Last updated: February 28, 2024

These Terms of Use form a legally binding agreement (the “Agreement”) between Tarana Wireless, Inc., a Delaware corporation (the “Company”), and the user (“You”) of the Company’s cloud managed products (“Products”), relating to access and use of the Tarana Cloud Suite TM (“TCS”), and the Company’s App (as defined below), which are provided by the Company to enable You to install, configure, manage and monitor the use of the Products.

If You are entering into this Agreement on behalf of a company or legal entity, You represent that You have the authority to bind that company or entity to this Agreement, and the terms “You” and “Your” will refer to that company or entity.

By using the TCS and/or the App, You agree to the terms of this Agreement. If You do not agree to this Agreement, you may not access or use the TCS or the App.

 

1.     ACCESS AND USE OF TCS AND THE APP

1.1     Access to, and use of, the TCS is part of the Company’s software, management and support package (the “SMS Services”), which the Company makes available for its remote nodes (“RNs”) and their associated base nodes (“BNs”).  Subject to the terms and conditions of this Agreement, You may access and use the TCS for Your internal business purposes, as long as SMS Services are in effect for You.  SMS Services are purchased for fees (“SMS Fees”) in quantities of “RN-Years.” RN-Years do not apply to specific RN units; RN-Years is a measure of the total number of RNs deployed and the duration of the deployment. Each RN Year provides for the availability of SMS Services for one RN for twelve (12) months.  Your access and use of the TCS is expressly limited to the purposes and functions described in this Agreement.  The Company will provide the TCS in accordance with and subject to the terms and conditions of this Agreement.

1.2     The Company provides purchasers of RNs with access to the Company’s mobile device application (the “App”), which enables them to set up and install the RNs.  You may download the App from the applicable app store or the Company web site (if applicable), and install and use it subject to the terms and conditions of the Company’s Mobile Application End User License applicable to the App, to which you must agree at the time you download the App.   

 

2.     AUTHORIZED USERS

2.1     In order to use the TCS for an RN and its associated BN, You must register that BN and RN with the TCS, by supplying the BN and RN serial number and such other information as the Company may request.

2.2.    You must provide the Company with the names of the persons who are authorized by You to use the TCS on Your behalf (“Authorized Users”), and the user category of each Authorized User, which categories currently consist of NOC L1 User, NOC Operator, and Operator Admin.  Each category of user has the powers and access level described in the documentation relating to the TCS.  The Company reserves the right to place reasonable limits on the total number of Authorized Users You may designate, and the number of concurrent Authorized Users.  The unique login credentials for each Authorized User are for the named individual only and cannot be shared or used by more than one person.

2.3     The TCS may only be accessed and used by Authorized Users who have agreed to abide by the terms of this Agreement and who may only access and use the TCS for the purposes of performing their job functions for You.  You agree that You are responsible for the use of the TCS by Your Authorized Users, and their compliance with this Agreement, and for all activities under your TCS account.  

2.4     You may change or replace Authorized Users at any time by following the procedure on the website through which the TCS is accessed.

 

3.     USE OF THE TCS

3.1     You agree that you will not, and Your Authorized Users will not: (1) use the TCS other than as authorized in this Agreement; (2) resell, sublicense, or otherwise make the TCS available to any third party; (3) use the TCS either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the integrity or performance of the TCS or any websites or web-based applications; (5) deactivate, impair, or circumvent any security or authentication measures of the TCS or any websites or web-based applications; (6) access the TCS for purposes of monitoring its performance or functionality, or for purposes of developing a similar service; or (7) authorize any third parties to do any of the above.

