End User Agreement for NetCloud Onsite Manager

1. Description of Services. NetCloud Onsite Manager provides Customer with an on-premises network management platform to configure, deploy, monitor, operate, and troubleshoot purpose-built LTE or 5G router and adapter endpoints to manage Customer’s wireless WAN locally, without ongoing connection to the Internet. The on-premises nature of the Services and the lack of a connection to the Internet and/or Cradlepoint’s cloud servers are features that must be opted into by Customer and that Customer can change as part of its ability to manage the Services. Customer acknowledges and agrees that it will only change settings allowing the Services to connect to the Internet and/or Cradlepoint’s cloud servers if it intends and desires such connection. Access to Updates and the Services generally may require Customer to access and use Cradlepoint’s NetCloud Manager Services, which is a cloud-connected service, and/or the Internet. Cradlepoint may, in its discretion, also provide access to APIs and SDKs to enable connection to and integration with third party applications.
2. Provision of Purchased Services. Customer will purchase Services from a Channel Partner for a designated Service Term and Entitlement as set forth in an Order Form. Access to NetCloud Onsite Manager requires End Users to download, install, run, and update from time to time the Software. Subject to Customer’s and End Users’ use of the Services in accordance with this Agreement and applicable Documentation, Cradlepoint will: (a) allow Customer to use the Services pursuant to this Agreement and Documentation, (b) subject to Customer’s compliance with all of the terms and conditions of the Agreement, grant Customer and its End Users, only for so long as Customer has an active and paid subscription to the Services, a limited, personal, non-sublicensable, non-transferable, non-exclusive license to internally use the Software only in accordance with any accompanying documentation, and only as required to access the Services in accordance with this license., and (c) provide the Services in accordance with laws and government regulations applicable to Cradlepoint’s provision of its Services to its customers generally without regard for Customer’s particular use of the Services. The Services may only be available for use with certain Cradlepoint devices and hardware, which are subject to change from time to time. Customer acknowledges and agrees that the Entitlements are enforced locally on the Services and if Customer attempts to use Services outside of the terms of the Entitlements or this Agreement, the Services (including related hardware) may not function as intended or cease functioning entirely. The Services are intended for use only in the Original Territory and the above license extends to use within the Original Territory.
3. Customer Support. Cradlepoint and/or its designated Channel Partners will use commercially reasonable efforts to provide Cradlepoint standard support for the Services to Customer during the designated Service Term and in accordance with Cradlepoint policy then in effect at no additional charge, and/or upgraded support if purchased. Customer may be required to grant remote access to its devices or systems to Cradlepoint and/or a designated Channel Partner in order to receive support.
4. Updates or Additional Services. Cradlepoint may make available Updates to the Services in its sole discretion for any purpose deemed appropriate by Cradlepoint. Customer may only receive and use Updates or purchase additional Services beyond the current Entitlement if Customer has a current, unexpired subscription to the Services. Customer shall download, and install all Updates as released by Cradlepoint during the designated Service Term. Cradlepoint may present new terms or a revised version of this Agreement for Customer’s acceptance at the time such Update is made available. Cradlepoint will use reasonable efforts to give Customer prior notice of any material Updates and changes to this Agreement, which notice may be provided via the Services, email, or other notification method.
5. Evaluation Services. If Cradlepoint makes Evaluation Services available to Customer, Customer may only use the Evaluation Services on a temporary basis for the period of time designated by Cradlepoint or the Channel Partner (the “Evaluation Period”). If there is no Evaluation Period specified, such use is limited to 90 days after the Evaluation Services are made available to Customer. If Customer does not stop using the Evaluation Services or the hardware on which it is authorized for use by the end of the Evaluation Period, Cradlepoint or a Channel Partner may invoice Customer for the applicable list price and Customer agrees to pay such invoice. The Evaluation Services may contain bugs, errors, or other issues. Unless approved by Cradlepoint, Customer will not use Evaluation Services in a production environment. Cradlepoint may stop providing the Evaluation Services at any time and Customer will stop using the Evaluation Services at such time. Any data Customer enters into the Services and any configurations made to the Services by Customer during the Evaluation Period will be permanently lost unless Customer purchases a subscription to the same Services before the end of the Evaluation Period. Customer shall delete any copies of the Evaluation Services in Customer’s possession or control promptly after Customer is required to stop using the Evaluation Services, unless Customer purchases a subscription as set forth above.
