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SOFTWARE LICENSE AGREEMENT
FOR MANAGED WIRELESS INTERNET ACCESS
READ THESE TERMS CAREFULY BEFORE USING THE SERVICES DESCRIBED BELOW. IF YOU DO
NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE
THESE SERVICES. YOUR CLICKING ON THE BUTTON MARKED "I ACCEPT" AND YOUR
CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ
AND ACCEPTED THESE TERMS AND CONDITIONS.
This Software License Agreement for Managed Wireless Internet Access (this
"License Agreement") is entered into between you (the "Licensee") and NetNearU
Corp. ("NNU"), a corporation organized and existing under the laws of Delaware
and with a principal place of business at 2908 Finfeather Rd., Bryan, TX.
Execution of this License Agreement by Licensee and NNU and Licensee's use of
the services signifies Licensee's agreement to the terms and conditions of use
set forth in this License Agreement.
NNU has developed proprietary software ("Software") that facilitates and
manages third parties' ("End Users") access to the Internet. The Software
includes a software product marketed by NNU under the trademark TRACKOS™ which
is operated on an NNU-owned server.
In consideration of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
Business Terms
1.0 Revenue Sharing Fees. Licensee shall pay the following License Fees.
Licensee shall receive 75% of all fees charged to Licensee's End Users for
access to the Internet via the Software ("Traffic Charges"). NNU shall retain
25% of the Traffic Charges as its License Fee.
1.1 Integration and Development Fees. Fees may be charged to Licensee in
connection with the initial integration of Licensee devices or other
development work required in order to meet unique Licensee requirements at any
time during the term of the License Agreement. Any such fees will be quoted in
advance.
2.0 Card Processing Fees. In the event End Users access the Internet through
Licensee's Access Points on a pay-per-use or subscription basis, NNU may, at
its sole discretion, select a validation and credit card processing service to
verify and process End User credit card charges and debit card charges for
debit cards that contain the Visa or MasterCard logo. Licensee and NNU shall
split total card processing fees in the same proportion as revenue is split see
Section 1.0 "Revenue sharing fees" above).
Card processing fees shall be determined by multiplying total Traffic Charges
by 4.95%, and adding surcharges, if any, assessed by the credit card processing
service.
3.0 Interactive Media. The Licensee shall have the right to select the "accept
URL", if applicable, to which End Users are directed following a successful
logon. NNU may provide and display advertising and other data and information
on or through a device providing wireless access to a TCP/IP network ("Access
Point"). However, subject to Section 20.0, Licensee shall have the right to
exclude any advertising, data, information or display provided by NNU which is
found to be offensive, objectionable, undesirable or in violation of this
License Agreement. Any advertising, data, information or display provided by
NNU which Licensee has found to be offensive, objectionable, undesirable, or in
violation of this License Agreement shall be promptly removed by NNU upon
notice by Licensee to NNU. NNU and Licensee shall equally share any revenues
collected as a result of advertising.
4.0 Training. NNU will provide at no charge to Licensee training
documentation, published from time to time, regarding the installation and
operation of Access Points that will utilize the Software. NNU will also
retain on staff competent technical employees available to Licensee for
inquiries, as described below in Section 6.0, regarding the installation and
operation of Access Points.
5.0 End User Relations and Information. Licensee is responsible for all End
User relations and technical support other than those services provided by NNU
as described below in Section 6.0 - Service Repair and Technical Support
Center. When subscribing for access to the Internet through the Access Point,
every End User will be required to agree to and affirmatively accept the terms
and conditions of the NetNearU Wireless Internet Access Subscriber Agreement
("NWIAS"), available on NNU's website at https://wireless.nnu.com/terms.html.
Licensee is required to be named a party ("Provider") to the terms and
conditions of the NWIAS. NNU must remain a party to the terms and conditions
of the NWIAS in all instances. Any changes to the NWIAS that result in (i)
adding or deleting the terms "Licensor" or NetNearU, (ii) altering the meaning
of the term "Licensor", (iii) changing in any way the rights and protections
provided to "Licensor" or (iv) modifying the Privacy Policy, Indemnification,
Warranty and Limitation of Liability sections requires the advance written
authorization of NNU. Licensee acknowledges that it will have access to
personal and confidential information private to End Users, including credit
card information, passwords and the like. Licensee agrees to hold such
information in confidence and not to use such information in any manner not
authorized by the End User.
6.0 Service Repair and Technical Support Center. NNU agrees to provide
technical support to assist Licensee solely as described below. NNU is not
responsible for providing support to Out of Network Provider End Users
hereinafter defined in Section 8.0) or Boingo customers (hereinafter defined in
Section 9.0). Hours of operation for the help desk may be changed at NNU's
discretion upon notification to the Licensee. The following services are
provided at no additional charge to Licensee:
* Internet-based server access to TRACKOS™ and tools, allowing Licensee to
track activity 24 hours a day, 7 days a week, subject to reasonable downtime
for maintenance and unexpected events. User name and password will be offered
to Licensee to access detailed reporting available through TRACKOS™.
