This License Agreement was last updated on 01/21/2022 and replaces all applicable prior versions in its entirety. 

 

OOKLA, LLC AND/OR ITS AFFILIATES LICENSING THE WINd® SYSTEM (“OOKLA”) IS WILLING TO LICENSE THE WINd® SYSTEM TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE USING THE PRODUCT (REFERENCED BELOW AS “YOU” OR “CUSTOMER”) ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT MADE AVAILABLE AT THE TIME OF YOUR ORDER OR A QUOTE ISSUED BY OOKLA (COLLECTIVELY THE “AGREEMENT”).

 

PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. THIS LICENSE IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND OOKLA.  ISSUING A PURCHASE ORDER IN ACCEPTANCE OF A QUOTE CONTAINING A LINK TO THIS AGREEMENT, DOWNLOADING, INSTALLING, AND/OR USING WINd® SYSTEM CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON OR LEGAL ENTITY TO THIS LICENSE. YOU MUST ENSURE THAT YOUR END USERS COMPLY WITH THIS AGREEMENT AND ARE RESPONSIBLE FOR END USERS’ COMPLIANCE WITH OR BREACH OF THIS AGREEMENT.

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TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT OR QUOTE ISSUED BY OOKLA, THE SUPPLEMENTAL LICENSE AGREEMENT OR QUOTE ISSUED BY OOKLA, AS APPLICABLE, SHALL APPLY.  Except as expressly stated or as expressly amended in a signed agreement entered into between Ookla and You, the Agreement constitutes the entire agreement between the parties and supersedes any conflicting or additional terms contained in any Purchase Order or elsewhere, all of which terms are excluded, regardless of any statement contained in the Purchase Order or elsewhere to the contrary.

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FOR PURPOSES OF THE AGREEMENT, “WINd® SYSTEM” or “WIND® SYSTEM” SHALL MEAN THE LARGE-SCALE WIRELESS NETWORK OPTIMIZATION TEST, CONTROL, AND DATA STORAGE SYSTEM AND CERTAIN PROPRIETARY SOFTWARE FOR USE IN CONNECTION WITH SUCH SYSTEM (WIND® SOFTWARE) THAT OOKLA MARKETS UNDER THE NAME “WINd®”, AND ANY UPGRADES, UPDATES, BUG FIXES OR MODIFIED VERSIONS THERETO (COLLECTIVELY, “UPGRADES”), OR BACKUP COPIES OF ANY OF THE FOREGOING.

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1. LICENSE GRANT

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1.1. Conditioned upon compliance with the terms of the Agreement and payment of the applicable fees, Ookla hereby grants to Customer a nonexclusive, non-sublicensable, nontransferable, non-assignable worldwide license to the WINd® System, including the WINd® Software, for Customer’s internal use only for the license term set forth in an ordering document, up to the maximum number of licenses agreed to, invoiced to, and paid for by Customer. Customer may install and use the WINd® Software only on the Data Collection Units and WINd® Consoles specified on the applicable Purchase Order.

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1.2. Customer shall not, and shall not allow any third party to: (a) use the WINd® System, except by Authorized Users and except on the Data Collection Units and WINd® Consoles expressly authorized; (b) use the WINd® System, except for purposes for which it is being made available as set forth in this Agreement; (c) create programs that perform the same functions as the WINd® System or that are based, in whole or in part, on the WINd® System; (d) modify, adapt, create derivative works based on, translate, reverse-engineer, reverse-compile, destroy or otherwise disassemble the WINd® System or WINd® Software; (e) alter, change, or remove any proprietary notices, labels, or identifications, including but not limited to any copyright or trademark notices from the WINd® Software; (f) publish any results of testing run on the WINd® System; (g) distribute, sell, rent, lease, or otherwise provide or disseminate all or any part of the WINd® System to any third party; (h) disclose, provide, or otherwise make available trade secrets contained within the WINd® Software and Documentation in any form to any third party without the prior written consent of Ookla; (i) transfer, sublicense, or assign Customer’s rights (in whole or in part) under this Agreement to any other person or entity unless expressly authorized by Ookla in writing; (j) engage in any licensing, selling, leasing, lending, sublicensing, transferring or redistributing of the WINd® Console, WINd® System or WINd® Software to third parties, in whatever medium, in whole or in part;(k) use the WINd® Console, WINd® System or WINd® Software to store or transmit malicious code; or (l) engage in any action which modifies, falsifies, misrepresents, alters or interferes with the WINd® Console, WINd® System or WINd® Software.

