6-Kajeet Terms of Use - TCH2131666B1.pdf

Kajeet Terms of Use for Sentinel

Last Revised: May 17, 2024 Ver: 4517

PLEASE READ THIS AGREEMENT CAREFULLY.

This Kajeet Terms of Use for Sentinel ("Terms of Use") is a legally binding contract between Kajeet Inc., a Delaware corporation (“Kajeet”) with offices located at 7901 Jones Branch Drive, Suite 350, McLean, VA 22102, and the other legal entity named on the Ordering Document that references this Kajeet Terms of Use (“Customer”).

KAJEET PROVIDES THE SENTINEL SERVICES, HARDWARE, AND CELLULAR ACCESS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON OR OTHER MEANS PROVIDED FOR ACCEPTANCE OR USING THE SENTINEL SERVICES, HARDWARE, AND CELLULAR ACCESS, CUSTOMER AGREES TO: (A) ACCEPT THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUCH PARTY TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT ACCESS THE PORTAL, INSTALL THE HARDWARE, UTILIZE THE PROFESSIONAL

SERVICES, USE THE CELLULAR ACCESS, OR UTILIZE THE SERVICES.

1. Definitions. Kajeet and Customer collectively shall be referred to herein as the “Parties” and each individually as a “Party." Unless specifically stated otherwise, capitalized terms used in Exhibits and Ordering Documents shall have the meaning set forth in this Agreement.

“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party. A corporation or other entity shall be deemed to control another if it owns or controls directly or indirectly more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity or has the right to direct the management of such entity.

“Agreement” means this Kajeet Terms of Use and the attached Exhibits.

“Cellular Access” means the transmission of data over various wireless carrier networks as described in various data plans detailed in Exhibit A (Service Description) and appropriate Ordering Documents.

“Charges” mean the service fees and other charges paid by Customer to Reseller for use of the Portal, Hardware, Professional Services, Cellular Access, and Services pursuant to Ordering Documents issued pursuant to the Commercial Agreement.

“Commercial Agreement” means the agreement entered into between the Customer and the Reseller that covers, among other things, the commercial terms for use of the Portal, Hardware, Professional Services, Cellular Access, and Services including, but not limited to, the Charges, payment terms, etc.

“Customer Agreement” means a legally binding agreement between the Customer and a Subscriber that authorizes use of the Sentinel Services, Hardware, and Cellular Access as well as other products and services offered by the Customer, if any.

“Customer Products” Means devices sold by Customer that are not provided by Kajeet.

“Documentation” means all customer-facing documentation made available by Kajeet to Customer and any succeeding changes thereto. The Documentation shall be considered a component of the Portal, Hardware, Professional Services, Cellular Access, and Services.

“Exhibits” mean the documents attached hereto and incorporated by this reference. In the event of any inconsistency, the documents shall take precedence in the following order: Terms and Conditions, Ordering Documents, and all other Exhibits. Exhibits include, without limitation, the following:

Exhibit A: Service Description

Exhibit B: SmartBus Installation Addendum

Exhibit C: Kajeet-Owned Equipment Addendum

Exhibit D: SmartSpot Protection Addendum

“FERPA” means the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g; 34 C.F.R. Part 99, both as amended. FERPA sets certain limits on the disclosure of student records.

“Hardware” means various hardware devices as detailed in Exhibit A (Service Description) and appropriate Ordering Documents that are manufactured by third parties and resold under this Agreement.

“Line of Service” means a line of service that was in a state other than a de-activated state at any point during the calendar month.

“Marks” means the trade names, trade dress, trademarks, service marks, commercial symbols, domain names, brands, designs, logos and\or any other marks used to denote the owner or licensors as the source of the products and services.

“MRC Commencement Date” means the date the Sentinel Services commences commercial (non-testing) operation, as indicated in the applicable Ordering Document.

“Ordering Document” means any document that places an order for the Portal, Hardware, Professional Services, Cellular Access, and Services under the terms of the Commercial Agreement with the Reseller. An Ordering Document may be styled as a Statement of Work, Order, executed quote, task order, purchase order, or other type of ordering agreement.

Ordering Documents are agreements between Customer and Reseller and NOT between Customer and Kajeet, however certain Specifications and other contractual terms defined therein are referenced in this Kajeet Terms of Use, and to that extent, become a part of this Kajeet Terms of Use.

“Portal” means the online hosting services platform and web interface that powers the Sentinel Services that is owned, operated, or controlled by Kajeet consisting of various infrastructure components, including but not limited to servers, networking components, system software, and internet access all as more specifically described in Specifications.

“Portal Data” means any data entered into the Portal, inclusive of ICCID, Subscriber name, Subscriber shipping address, and administrator credentials; and data entered by Customer or its Subscribers into the Portal inclusive of ICCID unique identifier.