* Telephone technical support provided to Licensee for the Software.
* Software updates for TRACKOS™ and (if licensed) ADTRACKOS™.
* Telephone set-up assistance for NNU-supported public Internet devices,
excluding third-party peripheral hardware (i.e. routers, hubs, etc.) (the
"Equipment"), limited to the Software's interaction with the Equipment.
* Automated e-mail notification to Licensee of Equipment warnings and errors
related to the operation of the Access Points.
* Limited telephone assistance to Licensee for ISP, hardware and
software-related problems concerning the operation of the Software, provided 24
hours a day, 7 days a week.
The following Enhanced Licensee Technical Services are offered for a fee. If
Licensee selects Enhanced Licensee Technical Services, service will be provided
in the English language and fees shall be assessed.
* NNU will proactively attempt to diagnose and correct problems through remote
means.
* Corrective remote reboots in the event Equipment is off-line for Equipment
supporting a Remote Power Control device.
* Electronic notifications will be provided if on-site assistance is required.
* NNU will notify Licensee of Equipment that has any trouble reported by an End
User that may require an on-site visit.
* NNU will monitor Equipment to ensure it is on-line and operational.
* NNU's toll-free phone number will be permitted to be displayed through the
Software by Licensee at each U.S. and Canadian-based location containing an NNU
solution. The toll-free number is available to only those End Users placing
calls within the U.S. and Canada. Licensees will be responsible for providing
an alternative support number, at Licensee's sole expense, to enable End Users
located outside the U.S. or Canada to contact the NNU Help Desk. NNU Help Desk
assistance will be made available to End Users 24 hours a day, 7 days a week.
However, Help Desk hours of operation may be changed upon thirty (30) days
written notice to Licensee. End User assistance will be limited to the
following:
(a) Username and password inquiries
(b) Billing inquiries
(c) Refund requests
(d) Subscriber account cancellations
(e) Limited wireless card configuration support
* Processing of refund-related requests will be handled such that all credit
card credit related transactions are credited by NNU Help Desk. All refund
requests will first be validated by NNU staff through analysis of log detail
information prior to issuing refund.
If Licensee selects Enhanced Customer Technical Services, Licensee agrees to
the following modifications of the terms and conditions included above:
Section 1.0 Revenue Sharing Fees above is replaced in its entirety with the
following:
Licensee shall pay the following License Fees. Licensee shall receive 70% of
all fees charged to Licensee's End Users for access to the Internet via the
Software ("Traffic Charges"). NNU shall retain 30% of the Traffic Charges as
its License Fee.
Section 2.0 Card Processing Fees above is replaced in its entirety with the
following:
In the event End Users access the Internet through Licensee's Access Points on
a pay-per-use or subscription basis, NNU may, at its sole discretion, select a
validation and credit card processing service to verify and process End User
credit card charges and debit card charges for debit cards that contain the
Visa or MasterCard logo. NNU shall incur 100% of total card processing fees.
The second paragraph of the above section 6.0 Service Repair and Technical
Support Center is replaced in its entirety with the following:
The following Enhanced Licensee Technical Services are offered at no additional
fee. Service will be provided in the English language only.
In the event that Licensee submits written notice to terminate Enhanced
Customer Technical Services, each of the modifications enumerated immediately
above become void on the effective date of termination of Enhanced Customer
Technical Services.
7.0 User Rates. Rate plans are to be determined and maintained by Licensee
through TRACKOS™. End User rates shall at all times be fair and reasonable and
shall comply with all applicable laws and regulations.
7.1 Prepaid Codes. Licensee shall have the option to purchase for resale to
End Users numeric codes ("Prepaid Codes") that are generated by NNU via the
Software. Licensee may sell Prepaid Codes to End Users for cash at each Access
Point location as an alternative to End Users purchasing a rate plan using a
credit card. Each Prepaid Code shall have, as determined by the Licensee, an
expiration date and a monetary value equivalent to any of the rate plans
offered at each Access Point location. Licensee shall be charged for all
Prepaid Codes ordered at the time Prepaid Codes are generated by NNU. The cost
shall be equal to the face value of the Prepaid Code multiplied by NNU's
License Fee percentage stated in Section 1.0 of this License Agreement.
8.0 Roaming. If authorized by Licensee under the terms of this License
Agreement, End Users registering for Internet access service on an Access Point
operated by Licensee may use Internet access services on an Access Point other
than the one used by the End User to register for Internet access services
("Outbound Roaming"). A Licensee authorizing Outbound Roaming shall pay a
roaming fee to the operator of the Access Point where such roaming services are
provided if (i) the operator of such Access Point charges a fee for such
roaming services, and (ii) an End User who registered for Internet access
services on Licensee's Access Point utilizes such roaming services. The amount
paid by Licensee will be no greater than the maximum roaming fee per minute
assigned to each rate plan, as designated by the Licensee. The actual fee per
minute paid by Licensee may, however, be less than the maximum roaming fee per
minute if the roaming fee per minute charged by the operator of the Access
Point being utilized is lower than the Licensee's maximum roaming fee.