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1.3. Conditioned upon compliance with the terms of the Agreement, Ookla hereby grants Customer a nonexclusive, nonsublicensable, nontransferable, nonassignable worldwide license to duplicate and use the Documentation in connection with Customer’s use of the WINd® System, but only for Customer’s own internal use. No other duplication or use is permitted, unless expressly approved in writing by Ookla prior to such duplication or use.

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1.4. During any Services Period that Customer has paid for Support Services and Data Services, Customer may transfer each license of the WINd® Software, upon prior written notice to Ookla, to a different Data Collection Unit or WINd® Console one time during each calendar year without an additional fee. Customer’s notice to Ookla shall indicate the license being moved, including the new Data Collection Unit or WINd® Console and the Data Collection Unit or WINd® Console that is being decommissioned. Use of the WINd® System on Data Collection Units or WINd® Consoles not licensed or otherwise authorized by Ookla constitutes a breach of this Agreement.

 

1.5. DEVICE SUNSET POLICY allows for Support Services for three (3) most recent generations of handsets at any given time (e.g. S10, S9, S8) with a(n) current/active Annual Maintenance and Support (“AMAS”) plan. Once a device is no longer supported, applicable AMAS will not be charged. Customer will have one (1) year from the date that the device is declared unsupported to upgrade devices and receive a one-time only credit for past license purchase(s) that are currently active at the time of upgrade. If the Customer’s AMAS plan has expired, all Support Services and Data Services cease as of the expiration date of their most recent paid AMAS plan and Ookla is released from responsibility to provide Support Services and Data Services, as well as, no longer obligated to or held responsible for the ongoing functionality, performance, and/or maintenance of the WINd® Software.

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1.6. Notwithstanding any other provision of this Agreement, no license or right is granted to Customer pursuant to this Agreement, whether by implication, estoppel or otherwise, except the licenses and rights expressly granted in this Section 1.

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2. LICENSE FEES; RENEWAL FEES, SUBSCRIPTION PACKAGES, UPGRADES, AND ADDITIONAL COPIES

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2.1. Customer will pay Ookla a License Fee or purchase a Subscription Package for each license of the WINd® System licensed by Ookla to Customer, including any Renewal Fees for Support Services and Data Services, fees for Upgrades, and fees other services, as set forth in the Purchase Order(s).

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2.2. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL WIND® SYSTEM AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO A DATA COLLECTION UNIT OR WIND® CONSOLE FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR OTHERWISE HOLDS A VALID LICENSE TO USE THE WIND® SYSTEM WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY. If Customer wishes to obtain any Upgrades to the WINd® System, or additional services, Customer will need to execute a Purchase Agreement listing the service(s) and pay the applicable fees.

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3. DATA SERVICES

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3.1. During any Services Period, and except as otherwise set forth in this Agreement or a Purchase Agreement, Customer has the non-exclusive, non-assignable, worldwide limited right to access and use the Data Services. Upon the end of the Services Period, Customer’s right to access and use the Data Services will terminate; however, for a period of up to 60 days after the end of the applicable Services Period, Ookla will make available Customer’s Test Data then in the WINd® Server for the purpose of retrieval by Customer. At the end of such 60 day period, and except as may be required by law, Ookla will delete or otherwise render inaccessible any of Customer’s Test Data that remains on the WINd® Server.

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3.2. The Data Services are subject to and governed by Ookla’s WINd® Support and Data Services Policy adopted and modified from time to time. Such Policy may define provisioning and management processes applicable to the Data Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the WINd® System, as well as any Data Services. Customer acknowledges that use of the Data Services in a manner not consistent with the WINd® Support and Data Services Policy may adversely affect Data Services performance and/or may result in additional fees. To enable Ookla to provide the Data Services and for internal product development and improvement, Customer grants Ookla the right to use, process and transmit, in accordance with this Agreement, Customer’s Test Data.