“Reseller” means the third party that receives the Charges from Customer for the Portal, Hardware, Professional Services, Cellular Access, and Services provided hereunder and who entered into the Commercial Agreement with Customer.

“Sentinel Services” means the Sentinel offering described in Exhibit A (Service Description), including but not limited to an automated failover solution when a Subscriber’s router loses Internet connectivity.

“Services” means (i) the Sentinel Services; (ii) the Portal; (iii) Fulfillment Services; (iv) Cellular Access; (v) the Training Services; and (vi) Professional Services.

“SIM Card” means a subscriber identity module or subscriber identification module (SIM) which is used in conjunction with the Sentinel Services and Customer Products to identify and authenticate Subscribers on mobile devices.

“Specifications” means, as appropriate: (i) the specifications for the Portal as set forth in Ordering Documents and Exhibit A (Service Description); (ii) the specifications for the Sentinel as set forth in Ordering Documents and Exhibit A (Service Description); (iii) the specifications for the Fulfillment Services as set forth in Ordering Documents and Exhibit A (Service Description); (iv) the specifications for Cellular Access as set forth in Ordering Documents and Exhibit A (Service Description); (v) the specifications for various Student Rate Plans as set forth in Ordering Documents and Exhibit A (Service Description); (vi) the specifications for SmartBus and its installation as set forth in Ordering Documents and Exhibit B (SmartBus Installation Addendum); (vii) the specifications for Kajeet-Owned Equipment as set forth in Ordering Documents and Exhibit C (Kajeet-Owned Equipment Addendum); (viii) the specifications for SmartSpot Protection as set forth in Ordering Documents and Exhibit D (SmartSpot Protection Addendum); (ix) the specifications for Professional Services as set forth in SOWs; and (x) the specifications for Training Services set forth in the applicable Ordering Documents.

“Statement of Work” or “SOW” means a statement of work document mutually agreed to and executed by the Parties.

Statements of Work define the applicable elements of an engagement which may include the Sentinel Services, Professional Services, Training Services, and\or other deliverables to be provided under the terms of this Agreement including the Specifications, schedules, pricing, and other deliverable-specific requirements.

“Subscriber” means a person authorized by Customer to use the Sentinel Services, Hardware, and Cellular Access. A Subscriber shall not mean an entity that resells or markets the Portal, Hardware, Professional Services, or Services.

“Training Services” means services provided by Kajeet and its authorized training consultants whereby Kajeet shall train Customer employees in accordance with the curriculum and other training content (“Training Content”) agreed to in Ordering Documents. Training Services may be provided in a classroom setting, via video or audio conferences, online webinars, or other formats, all as agreed to in Ordering Documents. Training Services do not include any rights to any Training Content or other written or electronic materials (whether online or otherwise) unless specifically set forth in Ordering Documents.

2. Term and Renewal.

2.1 Agreement Term. This Agreement shall commence as of the date set forth on the Ordering Document, and unless earlier terminated as provided herein, shall continue for the period as set forth in the applicable Ordering Document (the “Term”).

2.2 Services Term. The term for the specific monthly recurring Services is set forth in each Ordering Document (each a “Service Term”) that begins on the MRC Commencement Date applicable to such Service and remains in effect until the expiration of the initial Service Term specified in the applicable Ordering Document, unless earlier terminated as provided herein.

2.3 Customer Agreements. All Customer Agreements for the Services, Hardware, and Cellular Access shall be between Customer and Subscribers and shall contain all of the applicable rights and obligations for Subscribers as are required herein. Except as otherwise expressly permitted in writing by Kajeet, Customer shall have no right to sublicense the Portal, resell the Hardware, resell the Professional Services, resell the Cellular Access, and resell the Services not specifically defined in an Ordering Document or any Exhibits hereto. This appointment is limited to Customer only and may not be assigned or transferred by Customer or otherwise extended to any other party except as set for in Section

15.5 (Assignment) of the Agreement.

2.4 Designation As School Official. Customer hereby designates Kajeet as a “school official” with “legitimate educational interests” in the educational records, as those terms have been defined under FERPA and its implementing regulations, and Kajeet agrees to abide by the FERPA limitations and requirements imposed upon school officials.