6. Limited Release Services. Cradlepoint may make Limited Release Services available to customer to try at its option for a limited time period to be determined by Cradlepoint in its sole discretion and subject to any additional terms as may be established by Cradlepoint.

1. Customer’s Responsibilities. Customer will use the Service in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any privacy and data security laws, employment, marketing and consumer protection laws and guidelines. Customer is responsible for maintaining the security of Customer’s account, passwords, including but not limited to administrative and user passwords and files, and for all uses of Customer account with or without Cradlepoint’s knowledge or consent. Customer will also cooperate with Cradlepoint (i) in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services, and (ii) in connection with the performance of this Agreement by making available such personnel and information as may be reasonably requested by Cradlepoint. Customer is responsible for reviewing applicable Documentation (including usage materials) to implement the Service and configure privacy and security controls in accordance with Customer’s IT and security policies and procedures.
2. Restrictions. Customer will not, and will not permit its End Users or any third party to: (a) use the Services in connection with any High-Risk Applications; (b) transfer, sell, sublicense, redistribute, use or make the Services available for third party usage, or for any purpose other than its own internal use, except as set forth in Section 2.3; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any portion of the Service, documentation or data related to the Service (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (d) modify, translate, or create derivative works based on the Service; (e) run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Service; (f) facilitate any disruption, threat, or attack on the Services such as through the distribution of Malicious Code, denial-of-service attack, unauthorized penetration testing, or other action that poses a security risk to the Services, Cradlepoint’s systems, or other users of the Services; (g) move the Services or any related hardware to any other country other than the Original Territory, unless authorized in writing by Cradlepoint; or (h) use the Services in any manner that (i) is illegal, harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (ii) impersonates any person or entity, including without limitation any employee or representative of Cradlepoint, (iii) is unwanted such as sending unsolicited bulk, commercial, or spam messages in violation of law; (iv) places an unreasonable or unexpected load on the Services; or (v) may subject Cradlepoint to liability.
3. Managed Services. If a Channel Partner desires to offer a Managed Service, and if approved by Cradlepoint, then Channel Partner must participate in Cradlepoint’s managed service provider partner program for NetCloud Onsite Manager and/or enter into a separate agreement with Cradlepoint to obtain the right to offer a Managed Service related to NetCloud Onsite Manager. Channel Partner acknowledges that in connection with offering a Managed Service it is the Customer subject to the terms of this Agreement. Channel Partner will: (a) hold the Entitlements with the corresponding rights to the Services, (b) contract with its own end users to provide a Managed Service pursuant to terms that are at least as protective of Cradlepoint and Cradlepoint’s Services as this Agreement, (c) comply with then- current requirements of Cradlepoint’s managed service provider program, and (d) remain responsible for all acts and omissions, including any breaches of this Agreement, of its end users as if Channel Partner committed such act or omission itself. Channel Partner is an independent entity and has no authority to make representations or warranties, incur obligations, or otherwise act on behalf of Cradlepoint in any way. Cradlepoint may exercise any rights and/or remedies under this Agreement, at law or in equity, based upon such acts or omissions of Channel Partner’s or its end users.
4. Customer Contacts. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”) and a point of contact in the event of a security incident (“Security Contact”). Customer may change the designated Primary Contact and Security Contact at any time through its account settings on the Services. Customer will cooperate with Cradlepoint in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Cradlepoint may reasonably request.