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3.3.Ookla may make changes or updates to the Data Services and the WINd® Support and Data Services Policy (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, and patterns of system use.

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3.4. Ookla may temporarily suspend Customer’s access to or use of the Data Services if Customer or its Authorized Users violate this Agreement or the WINd® Support and Data Services Policy. Ookla may terminate the Services if any of the causes of suspension is not cured within 30 days after Ookla’s initial notice thereof.

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4. DISCLAIMER OF WARRANTIES

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4.1 EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH IN THIS AGREEMENT, OOKLA, ITS AFFILIATES AND ITS LICENSORS PROVIDE THE WIND® SYSTEM, WIND® SOFTWARE, AND ASSOCIATED DOCUMENTATION “AS IS” AND EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE, AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTIES, CONDITIONS OR OTHER TERMS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PEROFRMANCE, SATISFACTORY QUALITY, SECURITY, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN ADDITION, OOKLA SPECIFICALLY DISCLAIMS ANY WARRANTIES WITH REPSECT TO EQUIPMENT OR GOODS NOT SUPPLIED BY IT THAT ARE UTILIZED BY CUSTOMER IN CONNECTION WITH THE WIND® SYSTEM.

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4.2.OOKLA DOES NOT GUARANTEE THAT (A) THE WIND® SYSTEM AND DATA SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT OOKLA WILL CORRECT ALL SERVICES ERRORS, (B) THE WIND® SYSTEM AND DATA SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY OOKLA, AND (C) THE WIND® SYSTEM AND DATA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGE THAT OOKLA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. OOKLA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. OOKLA IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE DATA SERVICES.

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5. RETENTION OF RIGHTS & OWNERSHIP

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5.1. Customer acknowledges and agrees that, subject to the licenses granted herein, Ookla shall retain ownership of all title and all rights in and to the WINd® Console, WINd® System and WINd® Software, including without limitation, all intellectual property rights therein, including all copyrights, trade secrets, patent rights, trademarks, service marks, and related goodwill, to the WINd® System, the WINd® Software, Documentation, and related materials that are provided by Ookla to Customer. Customer’s rights to use the WINd® Console, WINd® System and WINd® Software are limited to those expressly granted by this Agreement.  Ookla reserves all rights not expressly granted to Customer herein.  The license grant shall not be deemed to result in the sale, transfer or any other conveyance of Ookla’s trademarks or any other intellectual property right of whatsoever nature held or used by Ookla to Customer. Customer acknowledges that the WINd® System, WINd® Software and Documentation contain trade secrets of Ookla or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Customer shall implement reasonable security measures to protect such trade secrets. Customer agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the WINd® System in the same form and manner that such copyright and other proprietary notices are included on the WINd® Software and Documentation. Except as expressly authorized in the Agreement, Customer shall not make any copies or duplicates of any WINd® Software without the prior written permission of Ookla.

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5.2. The WINd® Software may be reproduced by Customer only for back-up or archival purposes for the duration of this Agreement, and as otherwise allowed under this Agreement. Customer agrees to maintain accurate records of the number and location of all copies of the WINd® Software in its possession or control (including back-up or archival copies). Upon reasonable request by Ookla, Customer will provide to Ookla a written, signed statement that (a) identifies the location of each copy of the WINd® Software and (b) confirms that the WINd® System is not being used in violation of this Agreement. Ookla may, upon reasonable request and not more than once annually, audit Customer’s use of the WINd® System to confirm Customer’s compliance with this Agreement. If such audit reveals that the WINd® System is being used in violation of this Agreement, Customer shall reimburse Ookla for the cost of the audit in addition to all other remedies available to Ookla, including the payment of applicable license fees.