3. Licenses. Subject to the terms and conditions of this Agreement including any payment obligations, Kajeet grants to Customer, and Customer accepts the following licenses (collectively, the “Licenses”):

3.1 Sentinel License Grant. If Customer has contracted in an Ordering Document to license access to the Sentinel Services (a “Sentinel License”), then Kajeet grants Customer, in consideration for Customer’s payment obligations, a limited, nontransferable, and nonexclusive right to grant sublicenses to its Subscribers to access and use the Sentinel Services strictly during the Service Term and in accordance with the Specifications consistent with the provisions of this Agreement and Ordering Documents for Customer’s internal usage only. No license is granted under any Sentinel License to access, copy, or use the software that supports the Sentinel Services, except in connection with the Sentinel Services

3.2 Portal License Grant. If Customer has contracted in an Ordering Document to license access to the Portal (a “Portal License”), then Kajeet grants Customer, in consideration for the Customer’s payment obligations, a limited, nontransferable, and nonexclusive right to access and use the Portal strictly during the Service Term and in accordance with the Specifications consistent with the provisions of this Agreement and Ordering Documents for Customer’s internal usage only. No license is granted under any Portal License to access, copy, or use the software that supports the Portal, except in connection with the Portal.

3.3 Trademark License. Kajeet grants to Customer during the Term of this Agreement a non-exclusive, non-transferable license to use the Kajeet Marks solely in connection with the marketing of the Portal, Hardware, Professional Services, Cellular Access, and Services and solely in compliance with this Agreement. Customer will not use the Kajeet Marks or confusingly similar Marks in connection with any goods or services other than as specified by Kajeet. Customer acknowledges that (i) all rights in the Kajeet Marks, in registrations of the Kajeet Marks, in applications for registration of the Kajeet Marks, and in all goodwill associated therewith, shall always remain the sole and exclusive property of Kajeet, and (ii) all use of the Kajeet Marks shall inure to the benefit of Kajeet. Whenever Customer uses the Kajeet Marks in any manner (advertising or other uses), Customer shall clearly indicate that they are owned by Kajeet and that they are being used under license from Kajeet. Customer shall not add or attach to the Hardware or its packaging any label, marking or information that has not been approved in advance by Kajeet in writing. Under no circumstances shall

Customer register any internet domain names containing any Kajeet Marks or any other names that are confusingly similar to the Kajeet Marks.

3.4 Limitations on Use. No license is given to Customer or any Subscriber to the source code underlying the Portal or Sentinel Services. Without the express written authorization from Kajeet, Customer or any Subscriber shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Portal or Sentinel Services (including the Documentation) for any purpose other than as specified in this Agreement and Ordering Documents; (ii) decompile, disassemble, re-program, analyze, reverse engineer any of the Portal, Sentinel Services, or Hardware (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Portal, Sentinel Services, ; (iv) use the Portal, Sentinel Services, to create a service bureau, timesharing arrangement, or application service provider; (v) modify, adapt, translate, prepare derivative works of all or any portion of the Portal, Sentinel Services, or attempt to do so; (vi) remove, obscure or alter Kajeet’s or its licensors’ product identification, copyright notices, Marks or other proprietary rights notices affixed to or contained within the Portal, Sentinel Services, or Documentation or Hardware; (vii) permit the Portal, Sentinel Services, or Documentation to be used, examined, reviewed or inspected by others, other than by Customer’s employees, auditors or governmental agencies as required by law; (viii) disclose the results of any benchmark or evaluation of the Portal, Hardware, Professional Services, or Services to any third party (whether or not obtained with Kajeet’s assistance) without Kajeet’s prior express written consent; (ix) use the Portal, Sentinel Services, Documentation or any information contained therein or otherwise provided by Kajeet or its licensors for the purposes of developing, or having developed, any products or services competitive with the Portal, Sentinel Services, ; (x) incorporate, link, or distribute the Portal, Sentinel Services, with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Portal, Sentinel Services, (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. Customer and its Subscribers shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities or attempting to do so.

3.5 Reserved Rights. Kajeet reserves all rights not expressly granted under this Agreement.

4. No License to Affiliates. Unless specified otherwise in an Ordering Document, all rights granted to Customer and all of Customer’s obligations under this Agreement, are granted to, and incurred by, Customer and not, by implication or otherwise, to any Affiliate of Customer.

5. Sentinel Services and Portal.

5.1 Scope and Performance. Kajeet will implement the Sentinel Services and Portal in accordance with the Specifications. Kajeet will not be responsible for implementation delays or service degradations that are not within its control including, without limitation, implementation delays or service degradations caused by Customer, its Subscribers or third-party service providers or any interconnecting communications carrier. Title to any communications equipment and computer hardware installed by Kajeet in connection with the performance of the Portal will remain with Kajeet.

5.2 Sentinel Services and Portal Changes. Kajeet in its sole discretion may alter the design of the Sentinel Services and Portal provided that the alteration: (i) does not result in any material deviation from the Specifications; (ii) is required to avoid infringement of any third party intellectual property; or (iii) is required to conform with laws or applicable governmental regulations.

