Effective as of December 13, 2018
THESE TERMS OF SERVICE (“TERMS”), TOGETHER WITH THE EXECUTED SERVICE ORDER FORMS THAT REFERENCE THESE TERMS, CONSTITUTE A CONTRACT (THE “AGREEMENT”) BETWEEN THE LEGAL ENTITY THAT EXECUTED THE SERVICE ORDER FORMS (“CUSTOMER”) AND IPASS INC., A DELAWARE CORPORATION. BY EXECUTING A SERVICE ORDER FORM, CUSTOMER AGREES TO BE BOUND BY THESE TERMS. THE AGREEMENT GOVERNS THE USE OF, AND ACCESS TO, THE SERVICE, THE CLIENT SOFTWARE AND SITE BY CUSTOMER AND ITS USERS. ALL SERVICE ORDER FORMS EXECUTED HEREUNDER WILL BE INCORPORATED BY REFERENCE HEREIN AND SHALL FORM A PART OF THIS AGREEMENT BETWEEN THE PARTIES.
“Additional Services” means any additional services elected by Customer under an executed Service Order Form including but not limited to professional services engagement for customized reporting, API integration assistance and onsite training.
“Affiliate” means, with respect to a party, any entity which is controlled by, controls or is under common control with Customer. For the purposes of this definition, control shall mean ownership of at least fifty percent (50%) of the outstanding voting equity interest.
“Client Software” means the client software (or app) provided by iPass (either by download or access through the internet) that allows a User to use any functionality in connection with the Service.
“Documentation” means any written or electronic documentation specifying the functionalities of the Service provided or made available by iPass to Customer or Users through the Service, Site or otherwise.
“Fees” means all fees, including Subscription Fees, set forth in the Agreement.
“iPass Hosted Authentication Service” means a hosted, managed authentication service available within the iPass Portal and hosted by iPass.
“Service” means iPass’ Enterprise Mobility Service and associated Client Software, the iPass Hosted Authentication Service, the fully automated software deployment, account activation and support process, and access to the iPass Portal for retrieval of Customer’s invoices, managing Users, review reporting, and open support tickets. Any new or modified features added to or augmenting or otherwise modifying the Service, Client Software or other updates, modifications or enhancements to the Service or Client Software (“Updates”) are also subject to these Terms, and iPass reserves the right to deploy Updates at any time.
“Service Order Form” means the ordering document representing the initial purchase of the Service, as well as any subsequent purchases agreed to between the parties (including Customer’s Affiliates) following the initial purchase, that are executed hereunder which set forth Customer’s and Affiliates’ elected Subscription Plan, Subscription Term and the applicable Subscription Fees and other charges. By entering into a Service Order Form hereunder, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party hereto.
“Site” means www.ipass.com.
“Subscription Fees” mean the fees for Users which Customer has agreed to subscribe to for the duration of the Subscription Term as set forth in Customer’s Service Order Form.
“Subscription Plan” means the pricing plan elected by Customer in the Service Order Form.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Service and includes all Renewal Subscription Terms.
“Third Party Services” means third party services, software, networks, websites, databases and information which are incorporated in the Service or which Customer may connect to through the use of the Service.
A “User,” when on the iPass Hosted platform, is defined as any person who has a unique subscriber ID that is listed in the iPass Hosted Authentication Database.
A “User,” when on a Roam Server with Automatic Credential Assignment (ACA) platform, is defined as any person who creates a Call Data Record (CDR) or has a unique subscriber credential that is listed in the Roam Server User Database.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE
2.1 General Terms. During the Subscription Term and subject to compliance by Customer and Users with these Terms, Customer has the limited right to access and use the Service, consistent with Customer’s elected Subscription Plan, for Customer’s internal business purposes. Customer is responsible for all actions by its Users and a breach by such Users will be deemed a breach of the Agreement by Customer. Customer’s right to use the Service is also subject to restrictions and policies implemented by iPass, which iPass may change from time to time in its sole discretion. Customer’s continued use of the Service constitutes Customer’s agreement to comply with these additional restrictions and policies. iPass’ failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
2.2 Provision of Service. iPass shall make the Service available to Customer pursuant to the terms and conditions set forth herein and any Service Order Forms executed hereunder.
2.3 Additional Users. Customer may add additional Users above the number of Users subscribed to under Customer’s elected Subscription Plan. The Subscription Term for the additional Users shall be co-terminus with Customer’s elected Subscription Term. Fees for additional Users are set forth in Section 6.1.
