Installation, activation and connectivity
The Customer is responsible for installing and activating EP5G and its specific parts in accordance with Ericsson’s instructions. This includes associating and configuring Hardware for use with Management as a Service and the Software. The Customer is also responsible for providing connectivity to access the Management as a Service.
Should Ericsson be involved in the installation and activation of EP5G and its specific parts either on behalf of Customer or an Approved Source, Ericsson will do so within the terms set out in an agreed statement of work. Customer will at its own cost fulfil all its obligations set out in the agreed statement of work at such time as stipulated therein, and as necessary for Ericsson to fulfil its obligations. Customer will do everything and provide all information that Ericsson requires to perform the installation and activation services, including (a) providing technical data, (b) ensuring co-operation with any of its third party contractors, (c) making any necessary site area available to Ericsson and Ericsson subcontractors, and (d) obtain and maintain any necessary government licenses, authorisations or permits. If Customer fails to meet any of its obligations in this section or to pay any applicable fees, Ericsson will have no further obligation to fulfil the agreed statement of work. Ericsson will in its sole discretion determine the criteria necessary to test whether EP5G has been successfully installed. If Customer decides to make commercial use of EP5G or any part thereof before determination of its successful installation, the EP5G installation will be deemed successful.
Connection of a mobile phone to EP5G will deactivate that phone’s voice and public warning system (PWS) integration capabilities and it will not be able to make or receive voice calls (including emergency calls) or receive alerts while connected to EP5G. Ericsson disclaims responsibility for any liabilities that may arise in relation thereto.
Limited Warranty; Disclaimer
Ericsson provides a limited hardware warranty with the Products, a copy of which is available online at https://Cradlepoint.com/legal/ (Warranty Statement). The warranties shall commence upon product delivery to the end user and remain in effect for the warranty period(s) under the conditions set forth in the Warranty Statement.
EXCEPT AS EXPRESSLY SET FORTH UNDER THIS ECA, ERICSSON (AND ERICSSON’S AFFILIATE OR CONTRACTOR) DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS REGARDING THE EP5G, INCLUDING HARDWARE, SOFTWARE AND DOCUMENTATION OR SERVICES, INCLUDING NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, AND/OR FITNESS FOR PURPOSE. ERICSSON DOES NOT WARRANT THAT ANY PARTICULAR RESULT CAN BE DERIVED FROM USING THE HARDWARE, SOFTWARE OR DOCUMENTATION OR THAT THE SOFTWARE WILL BE ERROR-FREE.
Audit
Ericsson or its appointed representative (the “Auditor”) may check the installation of EP5G on Customer’s site to confirm Customer’s compliance with Ericsson’s installation guide, and this ECA, and paid for Capacity. Customer will reasonably co-operate with the Auditor at its own expense, including providing (a) all documentation and information Auditor reasonably requests within the scope of audit, and (b) reasonable access to EP5G, Customer employees, premises, and equipment. Any Ericsson warranty or commitment to support EP5G will only apply where the system is installed in accordance with Ericsson’s instructions and specifications.
Term; suspension and termination
Subject to the payment of the applicable fees, the license granted herein with respect to the Software, Documentation and Management as a Service will remain effective until terminated or until the applicable Customer Agreement is terminated or expires, whichever is earlier. This ECA is entered into as of the date that Customer accepts the terms herein (the “Effective Date”).
Ericsson may block, restrict or suspend Customer’s access to the Software and/or Management as a Service or terminate this ECA at any time if Ericsson unilaterally determines that there is a general security or operational risk to the Software or Management as a Service or parts thereof, or if required by law or regulation. Ericsson may also restrict or suspend Customer’s access to the Software and Management as a Service or terminate this ECA if Ericsson unilaterally determines that Customer (a) has breached this ECA, (b) reduces Ericsson’s network integrity, (c) may expose Ericsson, Ericsson Affiliate, or its contractor to legal liability, or (d) violates any applicable law or regulation (including in relation to export control) or any of the acceptable use obligations. If the cause can be remedied, Ericsson will notify Customer of the steps needed to restore the Software or Management as a Service or parts thereof. If the cause cannot be remedied or Customer fails to take such action within a reasonable time, Ericsson may terminate Customer’s license to the Software and access to Management as a Service without liability or paying compensation.