6. Professional Services

6.1 Performance of Professional Services. During the Term of this Agreement and upon the request of the Customer, Kajeet or its authorized agents may provide certain professional services to Customer from time to time as set forth in SOWs (“Professional Services”). Unless otherwise specified in a SOW or other document signed by Kajeet and Customer, Kajeet (or its licensors) shall retain all Intellectual Property Rights to all deliverables, including, without limitation, all information, ideas, concepts, software, source, and object code provided during, or resulting from, the provision of the Professional Services except for any pre-existing Intellectual Property Rights of Customer.

6.2 Independent Contractor. Kajeet, including Kajeet’s employees, agents, and contractors, if any, will be, and at all times during this Agreement will remain, independent contractors in relation to Customer. Kajeet is not an agent or employee of Customer. Kajeet has no authority whatsoever to bind Customer, by contract or otherwise, nor will Kajeet represent that it has any such authority, express, implied, or otherwise. Kajeet will perform the Professional Services under the general direction of Customer as to the result of such activity, but Kajeet will determine, in Kajeet’s sole discretion, the manner and means by which the Professional Services are accomplished, subject to the express condition that Kajeet will at all times comply with applicable laws. Employees, agents, or contractors of Kajeet performing work under this Agreement will not have any rights to any of Customer’s employee fringe benefits, including, but not limited to, worker’s compensation benefits. Kajeet will comply with all applicable laws concerning it or its employees, agents, or contractors. Kajeet will assume all responsibility and liability for the actions or omissions of its employees, agents, and contractors who perform Professional Services. Kajeet will be solely responsible and liable for all employment and payroll taxes or other taxes of any kind relating to the Professional Services performed by Kajeet and its employees, agents, or contractors.

7. Training Services. If so specified in an Ordering Document, Kajeet shall provide Customer, at a location to be mutually agreed upon or via an Internet-based webinar, Training Services for Customer's employees, with training in the installation, use, operation and support of the Portal, Hardware, Professional Services, Cellular Access, and Services, subject to availability of such training courses. Customer may use material provided to conduct courses for Subscribers provided that Kajeet’s copyright notices are retained thereon.

8. Customer Obligations

8.1 Access and Passwords. After the Portal is ready for use by Customer, Kajeet shall issue (a) a link to Customer that will enable Customer to access the Portal; and (b) a password to access the Portal. Customer is responsible for accessing the Portal in accordance with the terms of this Agreement and maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by those who are authorized. Customer is entirely responsible for all activities that occur under Customer's account and all charges incurred in connection with use of the Portal using Customer’s accounts. Customer shall immediately notify Kajeet of any unauthorized use of Customer's account, including, without limitation, or any other breach of this Agreement or any security breach known to Customer.

Kajeet shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements.

8.2 Cooperation and Assistance. Customer shall provide Kajeet with access to technical personnel and information in connection with performance of the Portal, Hardware, Professional Services, Cellular Access, and Services and will furnish all information and assistance required to be provided by Customer under the Ordering Document. Customer will promptly notify Kajeet in sufficient detail of any defect, deficiency or error known to or discovered in the Portal, Hardware, Professional Services, or Services by Customer in sufficient detail to enable Kajeet to duplicate the condition.

Customer shall respond promptly to any Kajeet requests to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Kajeet to perform the Professional Services in accordance with the Specifications and other requirements of this Agreement. Customer shall ensure that all Customer equipment set forth in a SOW is in good working order and suitable for the purposes for which it is to be used and conforms to the requirements for such equipment in the relevant SOW.

8.3 Access to Premises; Safety. Customer shall provide Kajeet such access to Customer’s premises and such office accommodations and other facilities as may reasonably be requested by Kajeet and agreed with Customer in advance, for the purposes of performing the Professional Services. Prior to Kajeet’s commencement of any Professional Services to be performed on Customer’s premises, Customer shall inform Kajeet in writing of any hazardous materials or conditions in or at the premises. Kajeet reserves the right to stop work should any conditions pose a situation that could be hazardous to life or health. If work ceases due to a hazard created by Customer or conditions present at the premises, such work stoppage shall be considered a delay caused by Customer and Kajeet shall not be held liable for costs associated with such delays or any remediation efforts.

8.4 Export Compliance. All Portal, Hardware, Professional Services, Services, deliverables, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with these laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import as may be required by law. Any delays attributable to Kajeet’s ability to secure appropriate export licenses or other required export documentation shall not be considered a breach of this Agreement. Customer will not export, re-export, transfer or license any Portal, Hardware, Professional Services, or Services to any person or entity that is named as a “Specially Designated National” or “Blocked Person” as designated by United States Department of the Treasury’s Office of Foreign Assets Control (OFAC).

