netLiNK™ End User License Agreement Device & Service Agreement NetLiNK™ Device & Service Agreement (hereafter "Agreement"), between netLiNK, Inc., a TX corporation having its principal place of business at 4100 International Plaza, Ste. 420, Fort Worth TX 76109, (hereinafter "netLiNK") and Subscriber (User who agrees to this Device and Service Agreement by clicking the Acceptance Box upon first logging into the system).
In consideration of the mutual promises contained herein, and other good and valuable consideration, the parties hereby agree as follows
2. Fees and Payment. Subscriber shall pay netLiNK the purchase price ("Purchase Price") for the NetLiNK Devices which includes the first two years subscription for Notification Services (collectively, the "Fees") in the amount set forth in the Purchase Contract. The Purchase Price is due within 30 days of delivery to Subscriber of the NetLiNK Devices. Subsequent Annual Fees for Notification Services will be paid with in 30 days of the anniversary of the install of the product. netLiNK shall submit an invoice to Subscriber in a timely manner for all Fees. Fees not paid within terms will result in deactivation of the services and subscriber will be responsible for paying the reactivation fee. All Fees paid are nonrefundable and must be made in U.S. dollars. The Fees exclude all applicable sales, use, withholding and other taxes, and Subscriber will be responsible for payment of all taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees. Subscriber will make all payments of the Fees to netLiNK free and clear of, and without reduction for, any taxes, fees or duties. Any such taxes imposed on payments of the Fees to netLiNK will be Subscriber's sole responsibility; and Subscriber shall defend, indemnify and hold netLiNK harmless from any such taxes or claims relating to the payment, non-payment or underpayment of such taxes.
3. netLiNK Responsibilities. netLiNK shall provide Notification Services to Subscriber on a commercially reasonable efforts basis and netLiNK shall use commercially reasonable efforts to complete each Message Delivery. netLiNK maintains physical, electronic and administrative policies and procedures designed to restrict access to customer's personal information. These include programs and specifications for physical security, record retention for a period of one year and subsequent disposal; computer and communication security measures reflected in system design, password protection and data management practices and other measures to restrict access to the data NetLiNK held in physical and electronic forms. netLiNK will be exposed to customer data in the normal operation and maintenance of database and agrees to hold confidential all of Subscriber's data in its possession and not use that data without the consent of the Subscriber exercising the same degree of care that a reasonable and careful company would exercise with similar data of its own. From time to time, netLiNK shall make changes and improvements to the Notification Services that may result in short periods of service outage. netLiNK shall make reasonable efforts to notify Subscriber of such outages at least 24 hours prior to such outages. netLiNK will not be responsible for any natural disaster, acts or omissions of Carrier's or others that are beyond the control of netLiNK, which impairs netLiNK' provision of Notification Services.
4. Subscriber Responsibilities. Subscriber shall input its Message Delivery address information (i.e. phone numbers, pager numbers, and e-mail addresses) into the Website. Subscriber may, from time to time, change the Message Delivery address information. Subscriber is responsible for the accuracy of all Message Delivery address information. Subscriber shall implement reasonable security and environmental precautions to ensure the NetLiNK Devices and Subscriber's monitored equipment and systems are not tampered with. Subscriber is also responsible for: i) maintaining the NetLiNK Devices and Subscriber's monitored equipment/systems in good working order; ii) installing and maintaining antenna hardware and equipment sufficient to ensure necessary signal strength as indicated on the NetLiNK Device strength indicator, iii) operating its NetLiNK Devices, equipment and systems in a manner that does not disrupt or otherwise interfere with netLiNK' Notification Services system and iv) data archival on records older than one year. To assist with archival netLiNK must receive written notice 30 days prior to data expiration.
5. Term and Termination 5.1 Term. This Agreement shall have the initial term set forth in Purchase Contract, "On condition that fees have been paid in full, the term shall renew as set forth in Purchase Contract at the end of the Initial Term and thereafter, unless either party notifies the other party, in writing, at least 45 days prior to the end of the then current term of its intention not to renew this Agreement. The Annual Fee for any Renewal Term may be modified by netLiNK to reflect changes in the costs for telecommunication services that netLiNK purchases, provided that netLiNK notify Subscriber, in writing, of the change at least 45 days prior to the start of the Renewal Term in which the modified Annual Fee would apply. 5.2 Termination. A party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure the breach within 60 days after receiving written notice thereof. netLiNK may also terminate this Agreement, without liability to Subscriber, upon notice in the event of any of the following: i) Mobile Data Service coverage becomes unavailable; ii) lack or unavailability of other equipment or services needed by netLiNK to provide Notification Services; or iii) Subscriber fails to pay any portion of the Fees when due. netLiNK shall have no liability to Subscriber for terminating this Agreement in accordance with above. netLiNK reserves the right to disable any NetLiNK Device that is believed to be operating outside its expected behavior. 5.3 Effects of Termination . Upon termination or expiration of this Agreement for any reason, any amounts owed to netLiNK under this Agreement before such termination or expiration will be immediately due and payable, and all of netLiNK' obligations to provide Notification Services shall immediately cease. To the extent netLiNK terminates the Agreement pursuant to Sections 5.2(i) and 5.2(ii), netLiNK shall refund to Subscriber the pro-rated amount of the Annual Fee for that period after the termination date. 5.4 Survival. Sections 5.3 ("Effects of Termination"), 5.4 ("Survival"), 6 ("Warranty and Disclaimer"), 6.4 ("Liability Limitation"), 7 ("Indemnification") and 8 ("General") will survive termination or expiration of this Agreement for any reason.