Also, if authorized by Licensee under the terms of this License Agreement,
authorized End Users may utilize Internet access services provided through
Licensee's Access Points even if the End User did not register for such service
at the Access Point that the End User desires to utilize the services ("Inbound
Roaming"). A Licensee authorizing Inbound Roaming shall earn roaming income if
(i) Licensee charges a fee for Inbound Roaming and (ii) an End User utilizes
such roaming services. Roaming income shall be payable to Licensee by the
operator of the Access Point where the End User registered for such services.
The amount earned by Licensee will be equal to the fee per minute assigned to
the Access Point, as designated by Licensee. If the Inbound Roaming fee per
minute charged by Licensee exceeds the Outbound Roaming fee per minute
authorized by the operator of the Access Point at which the End User originally
registered for service, then roaming access will be denied to the End User.
When the End User is obtaining Internet access services from a third party
other than from either an Access Point operator or Boingo, which is paying for
such End User access on a time-measured basis (e.g., per minute, per hour)
("Out of Network Provider"), then roaming income shall be payable to Licensee
by NNU through collections made by NNU from the Out of Network Provider.
NNU shall act as a clearinghouse to process all roaming transactions, collect
Inbound and Outbound Roaming fees from Access Point operators and Out of
Network Providers and remit such fees to Access Point operators in accordance
with the foregoing. Owners of Access Points on which roaming transactions
occur will be provided, by way of the Software, reporting that includes only
log detail (i.e. users IP address, user log in name, Mac address) and session
information (i.e. start time, duration, and type of termination) for all
roaming users.
9.0 Boingo. Boingo Wireless, Inc. ("Boingo") is a third-party service provider
that provides wireless Internet access to its customers usually for a fee, and
has contracted with NNU to obtain non-exclusive access to Access Points for
Boingo's customers in exchange for a fee. Licensee may, at any time, provide
customers of Boingo access to the Internet through the Access Points operated
by Licensee as contemplated hereunder and under the terms and conditions
included below. Licensee shall be paid a portion of the fees NNU receives from
Boingo as set forth in Section 9.2. NNU has the right to terminate Internet
access to any Out of Network Provider End User or Boingo customer without
notice to Licensee, including terminating all access to Licensee's Access
Points from any Out of Network Provider and/or Boingo.
9.1 Boingo Venue Consent. Licensee hereby consents and agrees to grant
non-exclusive access to the Licensee Network to customers of Boingo. Licensee
shall in no event guarantee that all customers of Boingo will be provided
access at any given time or upon demand.
9.2 Fee for Access. Boingo shall pay to NNU the current published fees (i) per
device, per location, per Member Connection Day (defined below), (ii) per
megabyte transferred through Licensee Access Points or (iii) per minute
connected to Licensee's Access Points occurring during the term of this License
Agreement ("Boingo Fees"). A "Member Connection Day" shall mean as to each
customer of Boingo, the 24-hour period beginning with a Log-in (defined below)
to the Licensee Network by that customer which does not occur during that
customer's prior Member Connection Day. A "Log-in" shall be a connection to
the Licensee Network made by a customer of Boingo which has a duration of more
than thirty seconds and transfers data to and from such member. A Log-in shall
not include (i) any pass-throughs granted by NNU upon sign-up of a new customer
of Boingo if that new member aborts the sign-up process, (ii) good-faith
administrative functions necessary to be performed by Boingo personnel and
(iii) those potential members who are denied membership.
9.3 End User Relations. In no event shall any customer of Boingo be considered
an "End User" for purposes of Licensee's obligations pursuant to Section 5.0 of
this License Agreement.
10.0 Card Collections. In the event End Users access the Internet through
Licensee's Access Points on a pay-per-use or subscription basis, NNU is solely
responsible for collecting the credit card charges from each End User.
Licensee shall not bill or collect credit card charges from End Users.
11.0 Monthly Reconciliation. At the end of each month (i.e., the Billing
Period), a reconciliation will be prepared to determine net amounts owed to
Licensee or from Licensee. The reconciliation procedure shall consider the
following elements and any others, if applicable to this License Agreement:
Traffic Charges and Boingo Fees will be determined in the aggregate for all
Access Points operated by Licensee. Such fees shall be allocated between
Licensee and NNU as set forth in Section 1.0 "Revenue Sharing Fees" of this
License Agreement.
Licensee and NNU shall share, in the same proportion as the revenue split in
Section 1.0, any (i) refunds or credits issued to End Users by Licensee, NNU or
any other entity and (ii) chargebacks.
Prepaid and Promotional Code charges will be determined in the aggregate for
all Access Points operated by Licensee.
Advertising revenues collected, if any, will be multiplied by 50% to determine
Licensee's share of advertising revenues.
Amounts owed to Licensee for Inbound Roaming, if any, and amounts owed by
Licensee for Outbound Roaming, if any, will be determined.