1. The Receiving Party agrees: (a) not to divulge to any third person any Confidential Information, except to those employees, Affiliates, legal counsel and accountants with a need to have access thereto for purposes of this Agreement or to potential investors or acquirers (each a “Permitted Recipient”), and (b) to take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that the party takes with its own confidential information, but in no event less than reasonable precautions to protect Confidential Information. The Receiving Party must ensure that any Permitted Recipient is subject to written confidentiality obligations no less restrictive than those set forth in this Agreement and will remain liable for any breach of this Section by Permitted Recipients.
2. The Receiving Party may disclose the Disclosing Party’s Confidential Information if: (a) such disclosure is approved in writing by the other party prior to such disclosure, (b) is included in a filing required to be made by the Receiving Party with a governmental authority or is otherwise required to comply with applicable law or governmental order, provided it will provide notice to Disclosing Party (if legally permissible) and reasonably cooperate, at Disclosing Party’s expense, to obtain confidential treatment or a protective order.
3. Upon the reasonable written request of the Disclosing Party, the Receiving Party will either return, or certify to the deletion or destruction of all Confidential Information of Disclosing Party, unless prohibited by law, and provided that such request is submitted no later than 5 days after termination or expiration of this Agreement.
4. Customer acknowledges that Cradlepoint does not wish to receive any Confidential Information from Customer that is not necessary for Cradlepoint to perform its obligations under this Agreement (including, without limitation, any information protected under applicable privacy laws and regulations), and, unless the parties specifically agree otherwise, Cradlepoint may reasonably presume that any unrelated information received from Customer is not Confidential Information.

1. Definitions.
   • “Customer Content” means all electronic data and information transmitted by or on behalf of Customer or its End Users through use of the Services.
   • “Customer Data” means all electronic data and information submitted by Customer for setup and provisioning of the Services, including all data regarding and submitted by or on behalf of Customer’s End Users. Customer Data does not include Customer Content. This includes, but is not limited to, any data or information provided by Customer pursuant to seeking support for the Services.
   • “Cradlepoint Data” means all information collected or compiled during the support process by Cradlepoint or Channel Partners providing support, including information about Customer’s use of the Services and the provision, performance, and operation of the Services. Such information shall be anonymized such that it does not identify Customer or Customer’s Confidential Information prior to any external use by Cradlepoint
2. Limited License from Customer. By using or accessing the Services, Customer hereby grants to Cradlepoint, its Affiliates, and applicable licensors and service providers a worldwide, royalty-free, non-exclusive, irrevocable, sublicensable, limited right and license as necessary to provide, support, and ensure proper operation of the Services in accordance with this Agreement to: (a) host, use, copy, display, store, transmit, and modify Customer Data and Subscriber Data, and (b) host, copy, transmit, and display Customer Content.
3. Customer’s Right to Data and Content. Customer represents and warrants to Cradlepoint that: (a) it has valid legal bases for its data processing and obtained all necessary consents to provide contact details and any personal data that Customer provides to Cradlepoint; (b) it has complied with all applicable privacy, employment, consumer protection, marketing and data security laws and government guidelines, including without limitation all laws that apply to collecting, accessing, using, disclosing any Customer Data and Subscriber Data that Customer provides to Cradlepoint, and laws applicable to protection of minor children and students; (c) it has notified the relevant data subjects that Cradlepoint will be given such information for use in accordance with the terms of this Agreement; and (d) it has the right to access and use Customer Content in connection with the Services. Customer shall notify Cradlepoint as soon as reasonably practicable of any amendments required to any personal data either through the Service or as otherwise directed in the Privacy Notice. If Customer receives any notice or claim that any Customer Data, Subscriber Data, Customer Content, or activities hereunder with respect to any Customer Data, Subscriber Data, or Customer Content, may no longer be used or must be removed, modified, or disabled to avoid violating any third-party rights or any applicable law or regulation, Customer will do so promptly. If Customer does not, then Cradlepoint may (but is not required to) suspend activity hereunder with respect to that Customer Data, Subscriber Data, and Customer Content.
