will provide sufficient server capacity to provide a productive operating environment for the scope of the Service specified in this Agreement. The Service shall include collection and retention of all statistical, transactional, and configuration data for active end users. Production environments will be configured in a redundant disk configuration to help ensure data availability and recovery. The operating system will be appropriate to the hardware selected for production and non-production use. Industry standard security patches, service packs and anti-virus software will be installed at initial implementation, and updated on a monthly or on an as needed basis, as applicable.
  • Inbound and outbound traffic will be monitored through firewall(s), switches, routers and load balancers utilizing burstable bandwidth.
  • Company staff is available for support and troubleshooting of Severity 0, 1, 2 and 3 problems by phone during regular business hours from Monday through Friday, 8:00 A.M. to 5:00 P.M. local time where Customer’s Designated Technical Support Personnel is located, excluding public holidays and other Company observed holidays.
  • Severity and Resolution Targets: Company will use commercially reasonable efforts to meet the Initial Response and Target Resolution Times associated with the Severity Levels as set forth below:

 

 

Severity Level

Initial Response During Business Hours

Target Resolution Time* During Business Hours

Severity 0 Hosting Problem

(Note, Severity 0 problems cannot be communicated to Link Labs by email)

30 Minutes

2 Hours

Severity 1 Hosting Problem

(Note, Severity 1 problems cannot be communicated to Link Labs by email)

2 Hours

4 Hours

Severity 2 Hosting Problem

4 Hours

24 Hours

Severity 3 Hosting Problem

2 Business Days

5 Business Days

 

 

Severity Level

Initial Response During Non-Business Hours

Target Resolution Time* During Non-Business Hours

Severity 0 Hosting Problem

(Note, Severity 0 problems cannot be communicated to Link Labs by email)

6 hours

24 hours

Severity 1 Hosting Problem

(Note, Severity 1 problems cannot be communicated to Link Labs by email)

6 hours

24 hours

 

  • Severity Definitions: For purposes of these Services:
    • “Severity 0” means a problem in the Service that causes substantial downtime of the Service. There is no viable Workaround available.
    • “Severity 1” means a problem in the Service that results in the loss of critical functions of the Service or a limited number of Users cannot access the Service.
    • “Severity 2” means a problem in the Service that impacts operations and/or efficiency but Customer is still able to use the Service. A Workaround is generally available.
    • “Severity 3” means a technical question about the Service that does not impact Customer’s use of the Service.
  • Company shall use commercially reasonable efforts to resolve each significant issue by providing a workaround, an object code patch or a specific action plan for how Company will address the issue, and an estimate of how long it will take for the issue to be resolved.

 

The following are not included as part of the Services unless specifically identified in Appendix 2:

  • Configuring and managing “value added” services for resellers
  • Costs of ISP services (modems, internet, etc.)
  • Feature enhancements to the existing offering
  • Network operator (cellular) costs not contracted for as part of an Order, and increases in network operator (cellular) costs incurred by Link Labs for any reason, including but not limited to (i) fee increases from network operators, (ii) fee increases due to switching from one network operator to another, (iii) new network operator connections resulting in additional network operator fees

 

Company is responsible to implement the corrective actions needed to resume functionality as quickly as possible and to the above outlined service agreement.

 

Availability. Company will use commercially reasonable efforts to make the Services, including any backup data, available twenty four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which Company shall give at least eight (8) hour notice via the Services and which Company shall schedule to the extent reasonably practicable between Friday at 22:00 EST and Sunday 14:00 EST); or (ii) any unavailability caused by circumstances beyond Company's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company's possession or reasonable control, and denial of service attacks.

 

 

Data Transfer Upon Expiration or Termination: If the Agreement expires or is terminated for any reason by either party except in the case of breach by Customer, Company will make available for download by Customer all statistical, transactional, and configuration data for all active end users stored in Company’s servers.  Customer shall have ninety (90) days to complete such download to Customer’s servers or a replacement service provider’s servers.