8.5 Delays. If Kajeet's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or any Subscriber, their agents, subcontractors, consultants, or employees, Kajeet shall not be deemed in breach of its obligations under this Agreement, otherwise liable for any costs, charges, or losses sustained or incurred by Customer, and shall not constitute a basis for a delay in payment of any invoice to Kajeet, in each case, to the extent arising directly or indirectly from such prevention or delay.

8.6 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (b) the security and use of Customer's access credentials to the Portal; and (c) all access to and use of the Portal directly or indirectly by or through the Customer Systems including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

8.7 Support Obligations for Subscribers. Customer shall be solely responsible for providing certain support obligations to Subscribers in connection with the Portal, Hardware, Professional Services, Cellular Access, and Services. The Customer’s specific support obligations are defined in Exhibit A (Service Description) or an applicable Ordering Document. Kajeet shall be responsible for certain other support obligations provided directly to Customer (and not Subscribers) as defined in Exhibit A or an applicable Ordering Document.

9. Intellectual Property Rights

9.1 Kajeet Intellectual Property Rights. Customer acknowledges and agrees that the intellectual property rights underlying the Sentinel Services, the Portal, the Fulfillment Services, Training Content and Documentation (collectively, “Kajeet IP”) are owned by, and shall remain the sole property of Kajeet and its licensors, that the Kajeet IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by Kajeet and its licensors, and that Kajeet and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Kajeet IP worldwide including, without limitation, any derivative works. The "look and feel" of the Portal, meaning the structure, sequence and layout of the audiovisual components of the Portal, including, but not limited to, the color combinations, button shapes, and all other graphical and navigational elements, the design for which was dictated by artistic and aesthetic considerations and not by utilitarian or mechanical ones, are also proprietary to Kajeet and fully protected under U.S. and international copyright and trademark laws except for Customer branding, Customer Marks, or other content to the extent specifically provided in writing by Customer. This Agreement does not convey to Customer title or ownership of the Intellectual Property Rights underlying the Kajeet IP, but only a right of limited use in accordance with this Agreement. Customer acknowledges that the Kajeet IP provided by Kajeet pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of Kajeet or its licensors.

9.2 Customer Intellectual Property Rights. Kajeet acknowledges and agrees that the intellectual property rights underlying any intellectual property provided by Customer to Kajeet hereunder, the Customer Products (collectively, “Customer IP”) are owned by, and shall remain the sole property of Customer and its licensors, that the Customer IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by Customer and its licensors, and that Customer and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Customer IP worldwide including, without limitation, any derivative works. This Agreement does not convey to Kajeet title or ownership of the Intellectual Property Rights underlying the Customer IP, but only a right of limited use in accordance with this Agreement. Kajeet acknowledges that the Customer IP provided by Customer pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of Customer or its licensors.

9.3 Title and Risk of Loss for Hardware. All title and risk of loss for all Hardware shall pass to Customer upon shipment of the Hardware by Kajeet or its fulfillment provider from the shipper’s loading dock.

9.4 Suggestions. Many of Kajeet’s changes to user interfaces, features, functionality, and other aspects of the Portal, Hardware, Professional Services, Cellular Access, and Services come as a result of suggestions made by customers and partners in various forms (“Suggestions”). All customers benefit from Suggestions in future product releases. Customer grants Kajeet an irrevocable, worldwide, royalty-free, perpetual license to use as Kajeet deems appropriate any Suggestions that Customer provides to Kajeet and to incorporate such Suggestions in any Kajeet products or services.

10. Confidentiality and Data

10.1 Confidentiality.

10.1.1 “Confidential Information” means all such information, material and data received by one Party (the "Receiving Party") from the other Party (the "Disclosing Party") or its clients, whether disclosed in writing or verbally, (i) that is labeled or designated in writing as confidential or proprietary, (ii) which Receiving Party is advised is proprietary or confidential or (iii) which, in view of the nature of such information or the circumstances of its disclosure, Receiving

Party knows or reasonably should know is confidential or proprietary. Confidential Information includes the terms and conditions of this Agreement, including the Prices. Confidential Information shall not include information which (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) is rightfully received from a third party without an obligation of confidence; (c) is independently developed by the Receiving Party without reference to Confidential Information; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Receiving Party provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the Confidential Information.

10.1.2 Use of Confidential Information. The Receiving Party will hold any Confidential Information in strict confidence for a period of three (3) years from termination of this Agreement, except that the obligation of the Receiving Party to maintain the confidentiality of trade secrets and personally identifiable data shall survive indefinitely. The Receiving Party will use such Confidential Information only in accordance with the terms of this Agreement. The Receiving Party shall limit the use of, and access to, the Confidential Information to its employees or agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. The Receiving Party shall, by appropriate means, prevent the unauthorized disclosure, publication, display, or use of any Confidential Information.