6. Warranty and Disclaimer. 6.1 Service Warranty. netLiNK'S sole and exclusive warranty regarding the Notification Services is that such services provided directly by netLiNK shall perform in conformity with standard industry practices. netLiNK does not warrant the complete accuracy of any coverage maps provided which are intended only to be an approximation of the coverage provided by the Carrier's wireless network, that the Mobile Data Service will be uninterrupted or that its operation will be error-free. netLiNK'S sole obligation under this warranty is to promptly correct the Notification Services so that they reasonably conform to standard industry practices. If netLiNK is unable to so correct the Notification Services, then Subscriber or netLiNK may terminate this Agreement, immediately upon written notice to the other, and netLiNK'S sole liability shall be to refund Subscriber the pro-rated amount of the Annual Fee paid for that period after the termination date. 6.2 NetLiNK Device Warranty. 6.2.1 netLiNK’S sole and exclusive warranty regarding the NetLiNK Devices is that such Devices shall be free of defects in materials and workmanship at the time of shipment from netLiNK dock and for the initial Subscription Term of two years. netLiNK’S sole obligation under this warranty is to repair or replace the NetLiNK Device if such NetLiNK Device does not function properly due to any component which proves to be defective due to defective materials or workmanship of netLiNK; provided, however, that said malfunction was not caused by: (i) lightning or other natural forces; (ii) units not installed, operated, or maintained in accordance with instructions provided, applicable local codes, ordinances, or accepted trade practices; (iii) failures resulting from abuse, misuse, accident, or negligence; (iv) units repaired and/or modified without prior authorization from netLiNK; or (v)any other acts or omissions of Subscriber. 6.2.2 To obtain warranty service: the consumer shall assume all responsibility and expense for removal, reinstallation, and freight. Any item to be repaired or replaced under this warranty must be returned to netLiNK, or such place as designated by netLiNK. Contact customer service at (214-638-5465) for a Return Material Authorization number (RMA) on any product being returned for a warranty claim. 6.3 Disclaimer. netLiNK makes no representation that Notification Services or NetLiNK Devices shall eliminate loss to Subscriber's equipment or other property. THE EXPRESS WARRANTIES IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE NOTIFICATION SERVICES OR NetLiNK DEVICES, INCLUDING ANY IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. netLiNK DOES NOT WARRANT THAT SUBSCRIBER'S USE OF THE NOTIFICATION SERVICES OR NetLiNK DEVICES SHALL BE ERROR-FREE OR UNINTERRUPTED. SUBSCRIBER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 6. 6.4 Liability Limitation. 6.4.1 netLiNK’S LIABILITY. IN NO EVENT WILL netLiNK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGED PROPERTY, LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT AND USE OF THE NOTIFICATION SERVICES. netLiNK’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND NOTIFICATION SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE ANNUAL FEE MOST RECENTLY PAID TO netLiNK BY SUBSCRIBER. SUBSCRIBER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT netLiNK WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. 6.4.2 Third Party Liability Exclusion. Subscriber acknowledges that the Notification Services utilize MeshVista data portal technology furnished to netLiNK by Mesh Systems LLC as well as utilize cellular telephone service furnished to Mesh Systems LLC by private network carriers pursuant to agreements between such parties. Said agreements have certain terms, conditions and limitations regarding the provision of such services. SUBSCRIBER FURTHER ACKNOWLEDGES THAT MESH SYSTEMS LLC, OTHER CARRIERS, AND netLiNK DISCLAIM ALL LIABILITY OF ANY NATURE TO SUBSCRIBER, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF SUBSCRIBER'S USE OF MESHVISTA DATA PORTAL TECHNOLOGY AND NetLiNK DEVICE AND OTHER TELECOMMUNICATIONS SERVICES, AND SUBSCRIBER AGREES THAT IT SHALL HAVE NO CLAIMS, OF ANY KIND, AGAINST MESH SYSTEMS LLC, OTHER CARRIERS OR netLiNK WITH RESPECT THERETO.
7. Indemnification. Subscriber agrees to defend, indemnify and hold harmless netLiNK, Mesh Systems LLC, and other Carriers, and their owners, directors, officers, and employees, from and against any damages, liabilities, claims, costs and expenses (including reasonable attorney's fees) to the extent arising out of or resulting from the Notification Services or Subscriber's negligence or willful misconduct. If Subscriber shall, within thirty (30) days after notice, fail to accept defense, the party seeking indemnification shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle any claims on behalf of, for the account of, and at the risk of Subscriber. If the claims cannot by their nature be defended solely by one party, the other party shall make available all information and assistance that may reasonably be requested, regardless of any obligation to indemnify hereunder.
8. General. 8.1 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. 8.2 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail, to the other party at the address set forth beneath such party's signature, and will be effective upon receipt or three(3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party. 8.3 Governing Law and Venue. The laws of the State of Texas will govern this Agreement, without reference to its conflicts of law principles. 8.4 Dispute Resolution. Any action or proceeding arising from or relating to this Agreement shall be finally settled by arbitration. The parties agree that arbitration must be initiated within one (1) year after the claimed breach occurred and that the failure to initiate arbitration within the one-year period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail to all parties. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration instituted under this subsection shall take place in Becker County, Minnesota. 8.5 Remedies. The parties' rights and remedies under this Agreement are cumulative. 8.6 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 8.7 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. 8.8 Version 1.0 Entire Agreement. This Agreement is effective only upon receipt by netLiNK of completed and signed NetLiNK Service Activation form and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by Subscriber to netLiNK will have no effect. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed to be an original and all of which taken together shall be deemed one and the same instrument.