PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SPECTRUM EFFECT SOFTWARE OR  SERVICES.

These Terms of Service (hereinafter referred to as the “Terms” “Service Terms” or “Agreement”) apply to the use of certain software, technology and related services (collectively, the “Services”) provided by Spectrum Effect, Inc., a Washington corporation (“Spectrum Effect” “Company” or “Licensor”) to the person or entity (the “Customer” or “Licensee”)  identified in a valid and binding service or subscription agreement (a “Service Agreement”) and are an integral part of the agreement between Spectrum Effect and Customer. By ordering, purchasing or using the Services, Customer agrees to be bound by these Terms.  These Terms incorporate and include all additional terms, conditions and policies that are: (i) set forth in an addendum, schedule, exhibit or amendment to these Terms, (ii) set forth in an applicable Service Agreement, and (iii) set forth at https://spectrumeffect.com/legal/.

This Agreement supersedes all terms and conditions set forth in any documents issued by Customer, including purchase orders and specifications in prior agreements. For purposes of this Agreement, the term “Company” includes subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other third-party service providers that furnishes services or devices to you in connection with this agreement. Customer and Company are sometimes collectively referred to herein as the “Parties,” or individually as a “Party.”

Company reserves the right to modify, supplement, amend, revise or otherwise change any of these Terms (including, without limitation, anything incorporated by reference) at any time, but only on a prospective, not retroactive, basis. Company will provide Customer thirty (30) days advance notice through Customer’s invoice or by e-mail to the most recent email address associated with Customer’s account of any changes to these Terms that would have a materially adverse effect on Customer. Changes will become effective on the next business day following the 30-day notice period and, unless Customer has objected to any changes by delivering written notice to Company. By continuing to use the Services after revision(s) are in effect, you accept and agree to all such revisions.

1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 0:

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.  The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person.

“Authorized User” means each of the individuals authorized to use the Licensed Software pursuant to Section 2 and the other terms and conditions of this Subscription Agreement.

“Documentation” means any and all manuals, instructions and other documents and materials that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Licensed Software” means the version of Licensor’s Spectrum-NET™ software solution provided to Licensee pursuant to this Subscription Agreement. Spectrum-NET software performs automated ML-driven analysis of RF interference across RF bands and operates seamlessly across multi-vendor 5G NR, LTE and UMTS cells within the mobile networks. Spectrum-NET drives processes for resolving RF interference and improves network performance. Built on a container-based microservices architecture, Spectrum-NET is a web-based, cloud-ready, horizontally scalable solution with mapping, visualization, and report generation capabilities. 

“Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.  

“Maintenance Release” means any update, release, enhancement or other adaptation or modification of the Licensed Software, including any updated Documentation, that Licensor generally makes available free of charge to its licensees from time to time during the Term, which may contain, without limitation, error corrections, bug fixes, patches, workarounds or minor enhancements, but does not include any New Version or Major New Roadmap Features.

“Major New Roadmap Features” means the new features and functionality that will be added to the Licensed Software. Licensor periodically provides a plan for new Roadmap Features; the content, timimg and priority of the Roadmap Feature plan is subject to change at the sole discretion of Licensor. 

“New Version” means any new version of the Licensed Software that Licensor may from time to time during the Term introduce and market generally as a distinct licensed product at such prices and under such version numbers as may be designated by Licensor. 

“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third-party of any source code with which such software component is used or compiled.

“Permitted Use” means use of the Licensed Software in accordance with this Subscription Agreement by an Authorized User for the benefit of Licensee in the ordinary course of its internal business operations.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Purchase Order” or “PO” means the documents mutually agreed and signed by the Licensor and Licensee that contains a description of commercial terms connected to this Subscription Agreement and may contain additional terms and other messages unique to the transaction described therein, including without limitation pricing, invoicing and related services.

“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors and legal advisors.

“Software Releases” means any Maintenance Releases or New Versions provided by Licensor pursuant to its Software Release Policy.

“Specifications” means the technical specifications for the Licensed Software, as the same may be modified from time to time by Licensor and provided to Licensee. 

“Territory” means the geographic area of operation of Licensed Software by Licensee, which is deifned in the PO. 

“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or Specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. License.

1. 1. License Grant. Subject to the terms and conditions of this Subscription Agreement and conditioned on Licensee’s and its Authorized Users’ compliance therewith, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable and non-transferable, limited license to use the Licensed Software and Documentation solely for the Permitted Use in the Territory during the Term.

2. 2. Scope of Licensed Access and Use. Licensee may use one copy of Licensed Software operating on Licensee’s private or public cloud or Licensor’s hosted environment for use by Authorized Users.  Licensee may make one copy of the Licensed Software solely for testing, disaster recovery or archival purposes.  Any copy of the Licensed Software made by Licensee: (a) will remain the exclusive property of Licensor; (b) be subject to the terms and conditions of this Subscription Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.