Credit card fees shall be allocated between Licensee and NNU as set forth in
Section 2.0 "Card Processing Fees".
Chargeback fees assessed by any credit card processor or bank in connection
with transactions of Licensee's end users shall be incurred by Licensee.
A minimum monthly fee of $25.00 will apply during the Term of this Agreement.
Net amounts owed by Licensee to NNU and other Access Point operators will be
invoiced by NNU as soon as practical after the end of each month. All invoices
issued to Licensee are payable in U.S. dollars and due upon receipt unless
Licensee has applied for and been extended credit terms. Any net amounts of
$200 or more that are owed to Licensee by NNU and other Access Point operators
will be paid by NNU or NNU's authorized payment agent via check mailed first
class using the U.S. Postal Service within 30 days following the end of the
Billing Period. Costs associated with any other payment methods shall be
incurred by Licensee. Any net amounts aggregating less than $200 that are owed
to Licensee will be paid upon termination of this License Agreement. Any
amounts owed by Licensee to NNU for any reason (including past due payments)
may, at NNU's sole discretion, be deducted from any amounts owed by NNU to
Licensee or charged to Licensee's credit card.
12.0 Transactions in U.S. Dollars. All revenues shall be accounted for in U.S.
dollars. Foreign currencies shall be converted into U.S. dollars based upon
the exchange rates used by NNU's credit card merchant services provider.
13.0 Internet Access. Licensee is responsible for acquiring, installing and
maintaining high speed (DSL, DSL-equivalent or higher speed) Internet access to
all Access Points hereunder at all times through the Internet Service Provider
("ISP") and telephone company of its choice. Licensee shall use commercially
reasonable efforts to maintain the Licensee Network in good working order.
Licensee shall use commercially reasonable efforts to ensure that upon
notification of a problem by NNU, Licensee will dispatch the appropriate
service personnel to restore the network to working order. NNU is not
responsible for any acts or omissions of or goods or services provided by the
ISP, telephone company or any other third-party service provider.
14.0 Promotion. Subject to Section 20.0, Licensee shall actively promote
wireless Internet access services by providing appropriate signage and
marketing materials at each Access Point location. Licensee shall permit NNU,
Out-Of-Network Providers and Boingo to promote Licensee's Access Point
locations in mediums including, but not limited to, Internet web sites and
interactive media.
14.1 Promotional Codes. Licensee shall have the option to purchase
alphanumeric codes generated by NNU via the Software for use in promoting
wireless Internet access at each Access Point location ("Promotional Codes").
Licensee shall be charged $0.50 per hour for all actual usage occurring through
Promotional Codes used by End Users at their Access Point locations.
General Terms and Conditions
15.0 Grant of License. NNU hereby grants to Licensee, and Licensee hereby
accepts, a nonexclusive license ("License") to use the Software to provide
Internet access to End Users. NNU may, from time to time, at its sole option,
download updates and enhancements of the Software to the Access Points.
16.0 License Restrictions. Licensee shall have no right to sublicense the
License, to use the Software for any purpose not expressly permitted by this
License Agreement, or to the source code for the Software. No transfer of
title to the Software is affected by this License. NNU shall retain sole and
exclusive title to the Software and all modifications, derivative works, and
intellectual property rights associated therewith. Except as specifically set
forth herein, the License granted herein shall not be construed as a right or
license to any other proprietary information, trademarks, trade secrets, or
patents owned or licensed by NNU. The License shall cease and terminate
immediately upon termination of this License Agreement for any reason.
Licensee shall not copy, modify, install, distribute, reverse engineer,
disassemble, reverse compile, or otherwise make any translation, adaptation,
arrangement or any other alteration of the Software (electronically or
otherwise) for any reason whatsoever.
17.0 Term of License and License Agreement. Your right to use the Software
under the terms in the License granted in this Section 17.0 shall be for five
(5) years ("Initial Term"), unless otherwise terminated as provided herein.
Thereafter, this License Agreement shall automatically renew for additional
one-year periods ("Renewal Term") unless written notice is given to the other
party at least thirty (30) days prior to the renewal date. The Initial Term
and any Renewal Terms constitute the Term. NNU may terminate this License
Agreement upon written notice if Licensee does not order a service provided for
under the terms of this License Agreement within ninety (90) days of the
Effective Date of this License Agreement.
18.0 Governmental Approval or Taxation. Licensee shall, at its own expense,
promptly obtain any governmental permits, registrations, licenses, assessments,
approvals or authorizations required to enable Licensee to utilize the Software
and for this License Agreement to become effective and operative. Licensee
shall bear the costs of all taxes, fines, penalties and other payments imposed
by any governmental authority as a result of the existence or operation of this
License Agreement or use of the Software. Licensee shall be solely responsible
for all state, local or federal taxes, however designated, levied or based on
any charges hereunder or on this Agreement or any products procured for
Licensee hereunder, including but not limited to state and local privilege and
excise taxes based on gross revenue, and any sales taxes or amounts in lieu
thereof, paid or payable by NNU in respect of the foregoing. Licensee shall pay
any such taxes to NNU or to any governmental agency, as directed by NNU.