2.4 Use Guidelines. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and to notify iPass promptly of any unauthorized use; and (ii) comply with all applicable local, state, federal and foreign laws in using the Service, and if using the Service outside of the United States, not use the Service in any manner that would violate any federal or state laws of the United States if conducted therein. In addition to complying with the other terms, conditions and restrictions set forth herein, Customer shall comply with iPass’ Acceptable Use Policy, the then-current version of which is available http://www.ipass.com/wp-content/uploads/2010/01/Acceptable-Use-Policy.pdf and is incorporated by reference herein.
2.5 Operational Requirement. The use of the iPass Hosted Authentication Service is required in order to use the Service. For clarity, there are no additional Fees or charges that are applied for the use of the iPass Hosted Authentication Service.
3. DATA PRIVACY AND SECURITY
3.1 User Data. Customer agrees that iPass and the service providers it utilizes to assist in providing the Service to Customer shall have the right to access Customer’s and Users’ accounts and to use, modify, reproduce, distribute, display and disclose Customer data solely to the extent necessary to provide the Service, including, without limitation, in response to Customer support requests. Any third party providers of services (“Third Party Providers”) iPass utilizes will only be given access to Customer account information and data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations. iPass may also access or disclose information about Customer, Customer’s account, or Users in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect iPass, its customers’ or partners’ rights or property, including enforcement of the Agreement or other policies associated with the Service; and (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
4. TECHNICAL SUPPORT
For Customer, iPass provides customer and technical support via email for the Service. iPass will use reasonable efforts to troubleshoot and resolve issues reported by Customer but iPass does not make any representations or guarantees that iPass will be able to resolve any such issues. Except as provided in this section, iPass has no obligation to provide additional customer support, technical support, or to provide solutions (e.g., bug fixes to the Client Software) to any issues that may arise in Customer’s particular use of the Service.
For Users, invite emails will be sent with the Users’ credentials (username and password) along with instructions to download and use the Service. Any further assistance will be provided to the Users: (i) via the email@example.com email alias; (ii) by sending logs from the Client Software, or (iii) by visiting support.ipass.com.
5. THIRD PARTY PROVIDERS. iPass is not responsible or liable for, and makes no representations with respect to any aspect of services or products provided by Third Party Providers (“Third Party Services”), including, without limitation, the quality or performance of such Third Party Services, the content or the manner in which the Third Party Providers handle Customer data. Customer and Users irrevocably waive any and all claims against iPass with respect to such Third Party Services. iPass is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer enablement, access or use of any such Third Party Services, or Customer reliance on the privacy practices, data security processes or other policies of such Third Party Providers.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 User Fees. Customer shall pay all Fees specified in all executed Service Order Forms hereunder. Fees are based on Customer’s elected Subscription Plan. If in any month, Customer has more Users than the number of Users included in Customer’s elected Subscription Plan, Customer will be invoiced Fees for the additional Users above Customer’s elected Subscription Plan. Fees for additional Users above the number of Users included in Customer’s elected Subscription Plan will be applied monthly and are based upon the price per additional User for Customer’s elected Subscription Plan as set forth in the Service Order Form. Fees for additional Users are not subject to the Subscription Term and Payment Term discounts set forth in the applicable Service Order Form. Customer’s elected Subscription Plan shall be the minimum billing applied for the duration of the initial Subscription Term and each subsequent Subscription Term.
6.2 Invoicing and Payment. All payments hereunder will be in US Dollars and are due and payable within thirty (30)
days after the date of invoice. Fees for the Service will be invoiced in accordance with Customer’s elected Payment Term option in the applicable Service Order Form. Customer is responsible for providing complete and accurate billing and contact information to iPass and notifying iPass of any changes to such information. If Customer has elected monthly billing, iPass will invoice Customer each month by posting an invoice on the iPass Portal. Certain Fees are billed one month in arrears. iPass may terminate or modify the terms of credit payments, when, in its discretion, iPass reasonably believes that its payments may be at risk. All rights of Customer are expressly made conditional upon timely payment, without the right of set off, of all amounts due by Customer under the Agreement. Without limiting iPass’ other available rights and remedies, iPass reserves the right to suspend or to terminate any Services ten (10) days after sending written notice of a payment that is thirty (30) or more days past due. iPass may include on an invoice, and Customer agrees to pay for (i) any Services used by Customer within one hundred eighty (180) days before the date of the invoice and (ii) any corrections to amounts invoiced, within one hundred eighty (180) days after the date of the original invoice.
