Last Updated June 1, 2020
This End User Agreement (“Agreement") governs the purchase and use of the Celona, Inc. (“Celona”) wireless networking platform and related hardware by you, the end customer and user of the Products (as defined below) (the “Customer”).
By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, or executing a Purchase Order that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Celona have executed a written agreement governing Customer’s access to and use of the Products, then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”). Celona reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Products.
Celona and Customer hereby agree as follows.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“Customer Data” means data provided by Customer via the Products, including Network Metadata and User authentication credentials to the Software (username, password, and email address).
“Documentation” means the documentation regarding the Products provided to Customer by Celona.
“Edge Software” means a physical or virtual appliance of Software that connects the Hardware access point to the Orchestrator which may be deployed on a system or virtual machine under Customer’s control.
“Hardware” means Celona’s hardware products, including the wireless access points used by Customer to create the Wireless Network and the SIM cards installed by Customer on devices in order to connect those devices to the Wireless Network.
“License” has the meaning ascribed to it in Section 2.1.
“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.
“Network Metadata” means metadata about Customer’s Wireless Network and its connected devices such as (i) device type, operating system, configuration data, and location information , and (ii) metadata transmitted by devices when connected to the Wireless Network (e.g., host names, domain names, protocols, port numbers, performance metrics, and IP addresses).
“Orchestrator” means Celona’s proprietary, Software-as-a-Service solution for managing the Hardware, as described on each applicable Purchase Order.
“Partner” means a third-party authorized by Celona to resell the Products, to whom Customer has delivered a Purchase Order for such Products.
“Products” means, collectively, the Software and Hardware that are identified on a Purchase Order, including all modifications, updates, and upgrades thereto and derivative works thereof, as well as all related Documentation.
“Purchase Order” means each order document submitted to Celona by Customer (or a Partner), and accepted by Celona, setting forth, at a minimum: (i) Product names and SKU’s; (ii) quantity of each Product; (iii) agreed upon pricing; (iv) the name and address to which the Products are to be shipped; and (v) all applicable contact information of the Customer, including full company name, contact person, physical address, phone number, and email address; provided if Customer (or Partner if applicable) does not issue a Purchase Order, Celona's invoice or quote form will be deemed the Purchase Order.
“Service Level Agreement” means the Service Level Agreement located at https://celona.io/sla.
“Software” means the Edge Software and Orchestrator.
“Support” means the technical support services and resources described within the Service Level Agreement.
“Updates” has the meaning set forth in the Service Level Agreement.
“Users” means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products.
“Wireless Network” means the private mobile network deployed by Customer by means of the Products.
2. LICENSE AND RESTRICTIONS
2.1 License to Customer. Subject to the terms of this Agreement, Celona grants Customer a royalty-free, nonexclusive, nontransferable, worldwide right during each License Term to access and use the Software, subject to the terms of this Agreement (“License”). Customer must purchase a License to the Software for each of Hardware units it manages with the Software. Accordingly, Customer may only use the Software with up to the number and type of Hardware units specified on the applicable Purchase Order, however Customer may authorize an unlimited number of Users to access and use the Software.
2.2 License to Celona. Customer grants Celona a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to provide the Products to Customer. Customer represents and warrants that it possesses the necessary rights and has obtained the necessary consents to grant Celona the rights set forth in this Section 2.2 with respect to Customer Data.
2.3 Restrictions. Customer will not: (i) use (or allow a third party to use) the Products in order to monitor their availability, security, performance, or functionality, or for any other benchmarking or competitive purposes (other than for routine product comparison purposes) without Celona’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit the Products; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products or any of their components; or (iv) use the Products to conduct any fraudulent, malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations (each of (i) through (iv), a “Prohibited Use”).
3. HARDWARE WARRANTIES; RETURNS
3.1 General. Celona represents to the original purchaser of the Hardware that, from the date of shipment to the location specified on the Purchase Order until the expiration of the warranty period set forth in the applicable Documentation for each Hardware Product, the Hardware will be substantially free of defects in materials and workmanship (“Hardware Warranty”).
3.2 Remedies. Customer’s sole and exclusive remedy and Celona’s (and its suppliers’ and licensors') sole and exclusive liability for a breach of the Hardware Warranty will be, in Celona’s sole discretion, to replace the non-conforming Hardware. Replacement may be made with a new or refurbished product or components. If the Hardware or a component within it is no longer available, then Celona may replace the Hardware unit with a similar product of similar function. Any Hardware unit that has been replaced under the Hardware Warranty will be covered by the terms of the Hardware Warranty for the longer of (a) 90 days from the date of the delivery, or (b) the remainder of the original Hardware Warranty period.