Licensee hereby indemnifies and holds NNU harmless from and against the payment
of any and all sales or similar taxes, including any penalties or interest
thereon. NNU will inform Licensee of any audit by any governmental authority
regarding such taxes, will allow Licensee to control any challenge to,
settlement of or payment of any amounts deemed payable by such government
authority as a result of such audit or inquiry, and will cooperate with all
reasonable requests by Licensee for NNU to assist in challenging, settling and
paying such amounts. Licensee's obligations pursuant to this Section 18.0 shall
survive any termination or expiration of this Agreement.
19.0 Confidential Information. "Confidential Information" shall mean all
knowledge and information disclosed, directly or indirectly, by either party
pursuant to this License Agreement. Confidential Information includes the
Software. All Confidential Information is acknowledged confidential and
proprietary to the originating party. Both parties shall take all reasonable
steps to safeguard the secrecy and confidentiality of such information, and
shall not disclose any of such information to any person or party whatsoever,
other than to responsible employees of the party to whom it is essential to
disclose such information solely for a purpose contemplated by this License
Agreement, and in such cases only under written conditions of strict
confidentiality. Except as provided in this License Agreement, from and after
the date hereof, neither Licensee, NNU, their agents, representatives, nor
employees, shall disclose or use any Confidential Information, nor shall
Licensee, NNU, their agents, representatives, nor employees make, use, offer
for sale, or sell any products or services containing, or derived from such
Confidential Information. Licensee and NNU shall be responsible and liable for
any breach of this License Agreement by their agents, representatives, or
employees. The terms and contents of this License Agreement are confidential.
These obligations do not apply to Confidential Information which, as shown by
reasonably documented proof, was either in the other's possession prior to
receipt thereof from the disclosure or was received by one party in good faith
from a third party not subject to a confidential obligation to the other party;
or, now is or later becomes publicly known through no breach of confidential
obligation by the receiving party; or, was developed by the receiving party
without the developing person(s) having access to any of the Confidential
Information received from the other party.
20.0 Trademarks. All signage, marketing materials, and the logon home page
shall include the "Powered by NetNearU" trademark (the "Trademark") displayed
in a manner acceptable to NNU. Licensee shall submit such signage and
marketing materials for pre-approval by NNU before display or publication. The
Trademark, and all other NNU marks and tradenames, and the goodwill associated
therewith, are the exclusive property of NNU, and nothing in this License
Agreement grants Licensee or any other person any right, title or interest
therein, except for the rights expressly granted in this Section 20.0. All
uses of the Trademark by Licensee shall inure solely to the benefit of NNU.
21.0 Indemnification of NNU. Except as otherwise provided herein, Licensee,
for itself and its successors and assigns, shall defend, indemnify and hold NNU
and its corporate affiliates and their respective officers, directors,
stockholders, employees, agents, successors and assigns harmless from and
against, and shall promptly reimburse them for, any and all losses, claims,
damages, settlements, costs, and liabilities of any nature whatsoever
(including reasonable attorneys' fees) to which any of them may become subject
arising out of, based upon, as a result of, or in any way connected with, the
operations of or performance by Licensee under this License Agreement or any
breach by Licensee of this License Agreement.
22.0 Indemnification of Licensee. Except as otherwise provided herein, NNU for
itself and its successors and assigns, shall defend, indemnify and hold
Licensee and its corporate affiliates and their respective officers, directors,
stockholders, employees, agents, successors and assigns harmless from and
against, and shall promptly reimburse them for, any and all losses, claims,
damages, settlements, costs, and liabilities of any nature whatsoever
(including reasonable attorneys' fees) to which any of them may become subject
arising out of, based upon, as a result of, or in any way connected with, any
infringement claim relating to the Software (not including any modifications
made by NNU at the request of the Licensee), other than claims based upon the
use of the Software in combination with other software, hardware or systems not
provided by NNU. NNU shall be relieved of the foregoing obligation unless
Licensee promptly notifies NNU of any such claim and, at NNU's option, permits
NNU to control the defense and settlement thereof. In the event of such
infringement, NNU may either use commercially reasonable efforts to obtain a
license under the rights that are infringed, or modify the Software to be
non-infringing; provided that if in NNU's judgment such remedies are not
reasonably available, NNU may terminate this License Agreement.
23.0 Warranty. NNU warrants that the Software licensed will conform, as to all
substantial operational features, to NNU's currently published specifications
when installed and will be free of defects which substantially affect Software
performance. If NNU determines the Software to be defective, NNU's sole
obligation under this warranty is to remedy the defect in a manner consistent
with NNU's regular business practices.
24.0 Limitation of Warranty. THE WARRANTY PROVIDED IS A LIMITED WARRANTY AND
IT IS THE ONLY WARRANTY MADE BY NNU. NNU MAKES AND LICENSEE RECEIVES NO
WARRANTY EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. NNU SHALL HAVE NO LIABILITY
WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT FOR CONSEQUENTIAL,
EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL
LIABILITIES OR OBLIGATIONS OF NNU FOR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE DELIVERY, USE, OR PERFORMANCE OF ANY OF THE SOFTWARE.