Without limiting the generality of the foregoing, the Receiving Party shall require all employees, agents or contractors who shall have access to the Confidential Information to execute, prior to such access, a non-disclosure agreement providing for at least the same protection of the Confidential Information as is provided for by this Section.

10.1.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return to the Disclosing Party, or, if requested, destroy all copies of the Disclosing Party’s Confidential Information in its possession. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the Receiving Party in any form or for any reason.

10.2 Privacy Policy. Customer's use of the Portal by Subscribers is subject to the terms and conditions of the Kajeet privacy policy set forth at https://www.kajeet.com/privacy-policy-2.

11. Warranties

11.1 Sentinel Services Warranty. Kajeet warrants during the Service Term for the Sentinel Services set forth in any applicable Ordering Documents, the Sentinel Services will be provided in accordance with the Specifications for the Sentinel Services. Customer’s sole remedy for any claims under this Section 11.1 shall be for Kajeet to correct such failures at no charge to Customer.

11.2 Portal Warranty. Kajeet warrants during the Service Term for the Portal set forth in any applicable Ordering Documents, the Portal will be provided in accordance with the Specifications for the Portal. Customer’s sole remedy for any claims under this Section 11.2 shall be for Kajeet to correct such failures at no charge to Customer.

11.3 Kajeet SmartSpot Services Warranty—the Network Guarantee. Kajeet warrants that: (i) during the first thirty (30) days following the Customer’s receipt of a shipment of Devices, Customer may request, and Kajeet shall, at its option, replace each Device with a Similar Device and/or change the Cellular Access to another Supported Carrier, for up to the entire quantity of Devices within that shipment, if the requested Devices are experiencing Poor Network Coverage; and

(ii) after the first thirty (30) day period but during the Service Term, Customer may request, and Kajeet shall, at its option, replace each Device with a Similar Device and/or change the Cellular Access to another Supported Carrier, for up to 10% of the Customer’s deployed Devices each calendar year if the requested Devices are experiencing Poor Network

Coverage. “Poor Network Coverage” means that the applicable Device demonstrates, more than 50% of the time, measured over a 5-day period or more, no service or one bar of coverage from the Supported Carrier. “Similar Device” means a new or refurbished Device that is, at the time of the replacement, currently sold by Kajeet and has the same or better Specifications as the Device being replaced. In the event that an upgrade to a higher-tier Device is required, Kajeet will apply a full credit of the original price paid toward the upgrade provided that Customer pays the difference in price. Only Devices that demonstrate Poor Network Coverage will be replaced and/or moved to another Supported Carrier. Use of multiple Supported Carriers does not adversely affect the ability to manage and administer of all Devices using Sentinel.

11.4 SIM Card Warranty. Kajeet warrants that all SIM Cards will conform to the SIM Card Specifications set forth in the appropriate Ordering Document and shall be free from material defects for a period of one (1) year from the activation date of the SIM Card (the “SIM Card Warranty Period”). Kajeet shall ship to Customer a replacement SIM Card for each defective card within two (2) business days following notification of defect within the SIM Card Warranty Period. While Kajeet normally does not require the return of a defective SIM Card, Kajeet reserves the right to request the return of the defective SIM Card, at Kajeet’s expense.

11.5 Hardware Warranty.

11.5.1 Manufacturers’ Warranty. Kajeet provides to Customer a pass through of the warranties provided by the manufacturers of the Hardware, if any, that Kajeet resells to Customer. Customer shall address all warranty issues directly through Kajeet.

11.5.2 Extended Warranties. Kajeet may, from time-to-time, make extended warranties offered by manufacturers available to Customer (“Kajeet Extended Warranty”). If an extended warranty is offered to Customer and Customer is willing to enter into the Kajeet Extended Warranty and pays for same, then the price for the extended warranty shall be reflected on applicable Ordering Document and the terms and conditions of the extended warranty shall be included in the Ordering Document or otherwise made available to Customer.