4. Use of Cradlepoint Data. Notwithstanding anything else in this Agreement or otherwise, Cradlepoint may collect, compile, and use Cradlepoint Data to the extent such Cradlepoint Data is provided to Cradlepoint or a Channel Partner by Customer. Cradlepoint owns all right, title and interest in and to the Cradlepoint Data and may use, reproduce, sell, develop, and publicize Cradlepoint Data, provided that it does not identify Customer or Customer’s Confidential Information. To the extent needed to perfect Cradlepoint’s ownership in the Cradlepoint Data, Customer hereby irrevocably assigns all right, title, and interest in such Cradlepoint Data to Cradlepoint.
5. Protection of Customer Data. Cradlepoint will maintain, and requires its subprocessors to maintain, reasonable administrative, physical, and technical safeguards to prevent unauthorized access to or disclosure of Customer Data and Subscriber Data, as described in the Documentation and Cradlepoint’s Privacy Notice. Subject to Section 3.3, after termination of all Services provided to Customer, Cradlepoint will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control in accordance with Cradlepoint’s data retention policy, unless legally prohibited.
6. Compliance with Privacy Laws. Unless otherwise expressly set forth in writing by Cradlepoint, Customer acknowledges that it is the data controller (or equivalent term used in the applicable law) of Customer Data, as defined under applicable privacy laws. Cradlepoint may process and store Customer Data in the United States, the European Economic Area (the “EEA”), or outside of the country where it was collected. Cradlepoint may transfer Customer Data outside the EEA using the standard contractual clauses pursuant to the Commission Decision of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, or any replacing version of such clauses adopted by the European Commission. Customer agrees that Cradlepoint may use subcontractors and subprocessors to provide the Service and such subcontractors and subprocessors may process Customer Data. Customer may transfer and access Customer Data from multiple locations around the world consistent with its global operations and in compliance with appliable laws and regulations. If Customer or its End Users use the Services in a location with local laws that regulate collection and use of data about individuals and transfer of such data outside of such jurisdiction, Customer accepts responsibility for compliance with all such applicable laws. The parties acknowledge that Cradlepoint is service provider as defined by the California Consumer Privacy Act of 2018 (as amended) and as may be defined under other U.S. state laws. For more information, please see Cradlepoint’s privacy policy at cradlepoint.com/privacy.
7. Software Updates. Customer should always use the most recent version of the Software and install patches and security fixes as soon as they are made available for download by Cradlepoint. Failure or delay to download increases security risks, including the ability to safeguard Customer Data. Cradlepoint is not responsible for any security incidents resulting from Customer’s delay or failure to download. Cradlepoint shall have no liability for any claim based on or arising from, nor any obligations under this Agreement related to, the use of any version of the products that is not supported by Cradlepoint at the time the claim arises.

1. Reservation of Rights. Except as expressly set forth herein, Cradlepoint alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, including Software, Evaluation Services, Limited Release Services, Cradlepoint Data, and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party relating to the Services, which are hereby assigned to Cradlepoint. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or any intellectual property rights. Customer retains any ownership rights in and to the Customer Content and Customer Data. As between them, each party retains all ownership rights in and to its Confidential Information.

1. Fees. Customer will pay the applicable Fees, without any right of set-off or deduction. All payments will be made in accordance with the payment schedule and the method of payment set forth in the Order Form. If Customer uses the Services in excess of the applicable Entitlement, Customer shall notify Cradlepoint or the Channel Partner and, regardless of whether Cradlepoint or the Channel Partner is made aware of such excess usage via notification or another way (such as pursuant to Section 6.4), then Cradlepoint or the Channel Partner may invoice Customer, and Customer agrees to pay, for such excess usage. Unless prohibited by law, all Fees paid hereunder (including any prepaid amounts) are non-refundable and quantities purchased cannot be decreased during the applicable Service Term, including without limitation if this Agreement is terminated or Services are suspended in accordance with Section 7 below.