25.0 Modifications to Software. If any modifications are made to the Software
by Licensee, this warranty shall immediately be void. Correction of
difficulties or defects traceable to Licensee's errors or Software change shall
be billed to Licensee at NNU's standard time and material rates.
26.0 Limitation of Liability. NNU'S LIABILITY TO LICENSEE UNDER THIS LICENSE
AGREEMENT, AND LICENSEE'S EXCLUSIVE REMEDY FOR ANY LOSS, DAMAGE OR INJURY,
REGARDLESS OF THE NATURE THEREOF AND SPECIFICALLY INCLUDING INDEMNITY, BREACH
OF CONTRACT, NEGLIGENCE, TORT, AND WARRANTY CLAIMS SHALL NOT EXCEED, AND SHALL
BE LIMITED TO, THE LICENSE FEES PAID BY LICENSEE TO NNU IN THE 12 MONTHS PRIOR
TO OCCURRENCE OF SUCH CLAIM OR FIVE HUNDRED DOLLARS PER ACCESS POINT MANAGED
THROUGH TRACKOS™, WHICHEVER IS LESS.
27.0 Default. Either party shall be in default under this License Agreement
upon the occurrence of any of the following events:
(i) Either party breaches any of its obligations under this License Agreement,
is advised in writing of such breach by the other party, and such breach
continues for thirty (30) days;
(ii) Either party breaches any representation or warranty made to the other
party herein;
(iii) Either party makes a general assignment for the benefit of creditors,
suspends all or substantially all of its business operations, or commits any
act amounting to business failure; or,
(iv) Bankruptcy, reorganization, liquidation, receivership, or other similar
proceedings are instituted by or against either party and not fully discharged
within thirty (30) days.
28.0 Rights Upon Default. Upon the occurrence of a default, this License
Agreement may be terminated immediately at the sole discretion of the non
defaulting party upon notice to the defaulting party. Should Licensee be the
defaulting party, (i) Licensee shall pay to NNU a fee of $50 for each access
point managed through TRACKOS™ licensed under this License Agreement multiplied
by 12 months or the number of full months remaining in the Term of this License
Agreement, whichever is less, such payment due upon receipt of invoice from
NNU, and (ii) NNU shall have the right to modify or disable the Software
licensed hereunder, including the Software's configuration settings and its
ability to accept certain types of payments or inputs from Licensee. Should
NNU so modify any Software licensed hereunder, such modification shall not
constitute a waiver of NNU's rights hereunder, and NNU shall retain the right
to subsequently terminate this License Agreement at any time by reason of the
default.
29.0 No Liability. The exercise of a party's right of termination shall not
impose any liability upon the terminating party by reason of such termination,
nor have the effect of waiving any damages to which the terminating party might
otherwise be entitled.
30.0 Collection of Money Due. Termination of this License Agreement shall in
no manner interfere with, affect or prevent the collection by NNU or Licensee
of any and all sums of money owed prior to such termination. Subject to the
conditions stated in this Section 30.0, upon termination of this License
Agreement for any reason, all amounts owed but not yet due shall become
immediately due and payable. Subsequent to the date of termination and in
accordance with the provisions of Section 11.0, Licensee shall continue to be
responsible for (i) credits issued by NNU to Licensee's end users, (ii)
chargebacks initiated by Licensee's end users and, (iii) chargeback fees
assessed by any credit card processor or bank in connection with transactions
of Licensee's end users occurring prior to the termination date. If: (i) there
is a material, adverse change in Licensee's financial condition; (ii) Licensee
is in default of this License Agreement; (iii) Licensee is experiencing
excessive chargebacks, (iv) Licensee significantly alters the nature of their
business or product lines, (v) NNU has reasonable grounds to believe that it
may be or become liable to third parties for amounts previously paid by NNU to
Licensee, or (vii) NNU has reasonable grounds to believe that it may be subject
to additional liabilities, including any fines, fees, or penalties assessed
against NNU either directly or indirectly by Visa, MasterCard, American
Express, Discover or other card services arising out of or relating to
Licensee's card transactions, chargebacks, or Licensee's failure to comply with
this License Agreement, NNU may temporarily suspend payments to Licensee during
NNU's investigation of the issue and/or designate an amount of funds that must
be retained in order to protect NNU against the risk of existing or anticipated
credits, chargebacks, chargeback fees and to satisfy Licensee's other
obligations under this License Agreement (such funds being hereinafter referred
to as the "Reserve Account"). The Reserve Account will not bear interest and
Licensee will have no right or interest in the funds in the Reserve Account;
provided that upon satisfaction of all of Licensee's obligations under this
License Agreement, NNU will pay to Licensee any funds then remaining in the
Reserve Account. Any funds in the Reserve Account may be commingled with other
funds and need not be maintained in a separate account.