2. 3. Open-Source Licenses. The Licensed Software includes Open-Source Components licensed under certain open source licenses as identified in the Documentation (each, an “Open-Source License“).  Any use of the Open-Source Components by Licensee shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).

3. Use Restrictions. Licensee is responsible to ensure that all activities conducted in connection with its usage of the Licensed Software are in full compliance with this Subscription Agreement.  Except as this Subscription Agreement expressly permits, and subject to Section 2.3 with respect to Open-Source Components, Licensee shall not, and shall not permit any other Person to: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software; (b) reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part; (c) bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation; (d) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation; or (e) use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law.

4. Delivery, Installation, Acceptance. Licensor shall deliver and install the Licensed Software in accordance with the Documentation.  Licensor will test whether the Licensed Software operates in accordance with the Specifications as set forth in the Documentation.  Licensee shall be deemed to have accepted the Licensed Software if: (a) the Acceptance Testing is determined by Licensor to be successful; or (b) Licensee commences production use of the Licensed Software.

5. Maintenance, Support. During the Term, and provided Licensee remains in compliance with its obligations under this Subscription Agreement, Licensor will provide Licensee with maintenance and technical support services as described in the Documentation.  For clarity, the Licensed Software will include all Software Releases.  All Software Releases, on being provided by Licensor to Licensee hereunder, are deemed Licensed Software subject to all applicable terms and conditions in this Subscription Agreement.

6. Confidentiality.

1. 1. Confidential Information. In connection with this Subscription Agreement each Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) Confidential Information.  Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, technology solutions and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”.  Without limiting the foregoing: (a) the Licensed Software and Documentation are the Confidential Information of Licensor; and (b) the financial terms and existence of this Subscription Agreement are the Confidential Information of each of the Parties.

6. 2. Exclusions and Exceptions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Subscription Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Subscription Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third-party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6. 3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for a period of no less than two (2) years following any termination or expiration of this Subscription Agreement shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Subscription Agreement; (b) not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Subscription Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.

Notwithstanding any other provisions of this Subscription Agreement, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

6. 4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

 

7. Fees; Payment; Taxes.  In consideration of the rights granted to Licensee under this Subscription Agreement, Licensee shall pay to Licensor the fees and charges specified in the PO and pursuant to the payment terms and conditions of the PO. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law.  All Fees and other amounts payable by Licensee under this Subscription Agreement are exclusive of taxes and similar assessments.  

8. Intellectual Property Rights.

1. 1. Intellectual Property Ownership. Licensee acknowledges and agrees that: (a) the Licensed Software and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not and will not have or acquire under or in connection with this Subscription Agreement any ownership interest in the Licensed Software or Documentation, or in any related Intellectual Property Rights; (b) Licensor is and will remain the sole and exclusive owner of all right, title and interest in and to the Licensed Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Licensee under this Subscription Agreement; and (c) Licensee hereby unconditionally and irrevocably assigns to Licensor, its entire right, title and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Licensed Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

8. 2. Use of Learned Information about Sources of Interference. Licensee grants Licensor a non-exclusive, non-transferable, royalty free, non-sublicensable (except as needed for the provision of the Licensed Software as set forth herein) worldwide right to use information learned about interference sources obtained through Licensee’s use of the Licensed Software (collectively, “Learned Information”).  All Learned Information will solely be used to improve the Licensed Software and generally provide better  services to Licensee and other users of the Licensed Software.  In each case, Learned Information does not include any Licensee Confidential Information.  No other rights or implied rights to the Licensee data or information are granted to Licensor other than as expressly set forth herein.

8. 3. No Implied Rights. Except for the limited rights and licenses expressly granted under this Subscription Agreement, nothing in this Subscription Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third-party any Intellectual Property Rights or other right, title, or interest in or to any of the Licensed Software or Documentation.

9. Term and Termination.

1. 1. Term. The initial term of this Subscription Agreement commences as of the Effective Date and will continue for the duration specified in the PO from such date unless terminated earlier pursuant to any of the Subscription Agreement’s express provisions (the “Initial Term“).  This Subscription Agreement will renew for additional successive periods as defined in subsequently accepted Purchase Orders unless earlier terminated pursuant to any of the Subscription Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term“).

9. 2. Termination. This Subscription Agreement may be terminated at any time: (a) by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Subscription Agreement, where such failure continues more than five (5) days after Licensor’s delivery of written notice thereof (“Payment Failure“); (b) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Subscription Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (c) by Licensor, effective immediately, if the Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. 

9. 3. Effect of Termination or Expiration. On the expiration or earlier termination of this Subscription Agreement: (a) all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee shall: and (b) all amounts payable by Licensee to Licensor of any kind under this Subscription Agreement are immediately payable and due no later than twenty (20) days after the effective date of the expiration.