3.3 Returns. To request a return under the Hardware Warranty, Customer must notify Celona (or if the Products were purchased by Customer through a Partner, Customer may notify the Partner) within the Hardware Warranty period. To initiate a return directly to Celona, Customer must send a return request to Celona at email@example.com and clearly state details on where and when Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), Customer’s reason for returning the Hardware, and Customer’s name, mailing address, contact name, contact title, contact email address, and contact daytime phone number. If approved in Celona’s sole discretion, Celona will provide Customer with a Return Materials Authorization (“RMA”) and prepaid shipping label via email that must be included with Customer’s return shipment to Celona. Customer must return the Hardware unit(s) listed in the RMA with all included accessories with the RMA within the 14 days following the day on which Celona issued the RMA. Celona will replace the Hardware in its sole discretion. Hardware Products subject to the Limited Lifetime Warranty or the Premium Warranty (as described in the applicable Documentation) are eligible for advance replacement, in which case the replacement Hardware units will be shipped to Customer within one business day following issuance of the RMA.
4. CELONA OBLIGATIONS
4.1 General. Celona is responsible for providing the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.
4.2 Availability. Celona uses its best efforts to ensure that the Software it hosts as a cloud-based solution is available in accordance with the terms of the Service Level Agreement, which sets forth Customer’s remedies for any interruptions in the availability of the Software.
4.3 Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Celona will provide Support in order to resolve the issue or provide a suitable workaround. The fee for Support is included in the cost of the License. As part of Celona's delivery of Support and training and only for such purposes, Customer understands that Celona may access Customer's account. With regard to the Software, Celona will provide Customer such upgrades and Updates as Celona generally makes available for commercial distribution to other licensees during the License Term for no additional charge.
5. CUSTOMER OBLIGATIONS
5.1 Compliance. Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including the export laws and regulations of the United States or any other country. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of such export laws and regulations. If Customer operates in a regulated industry, Customer has obtained all necessary local and state licenses and/or permits necessary to operate its business and is in compliance (and will use its best efforts to remain in compliance) with all local, state, and (if applicable) federal regulations regarding the conduct of its business. Celona reserves the right to suspend use of any Products operating in violation of such laws, following written notice to Customer (which may take the form of an email).
5.2 Computing Environment. Customer is responsible for the maintenance and security of its own network and computing environment that it uses to access the Software.
6. TERM AND TERMINATION
6.1 Term. The term of this Agreement will commence on the Effective Date and will continue for so long as Customer maintains any active Licenses.
6.2 Termination for Cause. Either party may terminate this Agreement or any License Term for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3 Effect of Termination. If Customer terminates this Agreement or any License Term in accordance with Section 6.2, then Celona will refund Customer a pro rata portion of any unused prepaid fees allocable to the remaining License Term. The following provisions will survive any expiration or termination of the Agreement: Sections 1, 8 (which shall survive for one (1) year), 9, 10, 12, 13, and 14, and any other provisions that, by their nature, would reasonably be considered intended to survive.
7. FEES AND SHIPPING
7.1 Fees. If Customer purchases the Products directly from Celona, then Customer will pay the fees for the Products set forth on the applicable Purchase Order. Any terms included by Customer on a Purchase Order that conflict with the terms of this Agreement will not be binding on Celona. Following acceptance of the Purchase Order, and shipment of the Products, Celona will submit an invoice to Customer for the Products, and payment will be due 30 days from the date of the invoice (“Due Date”). If Customer's account is sixty (60) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Celona reserves the right to suspend Customer’s access to the Software without liability to Customer until such amounts are paid in full.
7.2 Shipping. Celona will ship all Hardware to the location specified on the Purchase Order FCA Celona’s shipping point (INCOTERMS 2020), at which time title and risk of loss will pass to Customer. If Customer purchases the Products from a Partner of Celona, then all payment and shipping terms will be as agreed between Customer and such Partner.
7.3 Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Celona (collectively, “Taxes”) with respect to the Products provided to Customer. Customer is solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse Celona for all Taxes paid or payable by, demanded from, or assessed upon Celona.
8.1 Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Celona’s Confidential Information includes the Products and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
8.2 Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
8.3 Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
9. DATA PROTECTION
9.1 Security. Celona secures the Software and Customer Data in accordance with industry-standard physical, technical, and administrative safeguards.
9.2 No Access. Except for the Customer Data, Celona does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, the Wireless Network(s), or users of Customer’s products or services.
10.1 Celona Property. Celona owns and retains all right, title, and interest in and to the Software, and all intellectual property embodied in the Hardware. Except for the limited license granted to Customer in Section 2.1, Celona does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Celona’s intellectual property rights in the Products. All suggestions or feedback provided by Customer (including by its employees, contractors or other agents) to Celona or its Partners with respect to the Products (together, “Feedback”) will be Celona’s property, deemed Confidential Information of Celona, and Customer hereby assigns all rights in and to such Feedback to Celona.