11.5.3 RMA Process. Prior to returning any Hardware to Kajeet for repairs or replacement, Customer must obtain a Return Merchandise Authorization number (“RMA#”) from Kajeet by calling or emailing Kajeet’s Customer Care group using the contact information set forth in Ordering Documents. In addition to providing an RMA#, Kajeet shall provide the ship-to address for the returned Hardware. Hardware shipped to Kajeet without an RMA# will be returned to Customer at Customer’s expense. Customer agrees to pay all shipping and freight charges, FOB Kajeet’s offices, for all Hardware sent to Kajeet. After repairing or replacing the Hardware, Kajeet shall pay all shipping and freight charges, FOB Kajeet’s offices, to return the Hardware back to Customer unless (i) Customer has sent Hardware to Kajeet that is out of warranty; or (ii) the Hardware sent to Kajeet is in working condition and not in need of repair or replacement; or (iii) the Hardware was sent to Kajeet without an RMA# issued by Kajeet. Under the preceding conditions, Customer agrees to pay or reimburse Kajeet for all shipping and freight charges. Customer acknowledges that it is solely responsible for backing-up and safeguarding any data stored on the Hardware at all times including before shipment to Kajeet. If Customer ships any Hardware to Kajeet or its designee, Kajeet is only responsible for any loss or damage that occurs (a) while at the site of Kajeet or its designee and (b) where the loss or damage is caused by the negligence or willful misconduct of Kajeet or its designee. In that case, Customer’s only remedy and Kajeet’ sole liability to Customer shall be for Kajeet to repair or replace the lost or damaged Hardware.

11.6 Professional Services Warranty. Kajeet warrants that: (a) the Professional Services will be performed in a workmanlike manner; and (b) the deliverables delivered to Customer are warranted to materially conform to the

Specifications for a period of One (1) year after completion of the Professional Services (the “Professional Services Warranty Period”). Customer must notify Kajeet in writing of any Professional Services warranty deficiencies during the Professional Services Warranty Period. Customer’s sole remedy for any claims under this Section 11.6 shall be for Kajeet to correct such failures at no charge to Customer.

11.7 DISCLAIMER OF WARRANTY FOR CELLULAR ACCESS. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF CELLULAR ACCESS IS AT CUSTOMER’S AND ITS Subscribers’ SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CELLULAR ACCESS IS PROVIDED “AS IS” AND “AS AVAILABLE” AND KAJEET DOES NOT REPRESENT THAT CELLULAR ACCESS COVERAGE WILL MEET CUSTOMER’S OR ITS SUBSCRIBERS’ REQUIREMENTS. KAJEET AND ITS CELLULAR ACCESS SUPPLIERS MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY, SUITABILITY OR MAINTENANCE

OF THE OF CELLULAR ACCESS USED BY KAJEET OR ITS SUBSCRIBERS TO TRANSMIT DATA.

11.8 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES (INCLUDING ANY PORTAL, HARDWARE, PROFESSIONAL SERVICES, OR SERVICES SPECIFIC WARRANTIES SET FORTH IN AN APPLICABLE EXHIBITS OR ORDERING DOCUMENTS) ARE IN LIEU OF, AND THE PARTIES EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (B) PERFORMANCE OR INTEROPERABILITY OF THE PORTAL, HARDWARE, PROFESSIONAL SERVICES, OR SERVICES NOT PROVIDED OR APPROVED BY KAJEET. KAJEET SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PORTAL, HARDWARE, PROFESSIONAL SERVICES, OR SERVICES WILL BE

UNINTERRUPTED OR ERROR FREE.

11.9 Sole Remedy. Customer’s sole remedy and Kajeet’s sole obligation for any warranty claims under this Agreement shall be as set forth in this Section 11.

12. Indemnification. This Section 12 does not apply to any Customer that is a government entity.

12.1 Indemnification by Customer. Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless Kajeet, and each of its officers, directors, owners, employees, agents or licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, "Losses") arising out of or in connection with: (i) any use of the Portal, Hardware, Professional Services, Cellular Access, and Services that is outside of its intended use as set in the Specifications; (ii) claims that Customer IP infringes any trademark, patent, copyright or misappropriates any trade secret enforceable in the United States (an “IP Claim”); (iii) any resale or distribution of the Portal, Hardware, Professional Services, or Services that is not authorized under this Agreement; (iv) agreements between Customer and its Subscribers (unless such Loss stems from Kajeet’s breach of this Agreement); (v) Customer’s failure to include any required indemnification provision in its Customer Agreements that are required pursuant to Part I (Specifications for Student Rate Plans for Sentinel) of Exhibit A (Service Description); (vi) a statement or representation regarding the Portal, Hardware, Professional Services, or Services that is not reasonably supported by the Specifications or otherwise provided in writing or approved in writing by Kajeet; or (vii) Customer's failure to meet regulatory requirements, failure to obtain any necessary governmental approvals or failure to comply with all laws, administrative regulations, and executive orders of any applicable jurisdiction.