9. 4. Surviving Terms. Any right, obligation or provision under this Subscription Agreement that, by its nature, should survive termination or expiration of this Subscription Agreement, will survive any expiration or termination of this Subscription Agreement.

10. Representations and Warranties.

1. 1. Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Subscription Agreement; and (c) when executed and delivered by both Parties, this Subscription Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

10. 2. Licensor Limited Warranty. Subject to the limitations and conditions set forth in Section 10.3 and Section 11.4, Licensor warrants to Licensee that for a period of ninety (90) days from the date of Acceptance of the Licensed Software (“Warranty Period“): (a) the Licensed Software will substantially conform in all material respects to the Specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Subscription Agreement; (b) no Software Release when installed in accordance with the Software Release Policy and this Subscription Agreement, will have a material adverse effect on the functionality of the Licensed Software; and (c) the Documentation will include the Specifications necessary to install, operate and use the Licensed Software as intended.

10. 3. Licensee Requirements. The limited warranties set forth in Section 11.2 apply only if Licensee: (a) notifies Licensor in writing of the warranty breach before the expiration of the Warranty Period; (b) has enabled Licensor to install and accept, if required, all of the Software Releases; and (c) as of the date of notification, is in compliance with all terms and conditions of this Subscription Agreement (including the payment of all license fees then due and owing).

10. 4. Exceptions. Notwithstanding any provisions to the contrary in this Subscription Agreement, the limited warranty set forth in Section 11.2 does not apply to problems arising out of or relating to: (a) Licensed Software that is modified, misused or damaged by Licensee or its Representatives; (b) any operation or use of, or other activity relating to, the Licensed Software other than as specified in the Documentation; (c) Licensee’s breach of any material provision of this Subscription Agreement; or (d) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).

10. 5. Remedial Efforts. If Licensor breaches, or is alleged to have breached, any of the warranties set forth in Section 10.2, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach: (a) amend, supplement or replace any incomplete or inaccurate Documentation; (b) repair the Licensed Software; (c) replace the Licensed Software with functionally equivalent software (which software will, on its replacement of the Licensed Software, constitute Licensed Software hereunder); and/or (d) terminate this Subscription Agreement and promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.

10. 6. Sole Remedy. If Licensor does not cure a warranty breach or terminate this Subscription Agreement as provided in Section 11.5 within a reasonable period of time after Licensor’s receipt of written notice of such breach, Licensee shall have the right to terminate this Subscription Agreement and Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.  THIS SECTION 11.6 SETS FORTH THE LICENSEE’S SOLE REMEDY AND THE LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY LICENSOR WARRANTY OF THE LICENSED SOFTWARE OR DOCUMENTATION SET FORTH IN THIS SUBSCRIPTION AGREEMENT.

10. 7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 11.2, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.”  LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  

11. Indemnification.

1. 1. Licensor Indemnification. Licensor shall indemnify, defend and hold harmless Licensee and Licensee’s officers, directors, employees, agents, permitted successors and permitted assigns (each, including Licensee, a “Licensee Indemnitee“) from and against any and all Losses incurred by the Licensee Indemnitee arising out of or relating to any Action by a third-party (other than an Affiliate of a Licensee Indemnitee) to the extent that such Losses arise from any allegation in such Action that the Licensed Software, or any use of the Licensed Software, in the Territory in accordance with this Subscription Agreement (including the Documentation) infringes any U.S. Intellectual Property Right.  The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: (a) incorporation by the Licensed Software of, or combination, operation or use of the Licensed Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation, unless otherwise expressly permitted by Licensor in writing; (b) modification of the Licensed Software other than: (i) by Licensor in connection with this Subscription Agreement; or (ii) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and Specifications; (c) failure to timely implement any Software Releases of the Licensed Software made available to Licensee by Licensor; (d) negligence, abuse, misapplication or misuse of the Licensed Software or Documentation by or on behalf of Licensee, Licensee’s Representatives or a third-party; (e) use of the Licensed Software or Documentation by or on behalf of Licensee that is outside the purpose, scope or manner of use authorized by this Subscription Agreement or in any manner contrary to Licensor’s instructions; (f) events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); or (g) Action or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 12.2.

11. 2. Licensee Indemnification. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, including Licensor, a “Licensor Indemnitee“) from and against any and all Losses incurred by the Licensor Indemnitee in connection with any Action by a third-party (other than an Affiliate of a Licensor Indemnitee) to the extent that such Losses arise out of or relate to any allegation: (a) of or relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant or obligation under this Subscription Agreement; (b) of or relating to gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Licensed Software or Documentation or otherwise in connection with this Subscription Agreement; or (c) of or relating to use of the Licensed Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Subscription Agreement or the Documentation, or in any manner contrary to Licensor’s instructions or applicable Laws.