2. Overdue Charges. Unless otherwise specified by the Channel Partner from which Customer purchased the Services, unpaid Fees may be subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
3. Taxes. Fees under this Agreement do not include any present or future taxes, levies, duties, or similar governmental assessments of any nature, including national, state, or provincial and local use, sales, value-added, property, withholding and similar taxes, if any (“Taxes”). Unless otherwise explicitly agreed in writing at the time of purchase, Customer is responsible for paying all Taxes associated with its purchases (excluding taxes assessable against Cradlepoint’s net income, property, and employees). In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid on account thereof. If Cradlepoint has the legal obligation to pay or collect Taxes for which Customer is responsible, Cradlepoint will increase the Fees to cover such payment of Taxes and invoice Customer and Customer will pay that amount unless Customer provides Cradlepoint with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Usage Review. During the Service Term and for a period of 12 months after expiration or termination, Customer will take reasonable steps to maintain complete and accurate records of its use of the Services to demonstrate compliance with this Agreement (“Customer Records”). Cradlepoint may request that Customer allow Cradlepoint and its representatives access to the Customer Records during normal business hours and the Services within thirty (30) days of such request to review Customer’s compliance with the terms of this Agreement, provided that Cradlepoint shall not make such request more than once per 12-month period. If the review process discloses underpayment of Fees: (a) Customer will pay such Fees; and (b) Customer will also pay the reasonable cost of the review if the Fees owed to Cradlepoint are 5% greater than the amounts previously paid.

1. Term of Agreement. This Agreement starts on the date that Customer accepts it and continues until all subscriptions to Services have either expired or been terminated in accordance with this Section 7.
2. Service Term. The Service Term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Service Term. Except as expressly provided in the applicable Order Form, renewal of Services will be at Cradlepoint’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which the total volume or service term length for any Services has decreased from the prior Service Term will result in revised pricing at renewal, without regard to the prior Service Term’s pricing.
3. Termination. Customer may terminate any Services or this Agreement upon thirty (30) days’ written notice to Cradlepoint. Cradlepoint may terminate any Services or this Agreement immediately upon written notice to Customer in the event of: (a) any material breach of this Agreement by Customer and/or its End Users, including without limitation, any breach of Section 2.2, any export restrictions set forth in Section 11.2 of this Agreement or any Service-Specific Terms, and/or failure to pay any Fees or other amounts when due hereunder if such breach remains uncured at the expiration of the 30-day period, or (b) if Cradlepoint’s provision of the Services or performance under this Agreement would cause Cradlepoint to breach applicable laws or cause material security or safety detriment to Cradlepoint, its employees, or contractors. Either party may terminate this Agreement upon notice to the other party: (i) upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings (provided such proceedings are not dismissed within thirty (30) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. The parties acknowledge and agree that a court order shall not be required to give effect to any termination of this Agreement.
4. Effect of Termination. Unless otherwise required under applicable law, Customer agrees that upon any termination or cancellation of any Services or this Agreement Customer will not be entitled to a refund of fees for any additional work previously performed by Cradlepoint at Customer’s request or any pre-paid Fees for Subscriptions still in effect at the time of termination or cancellation, and Customer’s obligation to pay any balance due shall survive any such termination or cancellation. Customer’s access to all Services, and any licenses or rights granted hereunder, shall terminate upon any termination of this Agreement. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability. The terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate.