On termination of this ECA for any reason (except for perpetual licenses granted by Ericsson and paid for), (a) Ericsson will remotely erase the Software (including any back-up copies), and if that is not possible, request Customer to erase the Software (including any back-up copies); (b) Customer will return or, on Ericsson’s written approval, delete or destroy all Documentation. Customer will promptly confirm in writing to Ericsson that it has returned, deleted, or destroyed the Software and Documentation after doing so.
Ownership
Ericsson, Ericsson Affiliate or its contractor retains all Intellectual Property Rights in and to (a) EP5G including Hardware, Software, Documentation, Management as a Service and any other material, product, or service provided under the Customer Agreement, (b) any graphics, products or content included in EP5G; (c) all underlying software, data, and other materials that operate EP5G or parts thereof (including any APIs/SDK); (d) any modification, enhancement or derivative work made of (a) through (c), including Customer’s feedback or suggestions about EP5G or parts thereof. Customer retains all Intellectual Property Rights to its content or data it uses in connection with EP5G and is responsible for any claims in connection to such content or data. Customer may require a separate patent license from a third party to use EP5G.
Except as expressly set out in this ECA, nothing in this ECA creates any right of ownership or license in or to the other party’s Intellectual Property Rights. Each party continues to independently own and maintain its Intellectual Property Rights. No implied licenses exist under this ECA, and any right that Customer is not granted under this ECA is reserved to Ericsson or its licensors.
Indemnity
Customer will indemnify and hold harmless Ericsson from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from (i) Customer’s use of and access to EP5G, including the Hardware, Software, Documentation, and Management as a Service or parts thereof (including, without limitation, any interface), or (ii) Customer’s failure to comply with any term of this ECA.
Limitation of liability
CUSTOMER AGREES THAT ERICSSON UNDER THIS ECA WILL HAVE NO LIABILITY WHATSOEVER FOR ANY SERVICES RECEIVED OR ANY USE CUSTOMER MAKES OF EP5G, INCLUDING THE HARDWARE, SOFTWARE, DOCUMENTATION, AND MANAGEMENT AS A SERVICE.
Confidentiality
EP5G, including the Software and Management as a Service (and any performance data, benchmark results, security assessments and all other technical information relating to the Software or Management as a Service), Documentation, this ECA, and any other information provided by Ericsson or Approved Source in connection with EP5G, including the Software and Management as a Service, shall be deemed confidential information of Ericsson (“Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that Customer can evidence in writing: (a) is already known to Customer without restriction as to disclosure prior to disclosure by Ericsson; (b) becomes publicly available without fault of Customer; (c) is rightfully obtained by Customer from a third party without restriction as to disclosure; or (d) is independently developed or created by Customer without use of the Confidential Information. Except as otherwise expressly authorized herein, Customer agrees to: (i) use the Confidential Information only to perform hereunder or exercise rights granted to it hereunder; (ii) treat all Confidential Information in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Confidential Information only to Customer’s employees and authorized persons who have a need to know such information for the purposes of this ECA, provided that any such employee or authorized person will be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this ECA, and Customer shall remain liable for any non-compliance with the terms of this ECA of such employee or authorized persons. Nothing in this ECA shall prevent Customer from disclosing information to the extent Customer is legally obligated to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, Customer shall: (i) assert the confidential nature of the information to the agency, (ii) immediately notify Ericsson in writing of the agency’s order or request to disclose, and (iii) cooperate fully with Ericsson in protecting against any such disclosure and obtaining a protective order narrowing the scope of the obligated disclosure and protecting its confidentiality. The confidentiality obligations under this section shall survive any expiration or termination of this ECA and be effective for a period of five (5) years after the expiration or termination of this ECA.