31.0 Return of Software and Confidential Information. Licensee shall deliver
all copies, summaries, abstracts or modified versions of the Software and
Confidential Information in the Licensee's possession or under its control to
NNU within 15 days after the termination of this License Agreement.
32.0 Termination: Breach of Other Agreements. NNU or Licensee shall have the
right to terminate this License Agreement immediately upon the breach or
termination of any other agreement or license between NNU and Licensee.
33.0 Warranties. Each party represents and warrants that it is a duly
registered and validly existing company in good standing under the laws of its
country and state of residence. Each party has the right, power and authority
to enter into this License Agreement and to meet the obligations herein imposed
on it, and neither the execution of this License Agreement nor its consummation
will result in the breach of any term or provision of, or constitute a default
under, any charter provision or bylaw, or material agreement, to which it is a
party or which is otherwise applicable to it.
34.0 Binding Effect of this License Agreement. This License Agreement,
together with all attachments hereto, constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all
previous and contemporaneous representations, understandings or agreements,
whether oral or written, relating to the subject matter hereof. This License
Agreement may not be modified, amended, altered, or supplemented except by
written agreement.
35.0 Assignment. Each party may assign its rights and delegate its obligations
under this License Agreement, provided that Licensee shall not sell, assign,
transfer or delegate its rights or obligations hereunder (whether voluntarily,
involuntarily, or by operation of law) without the prior written consent of
NNU, which consent shall not be unreasonably withheld. Furthermore, Licensee
shall not sell, assign, or transfer the Software without the written consent of
NNU. NNU shall not unreasonably withhold its consent for Licensee to so sell,
assign, or transfer, provided that:
(i) such sale, assignment, or transfer shall not in any way affect Licensee's
obligations which were due and owing hereunder prior to such sale, assignment,
or transfer; and
(ii) the purchaser, assignee, or transferee of the Software agrees in writing
to either (a) be bound by the terms of this License Agreement, (b) enter into a
separate NNU license agreement governing their utilization of the Software, or
(c) not utilize the Software, and
(iii) the purchaser, assignee, or transferee of the Software is not deemed by
NNU to be a competitor to NNU.
36.0 Applicable Law, Forum and Injunctive Relief. This License Agreement shall
be governed by, construed under and enforced under the laws of the United
States and the State of Texas as applicable without giving effect to the
principles of conflicts of law thereof. All disputes relating to this License
Agreement or the Software shall be brought in the District Courts of Travis
County, Texas or the United States District Court for the Western District of
Texas, Austin Division, as applicable. Licensee submits to the jurisdiction of
any court as recited in this Section 36.0, and agrees not to challenge the
jurisdiction of such court over Licensee. IT IS AGREED THAT BREACH OF THIS
LICENSE AGREEMENT BY LICENSEE MAKING ANY UNAUTHORIZED USE OF THE SOFTWARE,
BREACHING THE CONFIDENTIAL INFORMATION PROVISION, OR ENGAGING IN ANY OTHER
CONDUCT THAT COULD IMPAIR NNU'S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE
WILL CAUSE IMMEDIATE AND IRREPARABLE HARM TO NNU. NNU SHALL BE ENTITLED TO
PURSUE IMMEDIATE AND INTERIM INJUNCTIVE RELIEF TO RESTRAIN SUCH UNAUTHORIZED
USE OR CONDUCT, AND OBTAIN SUCH OTHER INJUNCTIVE RELIEF AS MAY BE NECESSARY TO
PROTECT NNU'S COPYRIGHTS AND INTELLECTUAL PROPERTY RIGHTS.
37.0 Section Headings. The headings contained in this License Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this License Agreement.
38.0 Counterparts. This License Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all of which
together will constitute one instrument. Facsimile copies of this License
Agreement are given the dignity of original documents. If a counterpart in a
local language, other than English, is executed, the English language version
controls.
39.0 Severability. If any provision of this License Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, the legality, validity, and enforceability of the remaining
provisions of this License Agreement shall not be affected thereby, and in lieu
of such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this License Agreement a provision as similar in
terms to such illegal, invalid, or unenforceable provision as may be legal,
valid and enforceable.
40.0 Notices. Any notices required or permitted to be given under this License
Agreement shall be deemed sufficiently given if hand delivered with receipt
acknowledged, mailed by certified or registered mail postage prepaid, return
receipt requested, sent by any expedited delivery service that provides proof
of service, or transmitted by facsimile (such facsimile accompanied by a
transmission report and followed by the delivery of a hard copy of such notice)
to the addresses shown in the signature block of this License Agreement. Such
addresses may be changed by written notice to the other party.
41.0 Attorneys' Fees. The prevailing party in any legal proceeding based upon
this License Agreement shall be entitled to reasonable attorneys' fees and
court costs in addition to any other recoveries allowed by law.
42.0 No Agency. Neither party is an agent, partner, joint venturer, or legal
representative of the other party and has no authority to act for or incur any
obligations on behalf of or in the name of the other party.