6.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at iPass’ discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer fails to pay Customer’s Subscription Fees or charges for other services indicated on any Service Order Form within five (5) business days of iPass’ notice to Customer that payment is due or delinquent, or if Customer does not update payment information upon iPass’ request, in addition to iPass’ other remedies set forth above, iPass may suspend or terminate access to and use of the Service by Customer and Users.
6.4 Subscriptions, Subscription Upgrades and Additional Services. All Services are purchased as subscriptions with Subscription Terms elected by Customer in the applicable Service Order Forms. Customer’s elected Subscription Plan cannot be decreased during the relevant Subscription Term stated on the Service Order Form. If Customer elects to upgrade Customer’s elected Subscription Plan for an increased number of Users during Customer’s Subscription Term (a “Subscription Upgrade”), Customer must submit a new Service Order Form and Customer’s original Subscription Term will be re-set for a new Subscription Term which is the same length or greater than Customer’s original Subscription Term. In addition, if Customer elects to add Additional Services (such as Gogo Inflight Services after Customer’s initial purchase), Customer will be required to submit a new Service Order Form.
6.5 Disputed Amounts. If Customer reasonably disputes an invoiced amount, Customer may: (a) withhold such amount from Customer’s payment, provided that Customer gives iPass written notice of the dispute and the reason for such dispute within thirty (30) days after the date of invoice, and pays all invoiced amounts not subject to such dispute by the due date. The parties will cause authorized representatives to meet within fifteen (15) days after Customer’s notice of dispute to negotiate in good faith to resolve the dispute. If such representatives have not resolved the dispute within fifteen (15) days after their first meeting, the parties will either decide mutually to continue negotiations or, if either party does not desire to continue negotiations, each party may exercise its available remedies with respect to the disputed amounts.
6.6 Taxes. Unless otherwise stated, Subscription Fees and other charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer will pay all applicable transaction based taxes including but not limited to sales, use, gross receipts, excise, value-added, duties and other surcharges related to purchase of the iPass Service and goods. As between iPass and Customer, Customer will be responsible for self-assessing and remitting all transaction based taxes unless otherwise invoiced by iPass. If Customer is required by law in Customer’s respective country to withhold taxes on payments made to iPass, then Customer shall gross up such payments by the amount of tax withheld. All prices are exclusive of tax. If required to do so by law, iPass will charge sales or value added tax where registered. Otherwise, Customer is liable to self-assess or reverse charge applicable sales or value added tax. Customer will provide and make available to iPass any resale certificates and other exemption certificates that are related to the taxes that may be due as a result of this Agreement. Upon receipt of any such resale or exemption certificate, iPass will exempt Customer in accordance with law, effective on the date iPass receives the certificate(s).
7. TERM AND TERMINATION
7.1 Term of the Agreement. This Agreement commences on the Effective Date of the initial Service Order Form and continues until all Subscription Terms in all Service Order Forms have been terminated (the “Term”).
7.2 Subscription Terms. The Subscription Term begins the first day of the next full calendar month following the Effective Date of the Service Order Form and continues for the duration of time indicated in the Service Order Form. Subscription Terms will automatically renew for additional terms of one (1) year (each a “Renewal Subscription Term”) until such time that either party gives thirty (30) days written notice to the other party of its intention not to renew the applicable Service Order Form at the end of the then-current Subscription Term or Renewal Subscription Term. Unless otherwise provided for in any Service Order Form, all terms and conditions shall be the same during the Renewal Subscription Term. The Subscription Term and all Renewal Subscription Terms are collectively referred to hereafter as the “Subscription Term”.
7.3 Early Termination. If Customer terminates a Service Order Form or the Agreement prior to the end of a Subscription Term, or iPass terminates a Service Order Form or the Agreement pursuant to Section 7.4, in addition to other amounts Customer may owe iPass, Customer must immediately pay any then unpaid Subscription Fees associated with the remainder of such Subscription Term. This amount will not be payable by Customer in the event Customer terminates a Service Order Form or the Agreement as a result of a material breach of this Agreement by iPass, provided that such breach is not cured within the notice period set forth in Section 7.4 below. No refunds or credits for Subscription Fees or other Fees or payments will be provided to Customer if Customer elects to terminate Customer’s Service Order Form or the Agreement prior to the end of the-then current Subscription Term.