4.     APIs; EMBEDDED SOFTWARE

4.1     As part of the TCS, You will have access to certain APIs and accompanying documentation relating to the TCS and the Products, as may be updated by the Company from time to time (“APIs”).  The Company grants you a limited, non-exclusive, non-assignable, non-transferable license under the Company’s intellectual property rights, during the Term, to use the APIs to link or integrate the operation of the Products to Your billing systems or other applications.  You agree not to distribute or allow any third party to have access to the APIs.  The application(s) with which you integrate the operation of the Products are limited to applications used by You for Your internal business purposes.  You agree not to use the APIs in a manner that, as determined by the Company in its sole discretion, exceeds reasonable request volume or otherwise constitutes excessive or abusive usage.  The Company may limit the number of network calls that your applications may make via the APIs, or anything else about the APIs as the Company deems appropriate in its sole discretion.

4.2     The Products may include firmware and software embedded or installed in the Products (“Embedded Software”).  You acknowledge and agree that (a) the Company and its licensors own all worldwide right, title and interest in and to the Embedded Software, including all worldwide intellectual property rights therein, and (b) unless you have entered into a separate written agreement with the Company granting you a license to use the Embedded Software, Your rights to use the Embedded Software are as provided in the Company’s Embedded Software License Agreement, that can be found at www.taranawireless.com/embedded-software-license.

 

5.     REPORTS; CUSTOMER DATA & SECURITY 

5.1     The TCS will provide You with certain information, analytics, and reports regarding the configuration, operation, and performance of the Products (“Reports”).  You may access, view, and use the Reports only for Your internal business purposes, in connection with Your use of the Products.

5.2     Any information, data, pictures or other material that you upload or submit to the TCS, through the App or otherwise (“Customer Data”) may be accessed and used by the Company during the Term as necessary to provide You with the TCS, to resolve technical issues relating to the Products, or as otherwise required by law.  You retain all ownership and intellectual property rights in and to Customer Data.  The Company assumes no responsibility for the content of Customer Data.  You represent and warrant that You have the legal right and authority to provide all Customer Data to the Company and that the Company’s use of any Customer Data will not violate the intellectual property or other rights of any third party, violate any applicable laws or regulations, or cause a breach of any agreement or obligation between You and any third party.  The Company will have no responsibility to verify Customer Data, including its source or accuracy. You acknowledge that operation of the TCS does not require entry of personally identifiable information, and you agree not to enter personally identifiable information in the TCS.

5.3     The Company will maintain (and will require its third party service providers to maintain) reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of the Customer Data, in accordance with applicable industry standards.

5.4     The Company will process Your Customer Data only as permitted under this Agreement, in compliance with applicable data protection laws to which the Company is subject, and in compliance with the Company’s Privacy Policy posted on the Company’s website.

5.5     The Company will follow its standard archival procedures for Customer Data.  In the event of any loss or corruption of Customer Data, the Company will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup maintained by the Company in accordance with its standard archival procedure.  You acknowledge that it is Your responsibility to back up and store all Customer Data and the Company will not be responsible for any loss or destruction, or corruption of Customer Data.  THE COMPANY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 5.5 CONSTITUTE THE COMPANY’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.

5.6     Telemetry, events and alarms relating to Your use of the TCS will be retained and stored by the Company for a period of fifteen (15) months after they were generated, and may then be deleted.

6.     CONFIDENTIALITY

In connection with the performance of this Agreement, each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as being confidential, or that is of a nature such that the receiving party should otherwise reasonably understand it to be confidential (“Confidential Information”).  Customer Data is Your Confidential Information.  Company Confidential Information includes, without limitation, the TCS (including the APIs), the Reports, the App, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the TCS or the App.  The receiving party agrees to take reasonable precautions to protect such Confidential Information, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement and to not disclose (without the disclosing party’s prior authorization) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement).  Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, or (2) was in its possession or was known prior to receipt from the disclosing party, or (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party.  The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).

7.      TERM AND TERMINATION

7.1     The term of this Agreement (the “Term”) will continue as long as You have purchased SMS Services that remain in effect. 

7.2     Without limiting other available remedies, the Company reserves the right to suspend or disable Your access to the TCS and the App when SMS Services are no longer in effect for You.  The Company also reserves the right to suspend or disable access to the TCS, as to any or all RNs and their associated BNs, and the App, if the Company determines, in its discretion, that: (a) Your use of the TCS or the App disrupts, harms, or poses a security risk to the Company or to any other customer, or may cause harm to the Company’s systems, the TCS or any third party service provider; or (b) You have used, or are using, the TCS or App in breach of this Agreement.  