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5.3. Nothing in this Agreement shall prohibit Ookla, or any third party at Ookla’s discretion, in any manner from making, using, modifying, developing, copying, manufacturing, embedding, incorporating, integrating, selling, distributing, marketing, licensing, or otherwise disposing of the WINd® System or concepts embodied therein for itself or to any third party for any application anywhere in the world; and under no circumstances shall this Agreement be construed to prohibit Ookla, or any third party at Ookla’s discretion, from engaging in any of the foregoing acts concerning any device that incorporates the WINd® Software; nor shall anything herein be construed to grant to Customer any rights in or to any other present or future products of Ookla, whether or not similar to the WINd® System. Ookla shall own all intellectual property rights, including all copyrights in modifications made by it or by Customer to the WINd® System or the WINd® Software.

 

5.4 By providing Ookla any feedback or ideas, suggestions, recommendations, modifications or improvements of the Software or Documentation (“Feedback”), Customer and/or its authorized user, by choosing to disclose such a proposal to Ookla, grant Ookla all title and ownership and all intellectual property rights to such Feedback. Ookla is free to use and incorporate such Feedback in Ookla’s services or technology, without payment of royalties or other consideration to Customer or liability of any kind.

 

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6. CONFIDENTIALITY

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6.1.. By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). Confidential information shall be limited to the terms and pricing under this agreement, all information clearly identified as confidential and as further defined in Section 12.

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6.2. Furthermore, Confidential Information does not include any of the following: (a) information that has become generally available to the public, through no fault of the other party and that is not still regarded as a trade secret under applicable law; (b) information that the receiving party had already obtained in a tangible form, through lawful means, before obtaining it under this agreement; (c) information that the receiving party developed independently, without the use of any materials or information obtained from the other party in connection with this agreement; (d) information that the receiving party has lawfully obtained, in a tangible form, from a third party that had the right to provide it to the receiving party; or (e) information that the disclosing party releases for publication in writing.

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6.3 If a Party is required or requested to disclose Confidential Information of the other Party or the terms of this Agreement by law, regulation, legal process or securities exchange rules, such Party shall promptly notify the other Party to the extent legally permitted and, if requested by the other Party, use commercially reasonable efforts to cooperate at the expense of the other Party in any reasonable and lawful actions which the other Party takes to resist such disclosure or limit the information to be disclosed.

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6.4. Neither Party shall use Confidential Information of the other Party for any purpose other than for the purpose of providing or using the Services or as otherwise expressly permitted in this Agreement. Each Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors, consultants and agents who need that access for purposes consistent with this Agreement and who have confidentiality agreements with the Receiving Party containing protections no less protective of the Confidential Information than those herein.

 

6.5 Ookla and Customer each agree to hold each other’s confidential information in confidence for not less than the term of this Agreement and for a period of three (3) years thereafter.

 

7. REPRESENTATIONS AND WARRANTIES

7.1. Ookla and Customer each represent and warrant to the other that: (i) it shall perform its obligations and exercise its rights under this Agreement in accordance with all applicable laws; (ii) it has full power and authority to execute and deliver this Agreement, to grant the licenses granted under this Agreement, Purchase Order or other associated documentation, and perform its obligations hereunder; (iii) neither the execution and delivery of this Agreement nor the consummation and performance of this Agreement conflicts with or violates any agreement to which it is bound or any applicable law, rule or regulation; and (iv) it shall comply and shall cause its personnel to comply with the confidentiality, privacy and security obligations and all other sections set out in this Agreement.

 

8. LIMITATION OF LIABILITY

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8.1. IN NO EVENT SHALL OOKLA, ITS AFFILIATES, OR ITS LICENSORS BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OR CORRUPTION OF DATA OR INTERRUPED OR LOSS OF BUSINESS, GOODWILL, CAPITAL, AND COSTS INCURRED IN NNECTION WITH SUBSTITUTE SOURCES, EVEN IF OOKLA IS NOTIFIED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OOKLA, ITS AFFILIATES, OR ITS LICENSORS’ TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO OOKLA UNDER THIS AGREEMENT.

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9. INDEMNIFICATION

 

9.1 Ookla will have no liability for, and Customer will defend, indemnify, and hold harmless Ookla and its subsidiaries, affiliates, officers and employees from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party arising from: (a) Customer’s use of an unlicensed or unsupported version or copy of the WINd® Software; (b) the combination, operation, or use of the WINd® System licensed under this Agreement with software, data, equipment, or networks not provided, approved, or authorized in advance by Ookla; (c) use of the WINd® System if the WINd® Software is modified in any way by any party other than Ookla without Ookla’s prior written consent;  (d) Customer’s use of the WINd® System other than expressly permitted under this Agreement; and (e) breach by Customer of its representations, warranties, or obligations contained in this Agreement. This indemnification obligation of Customer is subject to Ookla: (i) notifying Customer promptly in writing of the claim; (ii) giving Customer the exclusive control of the defense and settlement thereof; and (iii) reasonably cooperating with Customer for the defense of the claim if required.

 

​9.2. Ookla will defend, indemnify, and hold harmless, Customer and its subsidiaries, affiliates, officers and employees from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any a third party arising from or alleging the WINd® System, WINd®  Software, or other licensed products provided by Ookla to Customer infringes a copyright, patent, or other intellectual property right of a third party. This indemnification obligation of Ookla is subject to Customer: (i) notifying Ookla promptly in writing of the claim; (ii) giving Ookla the exclusive control of the defense and settlement thereof; and (iii) reasonably cooperating with Ookla for the defense of the claim if required.

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9.3. In the event the use of the WINd® System becomes, or in Ookla’s reasonable opinion is likely to become, the subject of a claim of infringement under Section 9.2, Ookla may, at its sole option and expense: (a) obtain the continuing right to use the WINd® System; (b) modify the WINd® System or Documentation or replace it so that it no longer infringes; or, if neither (a) nor (b) is reasonably practicable, (c) terminate the license with respect to the allegedly infringing license of the WINd® System and provide Customer with a prorated refund for the remaining period of such license.

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9.4. This Section 9 represents Ookla’s entire liability and Customer’s exclusive remedy with respect to the WINd® System.

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10. TERM AND TERMINATION

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10.1. This Agreement and the license granted herein shall remain in effect until terminated or until the expiration of the Services Period. Upon termination or expiration, Customer shall destroy or return all copies of WINd® Software and Documentation in its possession or control. The provisions of this Agreement shall survive expiration or termination of this Agreement.

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10.2. Failure by either party to comply with any of its obligations hereunder (including payment obligations) shall entitle the other party to give notice to the defaulting party requiring it to cure such default, to the extent such default is curable. If such default is not cured within thirty (30) days from receipt of such notice, or after thirty (30) days if such default is not fully curable within thirty (30) days, the notifying party shall be entitled, without prejudice to any of its other rights under this Agreement or permitted by law, to terminate this Agreement by giving notice to take effect immediately. Either party may, without prejudice to any of its other rights under this Agreement or by law, terminate this Agreement and any licenses to use the WINd® System upon the occurrence of any of the following events: (i) either party, its parent, or any of its principal owners becomes insolvent or is the subject of a bankruptcy or other insolvency proceeding; or (ii) either party or any of its representatives intentionally makes a material misrepresentation in connection with this Agreement, or performing any other responsibilities under this Agreement. In addition to the foregoing Ookla may, without prejudice to any of its other rights under this Agreement or by law, terminate this Agreement and any licenses to use the WINd® System issued under this Agreement upon giving notice to Customer where Customer’s assets or equity securities are the subject of an acquisition by any third party (including any governmental body) other than the present owner, or Customer’s assets or equity securities come under the direct or indirect control by any such third party.

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10.3. Upon the effective date of termination or expiration of this Agreement for any reason, Customer’s rights with respect to the WINd® System, WINd® Software, Documentation, and other materials shall immediately cease and all amounts which are or may be payable by Customer to Ookla shall become immediately due and payable.

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11. GENERAL PROVISIONS

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11.1. This Agreement is personal in its nature and is therefore not assignable, in whole or in part, by Customer without the prior written consent of Ookla. Ookla may assign this Agreement to (i) any Affiliate of Ookla; (ii) an acquirer of all or substantially all of the assets or equity of Ookla; or (iii) in connection with a reorganization or merger.