7.4 Termination for Material Breach. If either party materially breaches this Agreement, including but not limited to failure to pay Fees and charges when due under the Agreement, and such breach is not cured within thirty (30) days after written notice is given to the breaching party, then the other party may, by giving written notice to the breaching party, terminate the Agreement as of the end of such thirty (30) day notice period or such later date as is specified in such notice of termination.
7.5 Suspension and/or Termination. iPass reserves the right to modify, suspend or terminate the Service (or any part thereof), Customer’s account or Customer’s rights to access and use the Service if iPass believes that Customer or Users have violated this Agreement. Unless legally prohibited from doing so, iPass will use commercially reasonable efforts to contact Customer directly via email to notify Customer when taking any of the foregoing actions. iPass shall not be liable to Customer or Users or any other third party for any such modification, suspension or discontinuation of Customer rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by Customer or Users may be referred to law enforcement authorities at iPass’ sole discretion.
7.6 Effects of Termination. Upon termination of the Agreement, all licenses granted hereunder will immediately terminate, Customer will return or destroy all Client Software and Documentation in its possession, and each party will return or destroy all copies of the other party’s Confidential Information.
8. CONFIDENTIAL INFORMATION
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all Service Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind but not less than reasonable care. The Receiving Party agrees: (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to and disclosure of Confidential Information of the Disclosing Party to those of its, and its Affiliates’ Users, who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Service Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliates, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. PROPRIETARY RIGHTS.
9.1 Reservation of Rights. As between the parties, iPass, its licensors or suppliers will retain all title, copyright and other proprietary and intellectual property rights in and to the Service, the Client Software, and any other software, products, technology, materials and service, as well as any modifications or translations thereof that iPass may provide, or Customer may have access to hereunder. All rights in and to the foregoing not expressly granted to Customer in this Agreement are reserved to iPass, its licensors or suppliers. In particular, but without limiting the generality of the foregoing, no right to or license in the source code for the Client Software is granted hereunder. Customer hereby agrees that Customer does not acquire any rights in any such software, products, technologies or services other than those specified in this Agreement.
9.2 License Grant. During the Term of this Agreement, iPass grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to access and use the Client Software and Service in accordance with the terms of this Agreement.
9.3 Restrictions. Customer shall not: (i) modify, copy or create derivative works based on the Service, Client Software or iPass technology: (ii) disassemble, reverse engineer, or decompile the Service, Client Software or iPass technology, or access it in order to (A) build a competitive product or service, or (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Client Software or Service, or (iii) obfuscate, alter, or remove any copyright, trademark, or other proprietary notice or legend on or in the Client Software, Service or Documentation and will include all such markings in all copies of such materials.
9.4 Feedback. From time to time, iPass may send Customer surveys, comment cards, customer satisfaction forms, or
other requests to provide feedback (“Feedback”). Customer hereby grants iPass, its licensors, and suppliers a perpetual, unlimited, worldwide, fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information Customer provides to iPass, and Customer agrees that iPass can use, disclose, reproduce, distribute, and exploit the Feedback without any restriction or compensation to you. iPass does not waive any rights to use similar or related ideas or feedback previously known to us, developed by iPass, or obtained from sources other than Customer.
10. DISCLAIMER OF WARRANTIES. THE SERVICE, INCLUDING ALL SERVICE AND NETWORK COMPONENTS, THE CLIENT SOFTWARE, SITE AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, IPASS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES ARISING OUT OF THESE TERMS OR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT IPASS DOES NOT WARRANT THAT THE SERVICE AND CLIENT SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OBTAINED BY CUSTOMER FROM IPASS OR THROUGH THE USE OF THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. IPASS DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS.
11. LIMITATION OF LIABILITY
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE CLIENT SOFTWARE, THE SERVICE OR SITE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, IPASS’ AGGREGATE LIABILITY TO CUSTOMER, USERS OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE THREE (3) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT IPASS’ POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF IPASS WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IPASS HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE CLIENT SOFTWARE AND SERVICE PROVIDED FOR IN THIS AGREEMENT.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, IPASS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12.1 iPass will indemnify and hold Customer harmless, from and against any third party claim for which Customer becomes liable, by reason of Customer’s use of the Client Software as permitted hereunder, alleging that the Client Software infringes or misappropriates a the U.S. registered patent, U.S. copyright or U.S trademark rights of such third party (an “IP Claim”). iPass shall, at its expense, defend such IP Claim and pay damages finally awarded against Customer in connection therewith.