7.3     Either You or the Company may terminate this Agreement with written notice if the other party breaches a material term of this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.  

7.4     You may also terminate this Agreement without cause, at any time on notice to the Company.

7.5     Upon termination of this Agreement, Your right to access and use the TCS and the App will terminate.  In connection with any termination of this Agreement, the Company will not be required to refund to You any SMS Fees paid by You, and all accrued payment obligations will continue.  The Company will have no liability for any costs, losses, damages, or liabilities arising out of or related to the Company’s exercise of its termination rights under this Agreement.  The obligations and provisions of Sections 5 through 13, and any other obligations of a continuing nature, will survive any termination of this Agreement.  

8.     SMS FEES

8.1     The SMS Fees payable by You, and related payment terms, are as set forth in the Company’s published price list, or as may be otherwise set forth in a separate written agreement between You and the Company.  Except as otherwise provided in Section 12.1, all payment obligations are non-cancelable and once paid are nonrefundable.  All SMS Fees will be paid without the right of setoff or counterclaim, and without deduction or withholding.  If You are required by applicable law to make withholdings from amounts payable to the Company, the amount payable to the Company will be grossed up so that, after such withholdings, the Company receives the full SMS Fees quoted.

9.     OWNERSHIP RIGHTS

9.1     The Company and its licensors own all worldwide right, title and interest in and to the TCS and the App (as the TCS and/or the App may be implemented, configured or modified from time to time), and the Reports (except to the extent the Reports consist of or incorporate Customer Data), including all worldwide intellectual property rights therein (collectively, the “Company IP”).  You own all Customer Data.  This Agreement does not convey any proprietary interest in or to any Company IP or any Customer Data or rights of entitlement to the use thereof except as expressly set forth in this Agreement.  You grant the Company the right to use Your company name (and corresponding trademark or logo) on the Company’s website and marketing materials to identify You as a customer; provided, however, that the Company will discontinue any such use to which you object, by notice to the Company.  

9.2     If You or any Authorized Users provide any ideas, suggestions, or recommendations regarding the TCS or the App  (“Feedback”), the Company will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind.  By providing Feedback, You grant the Company a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit that Feedback in any manner.

9.3     The Company may collect anonymous usage data with respect to the use and performance of the TCS and the App (“Usage Data”).  The Company will own the rights to Usage Data and may use Usage Data for internal business purposes, such as improving, testing and providing the TCS or the App and developing additional services.  The Company may disclose Usage Data in aggregate form (i.e., aggregated from multiple customers’ use of the TCS and the App, but which does not identify You or any Authorized User) for promotion, statistical analysis, market analysis, financial analysis, and other such purposes.

10.     UPTIME; SUPPORT; WARRANTY

10.1     The Company will use commercially reasonable efforts to make the TCS available for Your use 99.99% of the time during the Term.  For these purposes, the duration of unavailability of the TCS attributable to the following causes will not be counted as downtime: (i) scheduled maintenance of the TCS; (ii) issues relating to services, equipment, software, or technology other than those of the Company, including but not limited to those of the vendor engaged by the Company to host the TCS; (iii) Your own acts or omissions, or those of a third party; (iv) any other factors outside of the Company’s reasonable control, including force majeure events such as labor disputes, strikes, lockouts, war, terrorism, pandemic, riots, or acts of God.  The Company will use reasonable efforts to notify You in advance of any scheduled maintenance of the TCS that the Company expects to result in unavailability of the TCS. From time to time, in addition to scheduled maintenance, the vendor engaged by the Company to host the TCS may implement emergency updates, which could result in unavailability of the TCS of which the Company may not be able to notify You in advance.