 

 

APPENDIX 2

SERVICES DESCRIPTION AND COMPONENTS

AirFinder Subscription Tiers 

SKU

No. of End Points per Tiers (all tag types)

LL-AF2-P-100

100

LL-AF2-P-250

250

LL-AF2-P-500

500

LL-AF2-P-1000

1,000

LL-AF2-P-2500

2,500

LL-AF2-P-5000

5,000

LL-AF2-P-10K

10,000

LL-AF2-P-25K

25,000

LL-AF2-P-50K

50,000

LL-AF2-P-75K

75,000

LL-AF2-P-100K

100,000

LL-AF2-P-500K

500,000

LL-AF2-P-1M

1,000,000

 

AirFinder End Points

 

SKU

End Point Name

LL-AF2-T-C7A

Staff Badge

LL-AF2-T-E7A

Asset Tag

LL-AF2-T-S1A

Temperature Tag

LL-AF2-T-ST-S-LTE-G

SuperTag - Small

LL-AF2-T-ST-M-LTE-G

SuperTag - Medium

LL-AF2-T-ST-L-LTE-G

SuperTag - Large

 

Infrastructure Hardware

SKU

Gateways

LL-BST-8-915-SYM-G-I-US

Cellular/ethernet Gateway (indoor)

LL-BST-8-915-SYM-G-O-POE

Outdoor Cellular Gateway

LL-BST-8-915-SYM-E-O-POE

Outdoor Ethernet Gateway

   

SKU

Access Points

LL-AF2-915-SYM-I-AP

AirFinder Access Point with Symphony Link

LL-AF2-750-LTE-I-AP

AirFinder Access Point with Cellular/Ethernet

 

APPENDIX 3

HOSTED DATA OBLIGATIONS

  • Company shall take commercially reasonable steps, or cause such commercially reasonable steps to be taken, designed to prevent security breaches to the Services.
  • Company shall treat all Hosted Data as confidential and shall only use the Hosted Data to (i) provide the Services (including reporting to Customer on their use of the Services), (ii) use aggregated and/or anonymized information to improve its services, develop new services, show trends about general use of services, and for statistical analysis and business measures, (iii) monitor Customer’s use of the Services for security and technical support purposes and for validating Customer’s compliance and usage limitations, and for purposes of otherwise complying with Company’s obligations to Customer, (iv) enforce any applicable terms and conditions applicable to the Services, and (v) share with any Company subcontractors who need to know such information in order to provide the Services, provided that they are bound by similar confidentiality obligations. For purposes of this paragraph Hosted Data shall mean the data transmitted to, loaded into, or stored in the online Services hosted by Company.
  • Hosted Data under this Agreement shall include but not be limited to the following information:
  • Device serial number
  • Device manufacture date
  • Device install/initialization date
  • Battery life data – voltage, % remaining, calculated time remaining
  • Communication certificates
  • Customer “accounts” – While there is a concept of a customer account in this cloud it has nothing to do with Company ordering system, payment, or any identifiable information of a customer. It is simply a unique numeric representation of a customer account under which devices and data are associated. Purely logical.
  • Wireless communication statistics and data – signal strength, pack error rates, signal to noise ratio
  • Fault codes/conditions – motor jam, low battery, communication issues

 

Hosted Data shall NOT include any of the following types of information:

  • Credit card or payment information
  • Individual access control credentials
  • Biometrics

 

END USER LICENSE AGREEMENT

 

1          Applicability

1.1        These software end user license terms (the "Agreement") govern the use of accompanying software and firmware (and/or the software and firmware provided to you by Link Labs, Inc. in connection with Products that you have purchased directly from Link Labs or an authorized reseller), (collectively herein, the “Software”) unless it is subject to a separate agreement between you and Link Labs. By downloading, copying, or using the Software you agree to the terms set forth herein.