10.2 Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Celona, except for the limited license set forth in Section 2.2.
11.1 Celona will maintain in full force and effect during the term of this Agreement:
(a) Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $1 million per occurrence and $2 million general aggregate for bodily injury and property damage;
(b) Auto liability insurance covering hired vehicles, with coverage limits of not less than $1 million per occurrence for bodily injury and property damage;
(c) Worker’s compensation insurance as required by law in the state where the Services will be performed, including employer’s liability coverage for injury, disease and death, with coverage limits of not less than $1 million per occurrence and general aggregate;
(d) Umbrella liability insurance for limits of not less than $5 million per occurrence and in the aggregate; and
(e) Technology Errors & Omissions and Cyber-risk on claims-made form, for limits of not less than $2 million annual aggregate covering loss resulting from acts, errors or omissions in the rendering of the Products, or from data damage, destruction, or corruption, including unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Products. Coverage will be maintained for a period of no less than three years following termination of this Agreement.
11.2 Insurance carriers will be rated A-VII or better by A.M. Best Provider. Celona’s Commercial General Liability coverage will be considered primary without right of contribution of Customer’s insurance policies. In no event will the foregoing coverage limits limit Celona’s contractual liability for indemnification or any other liability of Celona under this Agreement.
12.1 Celona will indemnify, defend, and hold Customer, its affiliates, and their respective owners, directors, members, officers, and employees (collectively, “Customer Indemnitees”) harmless from and against any claim, action, demand, suit or proceeding (each, a “Claim”) made or brought by a third party against any of the Customer Indemnitees alleging that Customer’s use of the Products infringes or misappropriates any patent, trademark, copyright, or any other intellectual property of such third party. Celona will pay any damages finally awarded against any Customer Indemnitees by a court of competent jurisdiction as a result of any such Claim, or any final settlement of such Claim, so long as Customer (i) gives Celona prompt written notice of the Claim, (ii) gives Celona sole control of the defense and settlement of the Claim (provided that Celona may not settle any Claim without the Customer Indemnitee’s written consent, which will not be unreasonably withheld), and (iii) provides to Celona all reasonable assistance, at Celona’s request and expense. If Customer’s right to use the Products hereunder is, or in Celona’s opinion is likely to be, enjoined as the result of a Claim, then Celona may, at Celona’s sole option and expense: (i) procure for Customer the right to continue using the Products under the termsof this Agreement; or (ii) replace or modify the Products so as to be non-infringing and substantially equivalent in function to the claimedinfringing or enjoined Products; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s subscription to the Products and refund Customer a pro rata portion of any unused prepaid fees allocable to the remaining License Term. Celona will have noindemnification obligations under this Section 12.1 to the extent that a Claim is based on or arises from: (a) use of the Products in amanner other than as expressly permitted in this Agreement; (b) any alteration or modification of the Products except as expressly authorized by Celona; (c) the combination of the Products with any other software, product, or services (to the extent that the alleged infringement arises from such combination); or (d) where the Claim arises out of specifications provided by Customer. This Section 12.1 sets forth Celona’s sole and exclusive liability, and Customer’s exclusive remedies, for any Claim of infringement or misappropriation of intellectual property.
12.2 By Customer. Customer will indemnify, defend, and hold harmless Celona, its affiliates, and their respective owners, directors, members, officers, and employees (together, the “Celona Indemnitees”) from and against any Claim related to (a) Customer’s or a User’s engaging in a Prohibited Use, (b) Customer’s breach of its obligations in Section 5.1, and (c) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Celona Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Celona (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Celona’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.
13. LIMITATIONS OF LIABILITY
13.1 Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, CELONA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING UPDATES OR SUPPORT. WITHOUT LIMITING THE FOREGOING, CELONA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR TITLE. CELONA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
13.2 Limitation of Liability. EACH PARTY AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (BUT NOT INCLUDING RELATED TO THE SECURITY OF CUSTOMER DATA), AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY, NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
13.3 Liability Cap. EACH PARTY AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 (BUT NOT INCLUDING RELATED TO THE SECURITY OF CUSTOMER DATA), AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON,RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (OR A PARTNER ON ITS BEHALF) TO CELONA UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
This Agreement is the entire agreement between Customer and Celona and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by authorized personnel by both parties. Customer and Celona are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Celona. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in Santa Clara County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent either (i) by overnight courier or certified mail (receipt requested), in the case of Customer to Customer’s address on record in Celona’s account information and in the case of Celona, to the address listed above, or (ii) by electronic mail to Customer’s email address on record in Celona’s account information or to Celona at firstname.lastname@example.org. If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. Neither party shall be liable to the other for any delay or failure to perform which is due to causes beyond the reasonable control of such party. The party prevailing in any dispute under this Agreement shall be entitled to its reasonable costs and legal fees. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals.