ROUTE1 MOBINET SERVICES SUBSCRIPTION

ROUTE1 MOBINET SERVICES SUBSCRIPTION AGREEMENT (MSSA)
IMPORTANT-READ CAREFULLY: This Route1 MobiNET Services Subscription Agreement ("Agreement") is a
legal agreement dated and effective as of the date of the Purchase Order ("Effective Date") made by and between
Route1 Inc. ("Route1") and you, as either an individual or a single entity, ("Customer"). "Purchase Order" means a
purchase order or series of purchase orders to be issued to Route1 by the Customer in connection with the services
described in this Agreement.
This Agreement sets out the terms and conditions under which Route1 will provide to Customer certain subscription
based Services and other Consulting Services set forth in Statements of Work that may be agreed to from time to
time.
In consideration of the mutual covenants herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.
DEFINITIONS
Except as otherwise defined herein, capitalized terms have the meanings set forth in Schedule 1, attached hereto.
2.
SCOPE
2.1
The Services, Support and Maintenance and Consulting Services are subject to the terms and conditions of
this Agreement. This Agreement, each Schedule and each Statement of Work, and any amendments thereto are
incorporated herein by reference and form part of this Agreement.
2.2
The Services are offered solely in respect of the Software. All Software is governed by and subject to the
terms and conditions contained in the applicable End User License Agreement.
2.3
If there is any conflict between the terms of a Schedule addendum or a Statement of Work and this
Agreement, the terms of this Agreement shall apply, unless such Schedule addendum or Statement of Work
expressly modifies such terms for the purpose of such Services, Support and Maintenance or Consulting Services.
2.4
This Agreement does not include or extend, under any circumstances regardless of cause, to any
application, software, hardware, Appliance or device employed to access the MobiNET platform and utilize
Services, irrespective of whether such application, software, hardware, Appliance or device was provided, sold,
licensed or bundled with the Services by Route1. The scope of this Agreement does not include or extend, under any
circumstances regardless of cause, to any portion of the public Internet.
3.
SERVICE LEVEL COMMITMENTS
3.1
Route1 shall use commercially reasonable efforts to achieve those service level commitments as set forth in
Schedule 3 ("Service Level Commitments").
3.2
Periodically, the terms of Schedule 3 may change in accordance with market conditions, and as a result of
increased ISP (Internet Service Provider) performance expectations, to allow for greater efficiency in service with a
goal of increasing the quality of service. The current version of the Service Level Commitments shall be made
available in electronic or paper format on demand to any Route1 customer. Customer manifests its intent to accept
the revised Service Level Commitments if it continues to use any of the Services after such revised terms have been
posted or sent to Customer. Route1 reserves the right to modify or discontinue any Product for any or no reason
with or without notice to Customer. Route 1 shall not be liable to Customer or any third party should Route1
exercise its right to modify or discontinue a Product or revise the terms of the Service Level Commitments.
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5.
COMMERCIAL TERMS
5.1
Invoicing and Payment.
5.1.1
Unless specifically provided otherwise herein, all fees are to be pre-paid, and are payable in accordance
with the terms of the invoice issued by Route1; provided however, if no invoice is generated then the terms relating
to payment of fees as set forth in Schedule 2 shall be applicable.
5.1.2
The parties acknowledge and agree that time is of the essence in relation to all payments due hereunder; and
for greater certainly, the parties acknowledge and agree that should payments not be made when due, Route1 may, at
its sole option, either:
(a)
terminate this Agreement and any End User License Agreement to which the Services relate immediately
and without further notice; or,
(b)
suspend the Services immediately and without further notice until the fees due hereunder are paid in full.
The Services shall be reinstated within 5 business days of confirmation of receipt by Route1 of such payment. The
Customer acknowledges that should Route1 choose to suspend the Services pursuant to this section 5.1.2(b), during
the suspension period, Customer continues to remain liable for all payment obligations under the terms of this
Agreement, which would otherwise arise under this Agreement but for the suspension (for greater certainly, as if the
Services were not suspended) and regardless of whether the Service is ultimately resumed.
5.1.3
In the event Customer provides payments due hereunder to a party other than Route1 (for instance, a third
party reseller), Route1 is not responsible for guaranteeing that any such payments are transmitted to Route1 in a
timely fashion. In the event a payment made to a third party is not transmitted to Route1 (or is late in so
transmitting), Route1 may still exercise its rights to charge interest and to terminate this Agreement and any EndUser License Agreement to which the Services relate or suspend the Service as per Section 5.1.2.
5.1.4
The fees for the Services and any Support and Maintenance provided for hereunder ("Fees") will be as
expressly set forth in Schedule 2 (such year, or period of time set forth in the Schedule 2, and each such subsequent
period of time for which Services and any Support and Maintenance are renewed and paid for, shall be referred to as
the "Services Renewal Period"). Unless otherwise instructed in writing by the Customer, Route1 shall charge
Customer Fees using the same method of payment previously used. For example, if the Services were paid
previously by credit card, Route1 will automatically charge that same credit card on the renewal.
5.2
Taxes.
Fees do not include applicable taxes, customs fees or import duties. Customer shall pay such taxes, customs fees or
duties either directly or when invoiced by Route1, or shall supply appropriate tax exemption certificates in a form
satisfactory to Route1.
6.
OWNERSHIP OF SERVICES
THE PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED USING INTELLECTUAL
PROPERTY (INCLUDING TRADE SECRETS) OWNED BY ROUTE1 OR ROUTE1’S LICENSORS. ALL
RIGHTS, TITLE AND INTEREST IN AND TO THE ROUTE1 PRODUCTS AND SERVICES ARE RESERVED
BY ROUTE1.
7.
NON-SOLICITATION
During the Term of this Agreement and for a period of two (2) years thereafter, Customer shall not hire, employ,
retain or solicit any person who is an employee, officer, director or exclusive independent contractor of Route1. The
Parties acknowledge that in view of the recruitment difficulties, costs of training staff in the computer industry and
the highly sensitive nature of intellectual property rights of both Parties, this restriction is reasonable.
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8.
LIMITED WARRANTY
8.1
ROUTE1 WILL PROVIDE THE SERVICES IN CONFORMANCE WITH THE SPECIFICATIONS SET
FORTH IN THIS AGREEMENT, INCLUDING THE SERVICE LEVEL COMMITMENTS. CUSTOMER
AGREES THAT ROUTE1 HAS NO CONTROL OF AVAILABILITY OF SERVICES ON A CONTINUOUS OR
UNINTERRUPTED BASIS. CUSTOMER AGREES THAT FROM TIME TO TIME THE SERVICES MAY BE
INACCESSIBLE OR INOPERABLE FOR SCHEDULED MAINTENANCE, EMERGENCY MAINTENANCE,
OR FOR CAUSES BEYOND ROUTE1’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION
THE CIRCUMSTANCES OF SECTION 20.11. ROUTE1 DOES NOT GUARANTEE THE INTEGRITY OF
DATA STORED OR TRANSMITTED VIA CUSTOMER’S SYSTEM/HARDWARE OR VIA THE INTERNET.
8.2
THE LIMITED WARRANTY IN SECTION 8.1 ABOVE IS THE ONLY WARRANTY MADE TO
CUSTOMER IN RESPECT OF THE SERVICES AND IS PROVIDED IN LIEU OF ANY OTHER
WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, OR SIMILAR OBLIGATIONS OF
ANY KIND, WHETHER EXPRESS, IMPLIED OR CONDITIONAL. EXCEPT FOR THE LIMITED
WARRANTY SET FORTH IN SECTION 8.1 ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, ROUTE1 AND ITS LICENSORS AND SUPPLIERS PROVIDE THE SERVICES AS IS
AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES AND CONDITIONS, DUTIES OR CONDITIONS RELATING TO PERFORMANCE
(WHETHER ARISING OUT OF THE CARRIERS OR THE INTERNET OR OTHERWISE), OF
MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR
AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF
WORKMANLIKE EFFORT AND OF LACK OF NEGLIGENCE, AS SUCH RELATE TO THE PROVISION OF
SERVICES OR FAILURE TO PROVIDE SUPPORT AND MAINTENANCE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY ROUTE1, ITS EMPLOYEES, RESELLERS OR AGENTS SHALL
INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW OR ADDITIONAL
WARRANTIES.
9.
HIGH RISK ACTIVITIES.
Customer must not use the Services with any application or situation where any failure of the Services could lead
directly to death, personal injury, or severe physical or environmental damage. Examples include using the Services
for controlling the operation of: (i) equipment in any nuclear facilities; (ii) aircraft navigation, communications or
flight control systems; (iii) air traffic control systems; (iv) mass transit systems; or (v) medical equipment (but only
in equipment with an FDA classification of 2 or 3, or an equivalent classification). By virtue of the complex nature
of the Services and its potential uses, it is possible that latent bugs, inoperable features, incompatibilities or errors
may affect the Services. Route1 advises that it makes no representations or warranties that the Services or any
Software is fault tolerant or is designed or intended for use in hazardous environments or mission critical
applications requiring fail safe performance, including without limitation, in the operation of nuclear facilities,
aircraft navigation or communication systems, air traffic control, direct life support machines, hazardous materials
storage and transmittal systems, waste treatment applications or any other application in which the failure of the
Services could lead directly to death, personal injury, or severe physical or property damage or exposure to material
financial loss (collectively, "High Risk Activities"). Route1 expressly disclaims any express or implied warranty or
condition of fitness for High Risk Activities. Customer agrees that use of the Services in High Risk Activities is at
Customer’s own risk and that Customer has been advised to obtain suitable perils insurance against risk in an
amount commensurate with Customer’s risk of loss. Customer hereby indemnifies and holds Route1 and its
licensors and suppliers harmless from liability for such use and the results of use.
10.
INDEMNITIES
10.1
The Customer shall defend, indemnify and hold Route1, its successors and assigns, and their respective
directors, officers, employees and agents (collectively, "Indemnitees") harmless from and against all loss, liability
or damages of any type and expense, including reasonable legal fees, that any of the Indemnitees may incur arising
from any and all claims any third party, including end users and/or distributors, in connection with the use of the
Products and Services (and related equipment) by the Customer or any third party or in connection with the
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Customer's failure to comply with its obligations under this Agreement, whether the failure is attributable to the
Customer or to some other person using the Customer's account with or without permission of the Customer.
10.2
The Customer shall indemnify the Indemnitees against any claim by a third party for alleged infringement
of any copyright, trademark or any other intellectual property rights which arises as a result of the storage or
processing of any of the Customer's programs or data on or through the Services or the Internet.
10.3
The indemnities contained herein shall survive termination of this Agreement for the maximum time period
permitted by law.
11.
LIMITATION OF LIABILITY.
11.1
Under no circumstances will Route1 or its successors and assigns, be liable to the Customer for any
incidental, special or consequential damages, expenses, costs, liability, loss or damage whatsoever, whether arising
in negligence, tort, statute, equity, contract, common law or any other cause of action or legal theory. For greater
certainty, Customer agrees that Route1 and its successors and assigns shall not be liable for any lost profits,
anticipated revenue, loss of data, loss of use of any information system, lost business revenue, failure to realize
expected savings or any other commercial or economic loss of any kind whatsoever arising out of or in connection
with this Agreement or the provision of the Services, even if Route1 has been advised of the possibility of such loss.
11.2
Route1 is not liable for protection or privacy of electronic mail or other information transferred through any
other network provider its Customers may utilize. Route1 assumes no liability arising from the use of the Services
furnished by Route1 in combination with services, products or equipment provided by Customer or any third parties.
11.3
Route1 shall have no liability relating to the use of Services outside of Canada, United States, or the
European Union.
11.4
The Customer shall have sole responsibility for the deployment of its programs and data. Route1, its
directors, employees, sponsors and agents shall not be responsible for any fault or error in the Customer's programs
or any programs accessed through the Services or the Internet.
11.5
Route1 shall not have any liability to Customer with respect to any third party action or claim of
infringement, violation or misappropriation of any intellectual property right, including without limitation, patent,
copyright or trade secret.
11.6
Route1 shall have no liability and will not be responsible for network performance on parts of the Internet
Route1 does not control and/or manage, including the Customer's own internal network, internet connection, or ISP
network.
11.7
This Section shall apply even in the event of a breach of condition, a breach of an essential or fundamental
term or a fundamental breach of this Agreement.
THE CUSTOMER AGREES, ACKNOWLEDGES AND CONFIRMS THAT ROUTE1'S LIABILITY ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROVISION OF THE SERVICES, AND
THE CUSTOMER'S EXCLUSIVE REMEDY, SHALL BE LIMITED TO THE FEES PAID BY THE CUSTOMER
IN THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM AND THAT THIS LIMITATION IS FAIR
AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT
ROUTE1 WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE CUSTOMER'S
AGREEMENT TO LIMIT ROUTE1’S LIABILITY IN THE MANNER AND THE EXTENT PROVIDED FOR
HEREIN.
12.
CONFIDENTIALITY
Customer agrees with Route1 that: (a) the Services consist of and arise out of intellectual property and confidential
information of Route1 (and/or its third party licensors and suppliers) ("Confidential Information"), which is not
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generally known other than by Route1, and which Customer may obtain knowledge of through, or as a result of, the
relationship established hereunder with Route1. Without limiting the generality of the foregoing, Confidential
Information also includes, but is not limited to, the following types of information, and other information of a
similar nature (whether or not reduced to writing or still in development): service models, service structures,
designs, concepts, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code,
documentation, diagrams, flow charts, research, development, methodology, processes, procedures, know-how, new
product or new technology information, strategies and development plans (including prospective trade names or
trademarks); (b) such Confidential Information has been developed and obtained by Route1 by the investment of
significant time, effort and expense, and provides Route1 with a significant competitive advantage in its business;
(c) Customer agrees that it shall not make use of the Confidential Information for its own benefit or for the benefit
of any person or entity other than Route1, except for the purposes of exercising Customer’s express rights granted
under this Agreement; and (d) Customer agrees to hold in confidence, and not to disclose or reveal to any person or
entity, the Confidential Information concerning other than to such persons as Route1 shall have specifically agreed
in writing to permit Customer to so disclose.
For purposes of this Agreement, a disclosure of Confidential Information will not render the Confidential
Information "generally known" when the: (i) disclosure is enjoined by Route1; (ii) disclosure is the subject of a
written settlement agreement between Route1 and a third party resolving a dispute between owner of the
Confidential Information and such third party as to the alleged wrongful disclosure of the Confidential Information,
provided that such information remains confidential pursuant to the terms of the settlement; or (iii) disclosing party
is held liable to owner of the Confidential Information for damages in an action alleging wrongful disclosure or
misappropriation of the Confidential Information.
Confidential Information shall remain the exclusive property of Route1. Customer has an obligation to prevent the
Route1’s Confidential Information in its possession or control from being misappropriated, or wrongfully
communicated by any employee, consultant or other person under the obliged Party’s control. If Customer is
required by a court or government authority to disclose Confidential Information, Customer will provide Route1
with prompt notice, including the circumstances of such requirement, so that Route1 may seek an appropriate
protective order, and will reasonably cooperate with the Route1 in an action by Route1 to obtain an appropriate
protective order. Upon termination of this Agreement, Customer shall promptly return or destroy Route1’s
Confidential Information, provided however, that Customer acknowledges its obligations of confidentiality owing to
Route1 survive any termination of this Agreement.
13.
UNSOLICITED IDEAS
CUSTOMER IS ADVISED NOT TO SEND TO ROUTE1 ANY UNSOLICITED IDEAS OR MATERIALS
RELATED TO THE SERVICES OR ROUTE1’ BUSINESS, INCLUDING IDEAS FOR NEW ADVERTISING
CAMPAIGNS, NEW PROMOTIONS, NEW PRODUCTS OR TECHNOLOGIES, PROCESSES, MATERIALS,
MARKETING PLANS OR NEW PRODUCT NAMES. IF, DESPITE THIS REQUEST THAT IDEAS OR
MATERIALS NOT BE SENT, CUSTOMER STILL SENDS IDEAS OR MATERIALS TO ROUTE1, ROUTE1
MAKES NO ASSURANCES THAT THE IDEAS OR MATERIALS WILL BE TREATED AS CONFIDENTIAL
OR PROPRIETARY. If Customer sends ideas or materials to Route1, or any other person from whom Customer
obtained the Software and/or the documentation relating to the Services and/or the Software or Documentation,
Route1 shall have the absolute right to incorporate all such ideas and/or materials accepted by Route1 into its
Services and its business (including, without limitation, the Software and Documentation) for all purposes, without
any payment or other compensation to Customer. All right, title and interest to any submitted ideas or materials
relating to the Services, Software and/or Documentation, whether accepted or not, are hereby transferred and
assigned to, and moral rights waived in favour of, Route1 at no cost to Route1 and Customer covenants to execute
and take all other such reasonable actions as are necessary to give effect to the aforementioned assignment and
waiver. Customer covenants to execute in favour of Route1 and to take all other such actions as are reasonably
necessary to give effect to the intellectual property rights, assignments and waiver as contemplated in this
Agreement.
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14.
SUPPORT AND MAINTENANCE
Provided the Customer is compliant with the terms of this Agreement, including without limitation payment
obligations relating to Fees, the Customer shall be entitled to those support and maintenance services terms set forth
on Schedule 4 ("Support and Maintenance").
15.
AUDIT.
During the Term of this Agreement and for a period of two (2) years thereafter, Route1 may, at any time during
Customer’s normal business hours and upon reasonable advance notice of not less than five (5) days, conduct an
audit at Customer’s premises to determine compliance with the terms of this Agreement Customer agrees to
reasonably assist Route1 in the conduct of such audit and agree to grant Route1, or a party contracted by Route1 to
conduct such audit, reasonable access to Customer’s premises and computer equipment for that purpose. In the event
that such audit reveals any use of the Services, Consulting Services, Software or Products by Customer other than in
material compliance with this Agreement, Customer shall reimburse Route1 for all reasonable costs and expenses
related to such audit in addition to any additional license fees and maintenance fees owed to Route1 as a result of
such non-compliance.
16.
AUTOMATIC INTERNET-BASED CAPABILITIES.
The Software may contain features that enables the Software to connect via the Internet to Route1 computer systems
automatically, without separate notice to Customer. Route1 may use this connection for purposes of providing to
Customer updates, upgrades or bug fixes, to modify or reconfigure any Product or for purposes of terminating
Customer’s ability to use the Software pursuant to the termination rights set forth in Section 17, or should
Customer’s subscription to Services which relate to the Software, fail to be renewed, or for purposes of Route1
suspending or restoring Services in accordance with the terms of this Agreement, or for Route1 to audit the Service
usage. Customer consents to the operation of these features within the Software for the purposes set forth herein
without further notice.
17.
TERM AND TERMINATION
17.1
Term.
Unless terminated earlier pursuant to this Section, the term of this Agreement commences on the Effective Date and
shall continue unless otherwise terminated in accordance with the terms contained in this Agreement (the "Term").
17.2
Termination for Cause.
This Agreement may be terminated immediately by either Party if: (a) the other Party becomes insolvent, files a
petition in bankruptcy, seeks relief from creditors or becomes subject to a petition in bankruptcy if such proceeding
is not dismissed within thirty (30) days of commencement; or (b) the other Party breaches any material obligation
under this Agreement and such breach has continued uncured for a period of thirty (30) days after receiving written
notice of the breach.
17.3
Termination by Route1.
This Agreement may be terminated by Route1 immediately, if (a) Customer breaches any of Route1’s intellectual
property rights or Customer’s obligations relating to Route1’s Confidential Information; (b) Customer breaches any
term of an End User License Agreement; (c) Customer fails to promptly pay when due any Fees or other payments
required under this Agreement; or (d) If Customer probes, scans, snoops or hacks or attempts to hack into Route1’s
systems or Products, in a manner that has not been previously authorized in writing by Route1.
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17.4
Customer Obligations on Termination.
If this Agreement is terminated for any reason, Customer will (a) discontinue use of the Services; (b) promptly
return to Route1 all Route1 materials; and (c) pay all outstanding invoices or amounts owing to Route1 which will
become immediately due and payable on notice of termination.
18.
PRIVACY AND DATA PROTECTION
Customer represents and warrants that any personal information, or other data subject to Privacy Law (as defined
below) (collectively "Personal Information"), which may be shared with or otherwise disclosed to Route1 as a
result of this Agreement is being done so in compliance with all applicable laws, regulations and industry standards
relating to the protection of personal information and personally identifying data (collectively, "Privacy Laws").
Customer covenants to inform Route1 immediately in the event there is reasonable grounds to believe that any
Personal Information shared with or otherwise disclosed to Route1 is or may become subject to an investigation for
the possible breach of Privacy Laws, and Customer shall indemnify and hold Route1 harmless from any claims,
damages, expenses or costs and liabilities resulting from Customer’s investigation into and breach of Privacy Laws.
Customer acknowledges that Personal Information may be shared with Route1’s affiliates and related parties and
third party service providers for purposes of fulfilling Route1’s obligations under this Agreement. Customer further
acknowledges that Route1 may transmit and store data in jurisdictions other than Customers and that, in such event,
the Privacy Laws applicable to such Personal Information may be different than those in Customer’s jurisdiction.
19.
SECURITY CERTIFICATE POLICY
As part of the Services, the Software, during registration, activation, enrolment, or in the normal course of operation,
may issue digital certificates to Customer and/or employees of Customer that conforms to Route1’s MobiNET
platform’s Certificate Policy ("Certificate Policy"). The Certificate Policy, the form of which can be accessed and
read at www.route1.com/legal/pki/cp.php governs the issuance of digital certificates under Route1's jurisdiction.
Customer represents, warrants and covenants to, at all times during the term of this Agreement, adhere to the
requirements and principles set forth in this paragraph and to ensure that Customer’s employees to whom a private
key is issued adhere to the requirements and principles set forth in this paragraph. Customer is required to notify
Route1 in writing immediately after a compromise of the confidentiality or integrity of the private key
corresponding to the certificate is suspected. Furthermore, Customer is required to ensure that the digital certificate
has been revoked immediately after the compromise is suspected by notifying Route1 in writing or by utilizing the
tools provided for such purpose, such as the MobiNET Administration and Provisioning system (MAP). Failing to
do so, releases Route1 of any and all responsibilities and obligations with regards to the security elements of the
Software and any and all protections afforded to Customer or individuals by the private key and corresponding
certificate and/or by the Software. Without limitation, sharing, transferring or otherwise disclosing the private key
to any party that is not the intended and legitimate digital certificate holder, is considered a compromise of the
private key and a contravention of the terms of this Agreement.
20.
GENERAL
20.1
Governing Law. The construction, validity and performance of this Agreement will be governed by the
laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to, or application
of, choice of law rules or principles. The Parties agree to attorn to the jurisdiction of the courts of the Province of
Ontario for the conduct of any legal proceedings under, or related to, this Agreement.
20.2
Sale of Goods Act. This Agreement shall not be governed by and the Parties expressly disclaim the
application of the provisions of the International Sale of Goods Act (Ontario) and the United Nations Convention on
Contracts for the International Sale of Goods, or any similar laws and regulations, including the Uniform Computer
Information Transactions Act, regardless of adoption by any jurisdiction.
20.3
Remedies. In the event that the acquisition of Services under this Agreement is not considered a consumer
transaction, Customer agrees not to bring or participate in any class action lawsuit against Route1 or any of its
employees or affiliates. Customer agrees that it will not bring a claim under this Agreement more than two years
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after the termination or expiration of this Agreement. No remedy made available to Route1 by any of the provisions
of this EULA is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to every other remedy available at law or in equity.
20.4
Critical Infrastructure Information Act. The Services and other Products provided by Route1 may be
subject to the Critical Infrastructure Information Act of 2002 (United States), and as a result, any information on the
Software and/or Services or other Products may be subject to obligations and restrictions relating to disclosure of
such information.
20.5
Assignment. No assignment or transfer of this Agreement by Customer (by operation of law, as a result of
a change of control or otherwise) may be made without the prior written consent of Route1 and any assignment or
transfer without such consent shall be null and void.
20.6
Notices. Any notices provided for under this Agreement shall be deemed received when delivered in
person, on the first business day following electronic transmission by facsimile or five (5) business days after being
mailed by registered mail.
20.7
Public Notices. Customer must not disclose, publish, communicate or disseminate, in any fashion, any
defects, faults, outages, or other performance markers or performance related results or related matters, relating to
the Software or any services provided by Route1, without Route1’s prior written consent. Customer may not use
Route1’s name, logo, trademarks, marks, product name or descriptions, or service name or description, in any
publicity, publication (regardless of medium), announcement, website, marketing or press release or make use of
Customer’s association with Route1, without Route1’s written consent. Route1 shall have the right to publish the
identification of Customer as a user of the Products and Services. You agree that Route1 may use any logo and/or
name associated with Customer on Route1's web site and other marketing materials in order to identify Customer as
Route1's customer.
20.8
Entire Agreement. This Agreement, including all SOWs that may be attached from time to time,
constitutes the entire agreement between the Parties with respect to the subject matter set out herein, and replaces
any prior understandings or agreements, whether written or oral, regarding such subject matter. No purchase order
or other ordering shall add to or vary the terms of this Agreement. Each Party acknowledges that it and its legal
counsel have reviewed and participated in settling the terms of this Agreement, and the Parties hereby agree that any
rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be
applicable in the interpretation of this Agreement.
20.9
Amendments. Subject to the terms contained herein, any amendment or modification of any provision of
this Agreement must be in writing, dated and signed by a duly authorized representative of each Party hereto.
Notwithstanding the foregoing, or anything provided for herein to the contrary, Route1 reserves the right to modify
or change the terms of this Agreement, from time to time, on notice to Customer, and such amendments would take
effect as follows: (i) if notice of such amendments is provided to the Customer no less than ninety (90) days prior to
the end of the current Services Renewal Period ("Current Renewal Period"), the amendments would take effect
upon the commencement of the Service Renewal Period immediately following the Current Renewal Period (the
"Proximate Renewal Period"); or (ii) if notice of such amendments is provided to the Customer less than ninety
(90) days prior to the end of the Current Renewal Period, the amendments shall take effect upon the commencement
of Service Renewal Period immediately following the Proximate Renewal Period. If Route1 amends the terms of
this Agreement pursuant to the terms of this Section 20.9, Customer may choose not to renew the Services at the end
of the Current Renewal Period, if notice was provided under (i) in this Section 20.9, or at the end of the Proximate
Renewal Period, if notice was provided under (ii) in this Section 20.9. If Customer chooses not to renew the
Services pursuant to the terms of this Section 20.9, Customer must give Route1 notice of such decision of no less
than sixty (60) days prior to the end of the Current Renewal Period or Proximate Renewal Period, as applicable. If
Customer does not provide to Route1 such notification, the Services will be renewed upon the amended terms and
conditions as provided by Route1 in accordance with the terms of this Section 20.9.
20.10 Successors and Assigns. All successors, receivers, managers, trustees and permitted assigns of the Parties
will be bound by these rights and liabilities set out in this Agreement.
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20.11 Severability. If any provision of this Agreement is declared invalid or unenforceable by a court of
competent jurisdiction, that provision shall be deemed to be severed from the Agreement, and the remaining
provisions shall not be affected.
20.12 Force Majeure. Neither Party shall be liable for any failure or delay in its performance under this
Agreement due to causes of force majeure, including without limitation, fires, floods, storms, earthquakes, civil
disturbances, or labour matters, provided that Customer shall continue to be obligated to pay any fees that have
accrued up until the event of force majeure.
20.13 No Waiver. No failure on the part of either Party to this Agreement to exercise, and no delay in exercising
any right, power or single or partial exercise of any right, power or remedy by either Party will preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
20.14 Independent Parties. Route1 and Customer are separate entities. No other legal relationship is intended or
implied. Except as expressly specified in this Agreement, neither Party will be responsible for acts of the other Party
or its agents or employees and neither Party will assume or create any obligation in the name of or on behalf of the
other Party.
20.15 Survival. Sections 5, 6, 7, 17, 9, 11, 12, 13, 14 and Schedule 1, will survive the expiry or termination of
this Agreement.
20.16 Language. The Parties hereby express their wish that this contract and all related documents be drawn up
in English. Les Parties expriment par les présentes leur volonté que cette entente soit rédigée en langue anglaise.
NOTE: THE USE OF ANY SOFTWARE OR DOCUMENTATION IN CONNECTION WITH THE
PRODUCTS AND SERVICES REFERRED TO IN THIS AGREEMENT SHALL BE GOVERNED BY AN
END USER LICENSE AGREEMENT BETWEEN ROUTE1 AND THE CUSTOMER RATHER THAN
THIS AGREEMENT.
© Route1 Inc., 2012. All rights reserved. Route1, the Route1 and shield design Logo, SECURING THE DIGITAL
WORLD, Mobi, MobiSecure, Route1 MobiKEY, Route1 MobiVDI, MobiKEY, MobiKEY IBAD, DEFIMNET,
MobiNET, Route1 MobiNET, TruOFFICE, TruFLASH, TruOFFICE VDI, MobiKEY Fusion, EnterpriseLIVE,
EnterpriseLIVE VO, MobiNET Agent and MobiKEY Classic, are either registered trademarks or trademarks of
Route1 Inc. in the United States and or Canada. All other trademarks and trade names are the property of their
respective owners. The DEFIMNET and MobiNET platforms, and the MobiKEY, MobiKEY Classic and MobiKEY
Fusion devices are protected by U.S. Patents 7,814,216 and 7,739,726, and other patents pending. Route1 Inc. is the
owner of, or licensed user of, all copyright in this brochure, including all photographs, product descriptions, designs
and images. No part of this brochure may be reproduced, transmitted or otherwise used in whole or in part or by any
means without prior written consent of Route1 Inc.
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SCHEDULE 1
"Appliance" means any hardware, device, sold or licensed by Route1, that is single purpose specific in its
application including, without limitation, the Route1 MobiNET platform, which is a service delivery platform for
identity and entitlement management designed to reside within all levels of classified and unclassified networks.
"Consulting Services" means those services set forth in a Statement of Work.
"MobiNET" platform means the collection of network devices, computers, servers, routers, circuits, switches,
cabling, and software, intellectual property, procedures, methods and processes, fully owned by or licensed to, and
operated by Route1.
"Emergency Downtime" means (i) a cessation of Customer’s access to the Services caused by power interruption,
telecommunication interruption, the hacking in of systems by unauthorized hackers, any laws, orders, rules,
regulations, acts or restraints of any governmental body or authority, an act of God, and any other event that Route1
is unable to prevent notwithstanding the exercise of commercial reasonable precautions; or (ii) the execution of
emergency maintenance on the System for an urgent and unexpected condition which Route1 is unable to prevent
notwithstanding the exercise of commercially reasonable precautions. "Emergency Downtime" may results as a need
to prevent (a) the imminent loss of data, or (b) the introduction or reproduction of a virus, worm or other malicious
application.
"Emergency Maintenance" means the maintenance required as a result of, and in an attempt to end, an Emergency
Downtime.
"End-User License Agreement" means the end-user license agreement pursuant to which Customer has licensed
certain software products from Route1.
"Party" means each of Route1 and Customer and, together, the "Parties".
"Products" means all Services, Consulting Services, together with all other subscription and Internet based
services, Software and other software owned or licensed by Route1, network and other devices (including, for
example, the MobiKEY device), servers, routers, circuits, switches, cabling, Appliances, together with the
MobiNET platform. The DEFIMNET and MobiNET platforms, and the MobiKEY, MobiKEY Classic and
MobiKEY Fusion devices are protected by U.S. Patents 7,814,216 and 7,739,726, and other patents pending.
"Security Device" means any token, SmartCard, hardware or device, sold or licensed by Route1, that is used to
contain security credentials, cryptographic keys, user identification information, or any other security, identification
or authentication information, secure or encrypted data, secure or encrypted content, including, without limitation,
MobiKEY devices which are identity validation devices.
"Services" means those services offered by Route1, as set forth in Schedule 2.
"Software" means the software licensed by Customer pursuant to an End-User License Agreement.
"Statement of Work" or "SOW" means a written statement regarding any customized or consulting work provided
by Route1 to the Customer, which is set forth in a Statement of Work, executed by both parties and attached hereto.
"Support and Maintenance" has the meaning ascribed thereto in Section 14.
"Updates" means those subsequent releases of the Software and Documentation which are generally made
available to licensees of the Software which are similarly situated to Customer, as part of subscription fee at no
additional charge. Updates shall not include any releases, enhancements, functionality or Products which Route1
licenses separately or charges for separate from those fees payable for the subscription to the Services or which
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Route1 provides under a separate Support and Maintenance Agreement. Updates shall be delivered only if and
when available and at Route1’s sole and unfettered discretion.
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SCHEDULE 2
Description of the Services to Be Provided
Services:
As set forth in the accepted Purchase Order
Fees:
As set in forth in the accepted Purchase Order
Services Renewal Period:
As set forth in the accepted Purchase Order
Invoices for Services are payable on receipt unless otherwise provided above.
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SCHEDULE 3
1.
SERVICE LEVEL TARGETS:
Exclusive of Scheduled Maintenance and Emergency Maintenance windows, as defined hereunder, the MobiNET
platform targets to provide availability to the edge of the public Internet 99.9% of the time for the authentication,
access to and usability of Services for which the Customer has paid for and is otherwise in good standing with
Route1.
2.
SCHEDULED MAINTENANCE.
2.1
Route1 will provide a minimum of:
2.1.1
twenty-four (24) hours notice in the event that Scheduled Maintenance that is likely to cause a loss of
availability of a Service for less than thirty (30) minutes.
2.1.2
forty-eight (48) hours notice in the event that Scheduled Maintenance that is likely to cause a loss of
availability of a Service for thirty (30) minutes or more.
2.1.3
seventy-two (72) hours notice in the event that Scheduled Maintenance is likely to cause a loss of
availability of a Service for one-hundred-twenty (120) minutes or more.
2.2
Route1 is not obliged to, but will seek to carry out on a commercially reasonable efforts basis any
Scheduled Maintenance on the MobiNET platform at times that will least affect our Customers.
3.
EMERGENCY MAINTENANCE.
3.1
Route1 reserves the right to carry out Emergency Maintenance work at any time on the MobiNET platform,
including work that impacts the availability of Services, provided that:
3.1.1
Notice of the Emergency Maintenance is promptly provided on Route1’s website at www.route1.com;
3.1.2
Such Emergency Maintenance, at Route1's determination and/or discretion, needs to be performed
immediately and cannot be performed as part of Scheduled Maintenance.
4.
MOBINET PLATFORM AVAILABILITY.
4.1
The availability of a particular Service outside of a Scheduled Maintenance window will be measured
based on the time that the said Service was not available as determined by Route1 based on the following
conditions:
4.1.1
Loss of availability will be measured in minutes between the start time and an end time as defined in this
section.
4.1.2
The start time for the purpose of calculating Route1’s obligations to the Customer will be the time that the
Customer reports to Route1 (by email to [email protected] or by telephone at 1-866-371-1781 [outside North
America 416-804-6760]) that the Service is unavailable and obtains a support ticket ("Support Ticket"), and it is
confirmed to be so by Route1 tests at such time.
4.1.3
again.
The end time will be declared by Route1 at a time at which the Service can be demonstrated to be available
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SCHEDULE 4
SUPPORT AND MAINTENANCE
For any Software that is licensed and is provided by Route1 to use the Services or to use in conjunction with the
Services to which the Customer subscribes and has paid for (but not excluding any Software, Appliances and/or
Security Devices that are subject to a separate Support and Maintenance Agreement with Route1), Customer shall
receive, until the end of the Services Renewal Period, at no additional charge:
(a) if and when available, any Software Updates for the period for which such subscription is active; and
(b) telephone and e-mail technical support.
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