11. 3. Mitigation. If the Licensed Software, or any part of the Licensed Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Licensed Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense: (a) obtain the right for Licensee to continue to use the Licensed Software materially as contemplated by this Subscription Agreement; (b) modify or replace the Licensed Software, in whole or in part, to seek to make the Licensed Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Licensed Software under this Subscription Agreement; or (c) if, after Licensor’s exercise of commercially reasonable efforts, none of the remedies set forth in the above Sections 12.3(a) or 12.3(b) is reasonably available to Licensor, terminate this Subscription Agreement, in its entirety or with respect to the affected part or feature of the Licensed Software, effective immediately on written notice to Licensee, in which event:

1. 1. 1. 1. Licensee shall cease all use of the Licensed Software and Documentation immediately on receipt of Licensee’s notice; and
         2. Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.

11. 4. Sole Remedy. THIS SECTION 12 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE LICENSED SOFTWARE AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY. 

12. Limitations of Liability.

1. 1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE, (d) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12. 2. CAP ON MONETARY LIABILITY. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS SUBSCRIPTION AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED $500,000.  THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

12. 3. Exceptions to Limitations of Liability. The limitations of liability in Section 13.2 do not apply to Licensor’s obligations under Section 12 (Indemnification) or liability for Licensor’s gross negligence or willful misconduct.

13. Export Regulation. Licensee shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly any Controlled Technology to any country, jurisdiction or Person to which the export, re-export or release of Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval). 

14. Force Majeure.

1. 1. No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Subscription Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (“Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, cyber-attack, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Subscription Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.  Either Party may terminate this Subscription Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

14. 2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15. Miscellaneous.

1. 1. Relationship of the Parties. The relationship between the Parties is that of independent contractors.  Nothing contained in this Subscription Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever, except as detailed herein.

15. 2. Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Subscription Agreement or, unless expressly permitted under this Subscription Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that Licensor may, without Licensee’s consent, include Licensee’s name and/or other indicia in its lists of Licensor’s current and/or, as the case may be, former customers of Licensor in promotional and marketing materials.

15. 3. Notices. Except as otherwise expressly set forth in this Subscription Agreement, any notice, request, consent, claim, demand, waiver or other communication under this Subscription Agreement will have legal effect only if in writing and addressed to a Party at such address as a Party may designate from time to time in accordance with this Section 15:

If to Licensor:	Spectrum Effect, Inc.  10510 Northup Way #130 Kirkland, WA 98033     Attention: Debby Toye, CFO Email: debby.toye@spectrumeffect.com

Notices sent in accordance with this Section 15.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3^rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

1. 4. Interpretation.  The Parties intend this Subscription Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.  

0. 5. Entire Agreement. This Subscription Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Subscription Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.  

0. 6. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Subscription Agreement without Licensor’s prior written consent, provided that Licensee shall have the right, without Licensor’s consent, to assign or otherwise transfer this Subscription Agreement in its entirety to any of its Affiliates, provided that all such rights, obligations and performance hereunder shall revert to Licensee automatically and immediately at such, if any, time as such affiliated Person ceases to be an Affiliate of Licensee, and provided further that Licensee shall remain responsible for all acts and omissions of such Affiliate in the performance of this Subscription Agreement.  Any purported assignment, delegation or transfer in violation of this Section 15.6 is void.  This Subscription Agreement is binding on and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

0. 7. Amendment and Modification; Waiver. No amendment to or modification of this Subscription Agreement is effective unless it is in writing, identified as an amendment to this Subscription Agreement and signed by an authorized representative of each Party.  No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.

0. 8. Severability. If any provision of this Subscription Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Subscription Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  On such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Subscription Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

0. 9. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of Washington, without giving effect to any choice or conflict of law provision, the United Nations Convention for Contracts for the International Sale of Goods.  Except for the right of either Party to apply to a court of competent jurisdiction for injunctive relief or other equitable relief, any controversy or claim arising out of or relating to this Agreement, other than as to ownership or title to Intellectual Property Rights or the Licensed Software or in Confidential Information or the right of Licensor to bring suit for any payments due hereunder, any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

0. 10. Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Subscription Agreement or the transactions contemplated hereby.

0. 11. Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 (Use Restrictions), Section 6 (Confidentiality), Section 8 (Intellectual Property Rights) or Section 12 (Indemnification) of this Subscription Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

0. 12. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Subscription Agreement, the prevailing Party shall be entitled to recover its actual attorneys and out-of-pocket expenses, and court costs from the non-prevailing Party.

0. 13. Counterparts. This Subscription Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  A signed copy of this Subscription Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Subscription Agreement.

(End of Terms of Service.)