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11.2. If either party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its control, including but not limited to war, civil insurrection, fire, flood, explosion, accident, or shortage of material, equipment, or transportation, then the performance of the obligations of such party shall be excused during the continuance of any inability so caused, provided that the party affected shall give prompt notice to the other party, shall use its best efforts to avoid or remove such causes, and shall continue performance hereunder whenever such causes are removed or settled.

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11.3. Any notice required under this Agreement shall be given in writing. All notices by mail shall be by certified or registered mail, return receipt requested, or by nationally recognized private express courier, fees pre-paid, and shall be deemed complete upon receipt. Notices sent by e-mail shall be deemed complete upon receipt. In the case of notices to Ookla, a copy shall be sent to Ziff Davis, LLC, 114 5th Avenue, 15th Floor, New York, New York, 10011, Attn: Legal Department, or by email to legal@ziffdavis.com.

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11.4. This Agreement, all applicable Purchase Agreements, and related documents are the entire agreement between the parties and supersede and shall be substituted for each and every agreement between Customer and Ookla with respect to the subject matter hereof. No modification of this Agreement will be effective unless contained in a writing signed by an authorized representative of each party or otherwise accepted online by authorized representatives.

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11.5. The relationship between Ookla and Customer is, and during the term hereof, that of vendor and vendee, and not as agents or joint venturers. Each party and its employees and agents shall not be the legal representatives, employees, or agents of the other party for any purpose and shall have no right or authority to assume or create, whether in writing, orally, or otherwise, any obligation of any kind, express, or implied, in the name of or on behalf of the other party. Each party shall make no representations inconsistent with the foregoing.

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11.6. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

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11.7. No failure to exercise, or delay in exercising, any right hereunder on the part of either party hereto shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof, or the exercise of any other right hereunder.

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11.8. This Agreement shall be governed by the internal laws of the State of New York without reference to conflict of law principles which would result in the application of laws of another jurisdiction. Each party submits to personal jurisdiction in New York and further agrees that any action relating to this Agreement shall be brought in the state and federal courts sitting in New York County, New York. The prevailing party in any action hereunder shall be entitled to recover court costs and reasonable attorney’s fees, in addition to any other relief to which the party is entitled.

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11.9. The WINd® System and Documentation are subject to export controls under the laws and regulations of the United States and any other applicable countries’ laws and regulations. Customer shall comply with such laws and regulations governing export, re-export, import, transfer and use of the WINd® System and Documentation and will obtain all required federal and local authorizations, permits, or licenses.  You agree that the WINd® System will not be shipped, transferred or exported into any country or to anyone: (i) which the EU, U.S or UN has embargoed goods; or (ii) where the national legislation of the relevant EU Member State has embargoed goods; or (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; or (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the WINd® System, You represent that You are not located in, under the control of, or a national or resident of any such country or on any such list and You take full and sole responsibility for such use.

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11.10. The WINd® System may contain or be delivered with one or more components, which may include third-party components, identified by Ookla in the Documentation, readme.txt file, third-party click-accept or elsewhere (e.g. on www.Solutelia.com) (the “Identified Component(s)”) as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. Customer agrees to the applicable Additional Terms for any such Identified Component(s).

 

 

11.11. During the license term, Customer agrees that Ookla and its affiliates may include its trademark and trade name in their printed and/or electronic marketing materials and/or customer lists.

 

11.12. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. 

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12. DEFINITIONS

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As used herein, the following capitalized terms shall have the following meanings:

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“Agreement” means this WINd® License Agreement and all applicable Purchase Agreements, including exhibits and schedules thereto.

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“Confidential Information” of Ookla means (a) the WINd® System and WINd® Software, the Documentation; (b) design techniques and all ideas and information (such as algorithms, design rules, and design techniques) contained or embodied in the WINd® System and Documentation; (c) the prices, discounts, payment terms, and other information in the Purchasing Agreement with Customer; (d) training services materials including without limitation presentations, demonstrations, software and course handouts, and (e) any other confidential or proprietary information that Ookla provides to Customer in connection with this Agreement. Customer’s Confidential Information is any confidential or proprietary information in (i) written form that Customer provides to Ookla in order for Ookla to fulfill your orders and provide products and services to Customer under this agreement, and (ii) oral form that Customer provides to Ookla in order to receive Support Services; as long as Customer notifies Ookla at the time of disclosure that such information is to be treated as confidential under this agreement.