Other Service Terms
Ericsson will perform services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this ECA. EXCEPT FOR THE WARRANTY SET FORTH IN THE IMMEDIATELY FOREGOING SENTENCE, ERICSSON MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Except as otherwise set forth in a statement of work issued by Ericsson, Hardware and services will be deemed accepted upon delivery and Software will be deemed accepted upon Customer’s use thereof.
Export control
Customer acknowledges that the Software may be controlled under applicable export and import control or sanctions laws and regulations. Customer will comply strictly with all such applicable laws and regulations.
Customer will only use the Software for civil and peaceful use. Thus, Customer will not use the Software for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons.
Upon Ericsson’s request, Customer will provide to Ericsson an end-user statement, in the format that Ericsson provide, signed by authorized representatives of the Customer. If there is a delay in providing such end-user statement, Ericsson may postpone providing or delivering the Software for a period equivalent to the delay.
The Hardware is provided for Customer’s own use in the Original Territory and is not for further resale, lease or transfer. Customer will not transfer or export the Hardware to any Affiliate or third party outside the Original Territory unless Customer has obtained Ericsson’s prior written consent to such transfer or export.
Governing law and dispute resolution
Governing Law. Unless unenforceable under applicable law, this ECA will be governed by and interpreted in accordance with the laws of the applicable state or country identified in the table below based on Customer’s primary place of business, without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply. This ECA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in this ECA below (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to this ECA will be instituted in the applicable courts identified below, and each party consents to the exclusive personal jurisdiction of these courts. Notwithstanding the foregoing, either party may seek injunctive relief in any court of appropriate jurisdiction regarding any breach of its intellectual property or proprietary rights.
| Customer’s Primary Place of Business |
Governing Law |
Court with Jurisdiction |
| United States*, Canada, Mexico, or a country in Central or South America or the Caribbean |
State of Texas, USA, and controlling federal law |
State and federal courts in Texas, USA |
| United Kingdom or a country in the Middle East or Africa |
England and Wales |
Commercial Court in London, England |
| A Country in Europe, other than United Kingdom |
Sweden |
Sweden |
| Australia or New Zealand |
New South Wales, Australia |
State courts in New South Wales, Australia |
| A Country in Asia or the Pacific region, other than Australia or New Zealand |
Singapore |
Singapore |
*If Customer is a public sector agency or government institution in the United States, the laws of the state in which Customer is located will govern this Agreement and any dispute or action arising out of or related to this Agreement or the Services.
Dispute Resolution. Ericsson and Customer will attempt to settle any claim or controversy arising out of this ECA through consultation and negotiation in good faith and a spirit of mutual cooperation. Notwithstanding the above (Governing Law), if Customer’s primary place of business is not in the United States and attempts to resolve through consultation and negotiation fail, then such claim or controversy claim arising out of or relating to this ECA or the existence, validity, breach or termination thereof, whether during or after its term, shall be submitted for arbitration to be administered in Dallas, Texas, USA, by the International Chamber of Commerce (“ICC”). Such arbitration proceedings shall be conducted in English before a single arbitrator if the parties agree to the arbitrator, and except as otherwise provided in this Agreement, shall be conducted in accordance with the then current commercial arbitration rules of the ICC for international arbitration. To initiate arbitration, one of the parties will file the appropriate notice at the ICC. The parties will in good faith agree on the arbitrator. If the parties are unable to agree on an arbitrator, the arbitration panel will consist of three (3) arbitrators, one arbitrator appointed by each of Customer and Ericsson and a third neutral arbitrator appointed by the two arbitrators designated by the parties. Any communication between a party and any arbitrator will be directed to the ICC for transmittal to the arbitrator(s). The parties expressly agree that the arbitrators will be empowered to grant, at either party’s request, injunctive relief. The arbitral award will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrators. The award will (i) be granted and paid in U.S. dollars exclusive of any tax, deduction or offset, and (ii) include interest (which shall accrue at an annual rate of four percent (4%) above LIBOR, from the date of that the award is rendered until it is fully paid. Judgment upon the arbitral award may be entered in any court that has jurisdiction thereof. The arbitrators shall require the attorney’s fees and expenses of the substantially prevailing party to be paid by the other party. Any additional costs, fees or expenses incurred in enforcing the arbitral award will be charged against the party that resists its enforcement. Nothing in this section will prevent either party from resorting to judicial proceedings if (i) good faith efforts to resolve the dispute under these procedures has been unsuccessful, (ii) interim relief from a court is necessary to prevent serious and irreparable injury to one party or to others, (iii) litigation is required to be filed prior to the running of the applicable statute of limitations, or (iv) in the case of the other party’s insolvency or bankruptcy (or similar proceedings). The use of any alternative dispute resolution procedure will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party.