 

2          Incorporation of Terms

2.1        This Agreement may incorporate additional terms and conditions accompanying the Software or referenced by Link Labs at: https://www.link-labs.com/3rd-party-terms.  The Software may also be subject to additional license terms dictated by third party licensors and/or in connection with the incorporation of open source software into the Software.

 

3          Authorization

3.1        If you agree to this Agreement on behalf of another person or entity, you warrant you have authority to do so. 

 

4          Consumer Rights

4.1        If you obtained software as a consumer, nothing in this Agreement affects your statutory rights.

 

5          Electronic Delivery

5.1        Link Labs may elect to deliver Software and related Software product or license information by electronic transmission or download.

 

6          License Grant

6.1        For so long as you comply with the terms in this Agreement, Link Labs grants you a non-exclusive, non-transferable license to use the Software for your internal purposes only.

 

7           Restrictions on Usage

7.1        Your use of the Software is subject to the following restrictions:

            (a) You may not use the Software to provide services to third parties unless specifically authorized by Link Labs. 

            (b) You may not make copies and distribute, resell or sublicense the Software to third parties.

            (c) You may not download and use patches, enhancements, bug fixes, or similar updates unless you have a license to the underlying Software. However, such license doesn't automatically give you a right to receive such updates and Link Labs reserves the right to make such updates only available to customers with support contracts.

            (d) You may not copy the Software or make it available on a public or external distributed network.

            (e) You may not allow access to the Software on any internal network unless it is restricted to authorized users of the Software.

            (f) You may make one copy of the Software for archival purposes or when it is an essential step in authorized use.

            (g) You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of the Software.

 

8          Remote Monitoring

8.1        Some Software may require keys or other technical protection measures and Link Labs may monitor your compliance with the Agreement, remotely or otherwise.

 

9          Ownership

9.1        No transfer of ownership of any intellectual property will occur under this Agreement.  

 

10         Copyright Notices

10.1      You must reproduce copyright notices on the Software and documentation to the extent that you make any authorized copies.

 

11         Applicable Environments

11.1      The Software may only be used on Link Labs approved hardware and in connection with approved configurations of the same.

 

12         Limited Warranty for Software

12.1      The Software materially conforms to its specifications, if any, and is free of malware at the time of delivery; if you notify Link Labs (or your authorized reseller, as applicable) within ninety (90) days of delivery of non-conformance to this warranty, Link Labs will replace your copy. This Agreement states all remedies for warranty claims.  Link Labs does not warrant that the operation of Software will be uninterrupted or error free, or that Software will operate in hardware and software combinations other than as authorized by Link Labs. To the extent permitted by law, Link Labs disclaims all other warranties, express and implied.

 

13         Limitation of Liability

13.1      Link Labs’ liability to you under this Agreement is limited to the amount actually paid by you to Link Labs (or to its authorized reseller, as applicable) for the relevant Software. Neither you nor Link Labs will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party's liability for any liability that may not be excluded or limited by applicable law.    

 

14         Termination

14.1      This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, your rights under this Agreement terminate if you fail to comply with it.

 

15         General

15.1      Assignment. You may not assign this Agreement without prior written consent of Link Labs.  Unauthorized assignments will terminate the license to the Software provided hereunder. You may only transfer firmware if you transfer associated hardware.

15.2      U.S. Government. If the software is licensed to you for use in the performance of a U.S. Government prime contract or subcontract, you agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Link Labs' standard commercial license.

15.3      Export. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations.

15.4      Open Source.  To the extent the Software includes components subject to open source licenses, such licenses shall control over this Agreement with respect to the particular open source component. Current open source licenses included in Link Labs Software can be found at: https://www.link-labs.com/open-source-software.

15.5      Governing Law. This Agreement will be governed by the laws of the state of Maryland, excluding rules as to choice and conflict of law. You and Link Labs agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

15.6 Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

15.7 Entire Agreement. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties.

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