5. Service Suspension. Notwithstanding anything to the contrary, Cradlepoint reserves the right to suspend or limit Customer’s access to the Service if Cradlepoint determines, in its sole discretion, that Customer’s use of the Service does or is likely to: (a) constitute a use of the service in violation of this Agreement, including without limitation Section 2 (Restrictions) or Section 11 (U.S. Government Matters) or any applicable laws or regulations; (b) damage the Service or interfere with Cradlepoint’s ability to reliably provide the Service to other users; (c) place an unreasonable or unexpected load on the Service; (d) there is a threat or attack on the cloud servers hosting the Services (including a denial of service attack) or other event that may create a risk to the Services, to Customer or to any other user of the Services; (e) Customer’s use of the Services disrupts or poses a security risk to the Services or any other user of the Services, may harm Cradlepoint’s systems or any other user of the Services, or may subject Cradlepoint or any third party to liability; (f) Customer is in default of Customer’s payment obligations hereunder; or (collectively, “Service Suspensions”). Customer understands that many of the reasons for suspension listed above are imposed on Cradlepoint by third party licensors, are subject to change without notice, and may result in Customer’s access to the Services being suspended because of the actions of other users. Cradlepoint will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to Customer (including notices posted on the website or sent to Customer’s registered e-mail address) and to provide updates regarding resumption of Customer’s access to the Services following any Service Suspension. If Cradlepoint receives any notice or claim that any Customer Data, Customer Content, or activities hereunder with respect to any Customer Data or Customer Content, may infringe or violate rights of a third party or any applicable law or regulation, Cradlepoint may (but is not required to) suspend activity hereunder with respect to that Customer Data or Customer Content.

1. Limited Hardware Warranty. All hardware products sold as components of the Services include a limited warranty (as set forth in the Cradlepoint Warranty, located at: https://customer.cradlepoint.com/s/article/cradlepoint-warranty) against defects in materials and workmanship through the designated last date of support, as set forth in Cradlepoint’s End of Life Policy, available at https://customer.cradlepoint.com/s/article/End-of-Life-EOL-Policy-Guidelines, (the “EOL Policy”) when: (a) used in accordance with Cradlepoint’s product documentation and (b) the hardware products are under a continuous, fully paid-up subscription to the Services and/or Cradlepoint NetCloud Manager Services. Cradlepoint’s limited hardware product warranty is non-transferable and extends only to the original purchaser of the products either directly from Cradlepoint or from a Channel Partner.
2. Limited Software Warranty. Cradlepoint represents and warrants that it will not knowingly include in any Software provided to Customer hereunder any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, Trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Cradlepoint fails to comply with the warranty in this Section, Customer may promptly notify Cradlepoint in writing of any such non-compliance. Cradlepoint will, within thirty (30) days of receipt of such written notification, either correct the non-compliance or provide Customer with a plan for correcting the non-compliance. If the non-compliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate the affected Service as Customer’s sole and exclusive remedy for such non-compliance. Software and Services are also subject to the EOL Policy.
3. DISCLAIMERS. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE WITH HIGH-RISK APPLICATIONS. CRADLEPOINT AND ITS THIRD-PARTY LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK APPLICATIONS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, CRADLEPOINT DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES OR ANY FEATURE OR FUNCTION CONTAINED THEREIN AT THE TIME OF PURCHASE OR AS A RESULT OF ANY UPDATES WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES, SOFTWARE AND CRADLEPOINT PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. ANY USE OF THE SERVICES IS DONE AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, LOSS OR EXPENSE INCURRED AS A RESULT OF OR ARISING OUT OF CUSTOMER’S USE OF THE SERVICES. TO THE EXTENT PERMITTED BY LAW, CRADLEPOINT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. CRADLEPOINT PROVIDES EVALUATION SERVICES AND LIMITED RELEASE SERVICES “AS-IS” WITHOUT SUPPORT OR ANY EXPRESS OR IMPLIED WARRANTY AND CRADLEPOINT SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WHATSOEVER RELATED TO SUCH SERVICES. CRADLEPOINT HAS NO LIABILITY RELATING TO CUSTOMER’S USE OF THE EVALUATION SERVICES OR LIMITED RELEASE