“Authorized User” means an individual who works for Customer as an employee or independent contractor and whom Customer designates and authorizes to access and use a WINd® Console or Data Collection Device as permitted by this Agreement.

 

“Data Collection Unit” means a smartphone or other hardware device used to collect wireless telecommunications testing information using the WINd® Software.

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“Data Services” means the cloud services offered by Ookla with respect to Customer’s Test Data stored on the WINd® Server, subject to the WINd® Support and Data Services Policy.

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“Documentation” means any electronic or written documentation provided by Ookla to Customer regarding the use, operation, function, or care of the WINd® System and WINd® Software.

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“License Fee” means the license fees payable by Customer to Ookla for use of the WINd® System as set forth in a Purchase Agreement. License Fees are either paid on an annual basis or a monthly subscription basis pursuant to a Subscription Package.

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“Purchase Order” means an executed document that specifies the WINd® System licenses, Support Services, Data Services, Upgrades, or other services to be purchased by Customer.

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“Renewal Fee” means a fee payable by Customer to Ookla for Support Services and Data Services following the expiration of a one-year period of an annual license for the WINd® System. Renewal Fees do not apply to Support Services and Data Services purchased with a Subscription Package.

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“Services Period” refers to the period of time for which Customer has ordered and paid for Support Services and Data Services.

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“Subscription Package” means the payment for license(s) of the WINd® System, Support Services, and Data Services on a monthly basis on such terms and conditions as may be agreed upon in a Purchase Agreement.

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“Support Services” shall mean the work done by Ookla in support of the WINd® System as set forth in Ookla’s WINd® Support and Data Services Policy.

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“Test Data” means all of Customer’s testing, data and material resulting from Customer’s use of the WINd® System that reside in, or run on or through, the WINd® Server.

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“Update” means, in respect of any software, a new version of such software or related Documentation that corrects errors in, or improves the performance of, the previously released version of such software, and shall mean, in respect of Documentation, a new version of such Documentation.

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“Upgrade” means, with respect to any software, a new version of such software that adds features or functionality which differs from the specifications of the previous version of such WINd® Software as set forth in the Documentation relating to such previous version.

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“WINd® App” means the application software component of the WINd® Software that is utilized on a Data Collection Device.

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“WINd® Console” means the customer’s consoles that utilize the WINd® Software to access data from the WINd® Server to view remotely the information and reports generated from the Data Collection Units.

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“WINd® Server” means the computer servers utilized as a centralized database repository for the storage and summary report generation of information collected from the Data Collection Units that also contains Ookla’s WINd® Software.

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“WINd® Software” means the current versions of the software marketed by Ookla under the name “WINd® and any Updates or Upgrades thereto, and includes the WINd® App and the WINd® Software utilized on WINd® Consoles. Ookla shall have the right to add additional software to the WINd® Software upon prior written notice to Customer.

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“WINd® Support and Data Services Policy” refers to that policy in Exhibit A hereto relating to Support Services and Data Services and is incorporated by reference herein in its entirety.

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“WINd® System” has the meaning set forth in the preamble.

 

 

 

Exhibit A

Ookla’s WINd® Support and Data Services Policy

 

Annual Maintenance and Support (AMAS) is only applicable to perpetual licenses. AMAS extends twelve (12) months from the date of original purchase. For subsequent years, the fees will be 20% of the total list price. AMAS will be eligible for renewal prior to expiration. Once Customer stops paying the applicable AMAS fee, Customer will no longer receive the benefits and AMAS can be reinstated only if fees are paid retroactively.

 

AMAS includes:

• Regular software updates (usually quarterly) and bug fixes

• Introductory web/phone based live training sessions

• Web/phone based technical support (8:00 AM to 8:00 PM EST,M-F)

• Continued access to cloud server for all log file uploads and real-time functions

• Free license transfer from an old device to new device for perpetual licenses (once a year)

• Upgrade device-locked license to perpetual license (at current rates)