Colony

Colony

 Colony Networks, Software as a Service Agreement

1.              PLATFORM SERVICES AND SUPPORT

1.1            Subject to the terms of this Agreement, Colony will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached outlined in Section 11. As part of the registration process, Customer will identify an administrative username and password for Customer’s Colony account.  Colony reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2            Subject to the terms hereof, Colony will provide Customer with reasonable technical support services in accordance with the terms set forth in Section 12.

2.              RESTRICTIONS AND RESPONSIBILITIES

2.1            Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Colony or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Colony hereby grants Customer a non-exclusive, non-transferable, non-sub licensable license to use such Software during the Term only in connection with the Services.

2.2            Further, Customer may not remove or export from Canada or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the Canadian Trade Commissioner Service or any Canadian or foreign agency or authority.  As defined in US FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the Canadian Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3            Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Colony’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless Colony against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Colony has no obligation to monitor Customer’s use of the Services, Colony may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4            Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3.            CONFIDENTIALITY & PROPRIETARY RIGHTS

3.1            Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Colony includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Colony to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2            Customer shall own all right, title and interest in and to the Customer Data. Colony shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3            Notwithstanding anything to the contrary, Colony shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Colony will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.      WARRANTY AND DISCLAIMER

Colony shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Colony or by third-party providers, or because of other causes beyond Colony’s reasonable control, but Colony shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Colony does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COLONY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

5.      INDEMNITY

Colony shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States or Canadian patent or any copyright or misappropriation of any trade secret, provided Colony is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Colony will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Colony, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Colony, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Colony to be infringing, Colony may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

6.      LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COLONY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COLONY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COLONY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COLONY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.      MISCELLANEOUS

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.  This Agreement is not assignable, transferable or sublicensable by Customer except with Colony’s prior written consent.  Colony may transfer and assign any of its rights and obligations under this Agreement without consent.  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 by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Colony in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the Province of British Columbia without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Colony to serve as a reference account upon request.

8.      FORCE MAJEURE

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party.  We both will use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice.  This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.

9.      SERVICE TOOLS

Colony may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your Colony service requests.  The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service.  Data collected by the tools (excluding production data) may also be used to assist in managing Colony’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.

If Colony provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that Colony specifies for such tools; however, if Colony does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement.  Any such tools are provided by Colony on an “as is” basis and Colony does not provide technical support or offer any warranties for such tools.  Your right to use such tools will terminate upon the earlier of Colony’s notice (which may be through posting on http://support.colonynetworks.com or such other URL designated by Colony), the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.

10.    THIRD PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES

The services may enable Customer to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Colony is not responsible for any third party Web sites or third party content provided on or through the services and Customer bears all risks associated with the access and use of such Web sites and third party content, products and services.

11.    Service Level Agreement

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance.  If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Colony’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Colony’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Colony will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as Customer (with notice to Colony) recognizes that downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, Customer must notify Colony in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  Colony will only apply a credit to the month in which the incident occurred.  Colony’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Colony to provide adequate service levels under this Agreement.

12.    Support Terms

Colony will provide Technical Support to Customer as it relates to the use of the Cloud Hosted Services via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of National Holidays (“Support Hours”).

Customer may initiate a helpdesk ticket during Support Hours by calling +1-888-526-5669 or any time by emailing support@colonynetworks.com.

Colony will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

Unless explicitly stated in a contractual service agreement, Colony provides no support to end-users of Wi-Fi systems or supports any physical infrastructure, device or system associated with making Wi-Fi services available to end-users.  Colony’s support is limited to supporting those services provided by Colony and Colony reserves the right to charge for support on a time and material basis for anything that Colony deems is “not in scope”.   The customer will be advised in advance of incurring any time and materials charge.

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