SERVICES, WHICH CUSTOMER ACKNOWLEDGES MAY CONTAIN VARIOUS DEFICIENCIES INCLUDING, WITHOUT LIMITATION, BUGS OR SECURITY VULNERABILITIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL CRADLEPOINT OR ITS CHANNEL PARTNERS OR THIRD PARTY SUPPLIERS BE LIABLE TO CUSTOMER, ITS END USERS, OR ANY THIRD PARTY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE DATA OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF CRADLEPOINT OR ITS CHANNEL PARTNERS OR THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CRADLEPOINT WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES, OR ANY OTHER CONSEQUENCES THAT CUSTOMER MAY INCUR BECAUSE OF ANY SERVICE SUSPENSIONS OR LIMITATIONS RELATED TO CARRIER COVERAGE OR SUPPORT. THE TOTAL LIABILITY OF CRADLEPOINT AND ITS SUPPLIERS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF ONE THOUSAND DOLLARS ($1,000.00) OR THE FEES PAID FOR CRADLEPOINT SERVICES HEREUNDER IN THE THREE (3) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. CRADLEPOINT WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES, OR ANY OTHER CONSEQUENCES ARISING FROM OR RELATED TO: (I) ACTIONS OR OMISSION OF CUSTOMER THAT LEAD TO THE SERVICES BEING CONNECTED TO THE INTERNET AND/OR CRADLEPOINT’S CLOUD SERVERS, OR (II) CUSTOMER’S FAILURE TO INSTALL ANY UPDATE TO THE SERVICES MADE AVAILABLE BY CRADLEPOINT PURSUANT TO SECTION 1.5.

1. Customer Indemnity. Unless prohibited by applicable law, Customer shall, at Customer’s expense, defend and hold harmless Cradlepoint and its Affiliates and its and their respective employees, officers, directors and agents (collectively, “Related Parties”) from and against any claim, investigation, suit or proceeding brought by an unaffiliated third party (“Third-Party Claim”) that arises from or is based on any of the following: (a) Customer and its End Users’ use of the Services or breach of this Agreement, including without limitation Section 6 (Data Controller); (b) any Customer Content transmitted using the Services; (c) any violation by Customer or its End Users of any law, regulation or rule applicable to their use of the Services; (d) violation by Customer or its End Users of any privacy, employee, or consumer protection right, or intellectual property right that is implicated herein; or (e) a combination by Customer or its End Users with any non-Cradlepoint hardware, software, technology, or other materials. In addition, Customer shall indemnify Cradlepoint and its Related Parties from and against any and all damages, costs, and expenses (including court costs and reasonable attorneys’ fees), fines and other monetary liabilities (“Liabilities”) awarded against any of them in a final court judgment or a governmental authority’s order or decision in connection with any such Third-Party Claim or agreed to in a settlement of any such Third-Party Claim.
2. Indemnification Procedures. Cradlepoint will promptly notify Customer of any Third-Party Claim that falls within the scope of the indemnification rights set forth above (a “Covered Claim”) and shall provide reasonable cooperation and assistance to Customer in defending or settling the Covered Claim (at Customer’s request and expense). Notwithstanding the foregoing, a delay or failure by Cradlepoint to provide such notice or cooperation and assistance shall not relieve Customer of its defense and indemnity obligations hereunder, except to the extent that such delay or failure materially prejudices Customer’s ability to defend such Covered Claim. Customer, at its sole expense, shall promptly assume the defense of the Covered Claim after receipt of notice of such Covered Claim from Cradlepoint and shall have sole control over the defense of the Covered Claim, including any proposed settlement thereof (subject to the requirements below with respect to settlement), using counsel of its own choosing and approved by Cradlepoint, with such approval not to be unreasonably withheld. Cradlepoint, in its sole discretion, may participate in (but not control) the defense of a Covered Claim using its own counsel at its own expense. Cradlepoint shall not make any statements or admissions that may prejudice or impact Customer’s defense or settlement of the Covered Claim. Customer shall not settle any Covered Claim without first obtaining Cradlepoint’s prior written consent where the settlement of such Covered Claim results in any admission of wrongdoing or liability on the part of Cradlepoint, fails to grant Cradlepoint a release of all claims in the suit or proceeding, or imposes any obligation or liability on Cradlepoint (other than monetary liability for Cradlepoint that is fully indemnified by Customer). Further, the parties agree that any amounts paid or payable hereunder by Customer with respect to a Covered Claim in connection with a final court judgment, a fine assessed by a governmental authority, or pursuant to a settlement that is approved by Cradlepoint, shall constitute direct damages for purposes of the Agreement.