12.2 Indemnification by Kajeet. Kajeet (the “Indemnifying Party”) shall defend, indemnify and hold harmless Customer and its officers and directors, owners, employees or agents (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, "Losses") arising out of or in connection with any specific third-party claim, suit, or allegation (a) of bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of Kajeet or Kajeet’s employees and subcontractors during the performance of Professional Services; or (b) that the Sentinel Services or Portal provided by Kajeet under this Agreement specifically causes an infringement of a patent, trademark, copyright or other proprietary right of such third party that is enforceable in the United States (collectively the “IP Claim”). Kajeet shall not be liable for: (i) any costs or expenses incurred by Customer without Kajeet's prior written authorization; (ii) designs, instructions, data, materials, or any other intellectual property provided by Customer; (iii) infringement caused from unauthorized modifications to the Sentinel Services or Portal; (iv) Customer's combination of the Sentinel Services or Portal with other products or services and the infringement would have been avoided but for such combination; (v) Customer's implementation of a Customer originated design or modification where infringement is due to such specified design or modification; or (vi) Customer’s use of the Sentinel Services or Portal other than in accordance with the Specifications.

12.3 Indemnity Procedure. The Indemnified Party shall provide the Indemnifying Party with (i) prompt written notice of any claims under this Section 12 for which it seeks indemnification hereunder; (ii) full information and assistance in settling and\or defending the claims; and (iii) full authority and control of the defense and\or settlement of any such claims.

12.4 IP Claim Infringement Remedy. In the event of an IP Claim, the Indemnifying Party shall, at Indemnifying Party’s option and at no expense to the Indemnified Party: (a) by license or other release from claim of infringement, obtain for the Indemnified Party any rights that it has under this Agreement to the product or service in question; (b) substitute an equivalent non-infringing product or service reasonably acceptable to the Indemnified Party, which meets the Specifications, and extend this indemnity thereto; or (c) modify the product or service to make it non-infringing but continue to meet the Specifications therefore, and extend this indemnity thereto.

12.5 Exclusive Remedy for Indemnification. The remedies set forth in this Section 12 (Indemnification) shall be the exclusive remedies of the Parties with reference to any claims for indemnification and IP Claims.

13. Limitation of Liability.

13.1 LIMITATION ON INDIRECT DAMAGES. NEITHER OF THE PARTIES NOR KAJEET’S LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, COST OF REPLACEMENT GOODS OR SERVICES, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN

DISCLOSED TO EITHER PARTY OR THEIR LICENSORS.

13.2 LIMITATION ON DIRECT DAMAGES. BOTH PARTIES SHALL BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES ONLY, IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL AMOUNT OF REVENUE GENERATED UNDER THE APPLICABLE ORDERING DOCUMENT FROM WHICH THE CLAIM AROSE IN THE MOST RECENT

TWELVE (12) MONTH PERIOD FROM WHEN THE CLAIM AROSE.

14. Termination.

14.1 Termination By Either Party. A non-breaching Party may terminate this Agreement for cause by written notice to breaching Party upon the occurrence of any of the following events: (i) the material breach by breaching Party of any term, provision, representation or warranty of this Agreement that remains uncured thirty (30) days after the non-breaching Party provides written notice thereof; (ii) a material breach of any of its intellectual property or confidentiality obligations; or (iii) Party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors, and such event continues for ninety (90) days after the non-breaching Party provides written notice thereof. In the event of any uncured breach of this Agreement by Customer, then Kajeet may, without any further notice to Customer, take any or all of the following actions in its sole discretion, (a) stop providing access to the Portal, cease shipping any Hardware, stop providing the Professional Services, stop providing the Cellular Access, and stop providing access to the Services; (b) suspend the affected Services to which the breach is related, and/or (c) with or without ceasing to provide any access to Services or sale of Hardware, pursue any other remedies available to Kajeet at law or in equity, including, without limitation, the right, with or without process of law, to remove and dispose of any equipment and other personal property located on or at any Customer site or facility in accordance with applicable law.

14.2 Kajeet Termination. Kajeet may terminate this Agreement for cause by written notice to Customer upon notification by Reseller of Customer’s breach of the Commercial Agreement, including failure to pay amounts due to Reseller and remedy such breach or pay any such amounts due to Reseller within fifteen (15) days following such notice of breach or a failure to pay.

14.3 Rights Upon Termination. Upon any expiration or termination of this Agreement by either Party:

a) All Licenses granted hereunder shall terminate immediately;

b) within thirty (30) days of the effective termination date: (i) Kajeet agrees to export all of Customer data within the Portal in a format agreed upon in a SOW between the Parties; (ii) Kajeet will remove Customer’s account from the Portal and remove any remaining balances; and Customer will return any Kajeet-owned equipment to Kajeet;

c) Customer shall cease all display, advertising, and use of all Kajeet Marks, and will not thereafter use, advertise, or display any such Marks;

d). Upon notice of termination of this Agreement, or upon expiration of the Term, Kajeet may, without liability, cancel any pending…