If use of the Client Software by Customer or Users has become, or in iPass’ opinion is likely to become, the subject of any such IP Claim, iPass may at its option and expense: (a) procure for Customer the right to continue using the Client Software as set forth hereunder; (b) replace or modify the Client Software with a functionally similar service; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the unused portion of any fees prepaid by Customer for the remainder of the Term. iPass will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by: (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Client Software by anyone other than iPass; or (iii) the combination, operation or use of the Client Software with other hardware or software where the Client Software would not by itself be infringing.
The provisions of this Section 12.1 state the sole, exclusive and entire liability of iPass to Customer (and Users) and constitutes Customer’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Client Software by Customer or Users.
12.2 Customer agrees to indemnify, defend and hold harmless iPass and its officers, directors, employees, agents, successors and assigns from and against any loss, liability or claim, including claim for reasonable attorney’s fees, brought by any third party which arises from or relates to Customer’s or Users’: (a) infringement of any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy through use of the Service; (b) violation of any applicable law, statute, ordinance or regulation when using the Service; (c) violation of iPass’ Acceptable Use Policy; or (d) material breach of this Agreement.
12.3 Each party’s indemnification obligations are contingent upon receipt from the indemnified party of: (a) prompt notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) all reasonable necessary cooperation of the indemnified party. The indemnified party may participate in the defense and settlement of such claim with counsel at its own expense. The indemnified party shall not settle or make any admissions with respect to a claim without the indemnifying party’s prior written consent. The indemnifying party shall not settle any claim without the indemnified party’s consent if such settlement involves an admission of liability on the part of the indemnified party or requires the indemnified party to take or refrain from taking any action (except for settlements by iPass with respect to the use or non-use of the Client Software).
13. ASSIGNMENT; ENTIRE AGREEMENT
13.1 iPass or Customer may, without either Party’s prior consent, assign this Agreement to an Affiliate or in connection with a merger or change of control of iPass or the Customer or the sale of all or substantially all of iPass assets or Customer’s assets, provided that any such successor agrees to fulfill its obligations under this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2 The Agreement consists of these Terms, together with all Service Order Form(s) which reference these Terms, and constitutes the entire agreement and supersedes any and all prior agreements between Customer and iPass with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation Customer or Affiliates provide (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Where there is a conflict between this Agreement and the Service Order Form, the Service Order Form will control.
14. SEVERABILITY. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15. EXPORT COMPLIANCE AND USE RESTRICTIONS. The Service, Client Software or components of the Service which iPass may provide or make available to Customer or Users may be subject to U.S. export control and economic sanctions laws. Customer agrees to comply with all such laws and regulations as they relate to access to and use of the Service, Client Software and such other components by Customer and Users. Customer or Customer’s Users shall not access or use the Service or Client Software if Customer is located in any jurisdiction in which the provision of the Service, Client Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”), and Customer or its Users shall not provide access to the Service or Client Software to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that: (i) Neither Customer nor any of its Users are named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Neither Customer nor its Users area national of, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service or Client Software in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Users are located.
16. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship among the parties.
17. SURVIVAL. Sections 2, 3, 5, 6, 8-13 and 15 (and any other Sections that reasonably should survive termination of the Agreement) shall survive termination of the Agreement with respect to use of the Service and Client Software by Customer or Users. Termination of the Agreement shall not limit Customer’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
18. NOTICE. Any notices required or permitted hereunder will be given to the attention of the Legal Department at the address specified as the corporate address of each company or at such other address as the parties specify in writing. Notice will be deemed given: upon personal delivery; if sent by confirmed facsimile, upon confirmation of receipt; if sent by overnight courier, upon receipt; or, if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.
19. GOVERNING LAW. The Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. Customer hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Mateo County, for the purpose of resolving any dispute relating to the Agreement or access to or use of the Service by Customer or Users.
21. Customer has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Customer may have to any other party.
21. FEDERAL GOVERNMENT END USE PROVISIONS. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Client Software and Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Client Software and Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement. The Client Software and Service were developed fully at private expense. All other use is prohibited.