Product Disposal
The parties acknowledge and agree that sound environmental waste treatment of retired/decommissioned products is important. Therefore, the parties have agreed that:
- Customer will decommission and deliver to Ericsson’s designated pick-up place in the Original Territory for retired/decommissioned products (the “Pick-Up-Place”), and
- Ericsson will collect at the Pick-Up-Place, and arrange for handling in accordance with the EU Directive 2012/19/EU or any corresponding or similar applicable legislation/public regulation (“Recycling Legislation”), all Hardware which previously has been sold to Customer under a Customer Agreement and which is covered by any Recycling Legislation. Both parties shall bear their own cost in connection with this. Risk of loss and damage to the relevant hardware and transfer of title thereto, shall pass to Ericsson upon delivery at the Pick-Up Place.
Other provisions
This ECA constitutes the entire agreement of the parties relating to the subject matter of this ECA. This ECA supersedes all other oral or written agreements, understandings, representations, or courses of dealing relating to the subject matter of this ECA. The headings in this ECA are for convenience only and shall not affect interpretation. The terms of this ECA prevail over any of Customer’s general terms and conditions regardless whether has submitted its request for proposal, order, or such terms. Ericsson’s provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this ECA.
Ericsson will not be responsible for securing, allocating, and/or otherwise providing any network radio frequency spectrum in connection with EP5G or this ECA.
Ericsson may offer training to Customer personnel on operating EP5G on terms to be agreed separately.
Customer may not assign any right or transfer any obligation under this ECA unless it has obtained the prior written consent of Ericsson.
Customer will, obtain and maintain all necessary licences and/or approvals needed to use EP5G.
No waiver of satisfaction of a condition or non-performance under this ECA is effective unless it is in writing and signed by the party granting the waiver.
If any provision of this ECA is held to be unenforceable (a) that provision is to be interpreted either by modifying it to the minimum extent to make it enforceable (if permitted by law), or disregarding it (if not); and (b) the rest of this ECA is to remain in effect as written.
The Personal Data of the parties’ employees and other workforce whose data is provided while carrying out this ECA will only be processed to the limited extent required to administrate the business relation between Ericsson and the Customer. Customer will obtain all necessary consents from, or make all necessary notifications to any employee to allow Ericsson to lawfully process content (including Personal Data) in performing its obligations and exercising its rights under this ECA.
Ericsson may contract portions of its undertakings under this ECA to a Ericsson Affiliate or a subcontractor of Ericsson’s choice. Ericsson is responsible and liable to Customer for the Ericsson Affiliate´s or subcontractor’s performance under this ECA as for its own. Ericsson may re-locate, off-shore or near shore relevant parts of any service provided under this ECA to such Ericsson Affiliate or subcontractor to the extent permitted by applicable law (including any Personal Data requirement). Where arising, Customer authorizes Ericsson to transfer and process Personal Data outside of the Original Territory.
The parties intend that this ECA is to be interpreted as if the parties have negotiated and drafted it jointly.
Any terms that by their nature extend beyond this ECA remain in effect until fulfilled.
Ericsson reserves the right, in its sole discretion, to change, modify, add or remove provisions of this ECA at any time. By using the Service after Ericsson posts any changes to this ECA or otherwise notifies Customer of such changes, Customer agrees to accept those changes, whether or not Customer has reviewed them. If Customer does not agree to this ECA, Customer should not use the Service and Customer should cancel the Services.