43.0 Remedies. All rights and remedies under this License Agreement are
cumulative, not exclusive, and shall be in addition to all rights and remedies
available to either party at law or in equity.
44.0 Excused Performance. The parties shall be excused from performance, and
shall have no liability, for any period and to the extent that they are
prevented, hindered or delayed from performing any obligations under this
License Agreement, in whole or in part, as a result of acts, omissions or
events beyond the reasonable control of that party.
45.0 No Waiver. No failure of either party to exercise any power of right
given either party hereunder or to insist upon strict compliance by either
party with its obligations hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of either party's
right to demand exact compliance with the terms hereof.
46.0 Advertising and Publicity. NNU and Licensee shall communicate and
cooperate with respect to advertising and publicity regarding this Agreement
and their relationship. Except as provided for in this Agreement, NNU and
Licensee shall each obtain the written consent of the other before publishing
or releasing any such advertising or publicity.
47.0 Export and Import Licenses. In all instances where Licensee is
responsible for shipments of NNU Products outside of the United States,
Licensee will obtain, at its own expense, any export and/or import license,
permit or other authorization necessary for the exportation of each copy of the
Software from the United States and importation of each copy of the Software
into the country of destination. If requested, evidence of such license,
permit or other authorization shall be provided to NNU before shipment of the
affected Software to Licensee.
48.0 Survival. The respective obligations of the parties which by their nature
would continue beyond the termination or expiration of this License Agreement,
shall survive the termination or expiration of this Agreement. Such
obligations include, by way of illustration only and not limitation, those
contained in the LICENSE RESTRICTIONS, GOVERNMENTAL APPROVAL OR TAXATION,
CONFIDENTIAL INFORMATION, INDEMNIFICATION OF NNU, LIMITATION OF LIABILITY,
APPLICABLE LAW, FORUM AND INJUNCTIVE RELIEF clauses.
IMPORTANT!!! If Licensee is non-U.S. (foreign) based or if Licensee plans to
export Access Points and/or Software outside the United States, the following
additional Sections 49.0 through 53.0 shall apply:
49.0 Translation of Terms and Conditions. Before activating any Access Points,
Licensee shall determine if the terms and conditions in the NWIAS need to be
translated from the English language version provided by NNU into a different
language in order to ensure that the translated terms and conditions are
legally enforceable in the country of the location of the Access Point. If it
is determined by either NNU or Licensee that a translation of the NWIAS is
required, then Licensee shall immediately have such a translation performed, at
Licensee's sole expense. Licensee shall (1) ensure, to NNU's satisfaction,
that the translated terms and conditions provide substantially equivalent legal
rights and obligations as stated in the English language version provided by
NNU and (2) indemnify, hold harmless and defend NNU from and against any
action, claim, demand, dispute, or liability, including reasonable attorney's
fees and costs, arising from or relating to a term or condition in a NWIAS
translated by Licensee with a legal right and/or obligation not substantially
equivalent to the legal right and/or condition stated in the English language
version provided by NNU or arising from or relating to a term or condition in
the NWIAS translated by Licensee that is unenforceable in the country of the
location of the Access Point. NNU shall have the right at any time to perform
their own translation of the NWIAS from the English language version into a
different language in order to ensure that the translated terms and conditions
are legally enforceable in the country of the location of the Access Point.
NNU's translation of the NWIAS shall supersede Licensee's translation and be
displayed on the logon page of the Access Point for the End Users to accept.
NNU shall be responsible for posting and maintaining the translated NWIAS on
the NNU wireless website.
50.0 Communications. All communications and notices to be made or given
pursuant to this License Agreement, and all documentation, products, and
services to be hereunder, unless otherwise provided herein or by other written
agreement, shall be in the English language.
51.0 Convention on Contracts for the International Sale of Goods. The parties
expressly agree that the United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this License Agreement.
52.0 Applicable Law Outside the U.S. Pursuant to Section 36.0, this License
Agreement may be governed by local law if Access Point(s) or Software resides
outside the U.S.
53.0 Payments to NNU. All invoices issued to Licensee are due upon receipt,
unless Licensee has applied for and been extended credit terms, in U.S.
dollars, and are to be wire transferred at the expense of Licensee to the
following account: Compass Bank, 2405 Texas Avenue South, College Station,
Texas, USA 77840, (979) 764-1341. ABA No.: 113010547, Account No.: 00034649,
Account Name: NetNearU Corp. Federal ID#: 74-2816278.
IF LICENSEE CONDUCTS BUSINESS WITH NNU THROUGH AN ENTITY THAT HAS EXECUTED AN
NNU DISTRIBUTOR AGREEMENT, THE FOLLOWING SECTION 54.0 SHALL APPLY:
54.0 Distributor Rights. Certain entities or individuals have executed
agreements with NNU that enable them to resell the NNU solution
("Distributors"). Licensee's Distributor reserves the right to observe limited
activity related to the operations of Licensee in the Software. Distributor
shall have no edit rights and will retain all information proprietary to
Licensee and their respective activities in the strictest confidence.
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