1. U.S. Government End Use Provisions. Cradlepoint provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government in connection with the Services shall be solely as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights. Any provisions that are inconsistent with applicable federal, state, or local procurement regulations are not enforceable against the government agency purchasing services under this Agreement.
2. Export Control. Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Service or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo, sanction or other export control (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer’s use of the Service is deemed a representation and warranty by Customer that the End User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. Customer may not remove the Controlled Subject Matter from, or otherwise use it outside of, the Original Territory, unless authorized in writing by Cradlepoint.

1. Governing Law. Unless unenforceable under applicable law, this Agreement will be governed by and interpreted in accordance with the laws of the applicable state or country identified 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 Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 2 (Dispute Resolution), any legal suit, action, or proceeding arising out of or related to this Agreement or the Services will be instituted in the applicable courts identified below, and each party consents to the 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, U.S.A. and controlling federal law	State and federal courts in Texas, U.S.A.
   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	Federal Court 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.

2. Dispute Resolution. Cradlepoint and Customer will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. Notwithstanding the provisions of Section 1 above, 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 Agreement 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 Cradlepoint 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.
3. Compliance with Laws. Both parties shall comply with all applicable federal, state, and local laws and regulations of the United States and the Service location in performing their respective obligations under this Agreement.

1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
2. Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer except with Cradlepoint’s prior written consent. Cradlepoint may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Cradlepoint may subcontract any performance associated with the Services to third parties, provided that such subcontract does not relieve Cradlepoint of any of its obligations under this Agreement.
3. Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by Cradlepoint, except as otherwise provided herein.
4. Order of Precedence. If there is any conflict between this Agreement and any Service-Specific Terms expressly referenced in this Agreement, the order of precedence is: (a) such Service-Specific Terms; (b) this Agreement (excluding the Service-Specific Terms and any Cradlepoint policies); then (c) any applicable Cradlepoint policy expressly referenced in this Agreement. If Customer purchased the Services from a Channel Partner, the terms of this Agreement apply to Customer’s use of the Services and prevail over any inconsistent provisions in any agreement with the Channel Partner. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
5. Force Majeure. Neither party shall be liable to the other or responsible for delay or non-performance of any of the terms of the Agreement due to a Force Majeure Event.
6. Independent Contractors. No agency, partnership, joint venture, or employment is created because of this Agreement and Customer does not have any authority of any kind to bind Cradlepoint in any respect whatsoever.
7. Third Party Beneficiaries. Unless expressly stated, this Agreement does not grant any right or cause of action to any third party. For the avoidance of doubt, any third parties, including those Customer contracted with to provide consulting, implementation, or other services in relation to the Services, are independent of Cradlepoint and Cradlepoint shall in no event be responsible for their acts or omissions, including when such acts or omissions impact Customer’s use of the Services.
8. Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9. Notices. All notices and consents under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
10. Amendments. Cradlepoint reserves the right, in its sole discretion, to change, modify, add, or remove provisions of this Agreement at any time. By using the Service after Cradlepoint posts any changes to this Agreement 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 Agreement, Customer should not use the Service and Customer should cancel the Services.
11. No Implied Waivers. If either party fails to require performance of any duty hereunder by the other party, such failure shall not affect its right to require performance of that or any other duty thereafter. The waiver by either party of a breach of any provision of this Agreement shall not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein.
12. Language. The Parties agree that this Agreement and/or any Documentation and other information or policies referenced or attached to this Agreement are in English and, in the event of a conflict between a translation of any term herein into any other language, the English language version shall govern.