10.2     During the Term, the Company will provide You with technical support services relating to the use and operation of the TCS and the App, error correction services, and updates to the TCS and the App, according to the terms and conditions set forth in a separate written agreement between You and the Company.

10.3     You assume sole responsibility and liability for results obtained from the use of the TCS and the App.  EXCEPT AS EXPRESSLY PROVIDED IN A SEPARATE WRITTEN AGREEMENT SIGNED BY YOU AND THE COMPANY, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE TCS OR THE APP.  WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SUCH A SEPARATE WRITTEN AGREEMENT, THE COMPANY DISCLAIMS ANY WARRANTY THAT THE TCS OR THE APP WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  THE COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE TCS OR THE APP AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  THE COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES.

 

11.     LIMITATION OF LIABILITY

IN NO EVENT WILL THE COMPANY AND ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE TCS OR THE APP, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE TCS OR THE APP, OR FOR ANY INFORMATION OR DATA TRANSMITTED OR OBTAINED FROM OR THROUGH THE TCS OR THE APP, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.  IN NO EVENT WILL THE TOTAL LIABILITY OF THE COMPANY AND ITS LICENSORS FOR ANY CLAIM RELATING TO THE TCS EXCEED THE SMS FEES PAID BY YOU FOR USE OF THE SMS SERVICES FOR ONE RN-YEAR TIMES THE NUMBER OF RNs GIVING RISE TO SUCH CLAIM.

12.     INDEMNIFICATION

12.1     The Company will: (1) defend You against any third party suit, claim, action or demand (a “Claim”) alleging that the TCS infringes any copyright or trademark or misappropriates a trade secret of a third party; and (2) indemnify and hold You harmless from any final award of damages or settlement amount arising in connection with any such Claim.  In the event the Company’s right to provide the TCS is enjoined or in the Company’s reasonable opinion is likely to be enjoined, the Company may obtain the right to continue providing the TCS, replace or modify the TCS so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement and refund to You any SMS Fees that You have paid for RN-Years not yet consumed as of the date of termination, but without further liability to You.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF THE COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE TCS.  The Company shall have no liability under this Section 12.1 to the extent that any third-party claims described herein are based on use of the TCS in a manner that violates this Agreement or the instructions given to You by the Company, or use of the TCS in combination with hardware, software, processes or other items not provided by the Company, where the TCS or the App alone would not infringe.

12.2     You will: (1) defend the Company, and its officers, directors and employees, against any Claim arising out of or related to (a) any injury, damage or loss resulting from Your use of the TCS (other than any claim for which Company is responsible under Section 12.1), (b) use of the TCS by You in a manner that violates this Agreement, or (c) the Company’s use of the Customer Data in accordance with this Agreement; and (2) indemnify and hold the Company harmless from any final award of damages or settlement amount arising in connection with any such Claim.

12.3     The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

13.     GENERAL

13.1     You and the Company are independent contractors, and no agency, partnership, association, joint venture, or other relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.  

13.2     This Agreement is governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby consent to personal jurisdiction and venue therein.  If any portion of this Agreement is found to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. 

13.3     Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent.  Notwithstanding the foregoing, either party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, may assign this Agreement in its entirety to such party’s successor without the other party’s consent. Any attempt to assign this Agreement other than as permitted above will be null and void.  

13.4     Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

13.5     All notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery services, by certified mail, or by email.  All notices will be deemed given upon receipt.  All notices to You will be sent to the address or email address specified in Your account registration, or to such other address or email addresses as You may specify in accordance with this Section.  All notices to the Company will be sent to the address or email address posted in the TCS, or to such other address or email addresses as the Company may specify in accordance with this Section.

13.6     This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to this subject matter.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.

13.7     The Company reserves the right to make changes to this Agreement, and the TCS, from time to time, with or without notice (including but not limited to changes to infrastructure, software updates, and configuration changes).  Any changes to this Agreement will be effective when posted by the Company to this site.  The Company will use reasonable efforts to notify you of changes to this Agreement, or of material changes to the TCS.