SputnikNet Master Services Agreement

This Master Services Agreement ("Agreement") describes the terms and conditions pursuant to which Sputnik, Inc., a corporation located at 3020 Bridgeway, Sausalito CA 94965, hereafter referred to as Sputnik, shall provide certain SputnikNet Services (as defined below) to you ("Customer").

Definitions

"Account" means the account created by Customer, by registering or purchasing at sputnik.com, in order to access and receive the Service.

"Service" means software hosted by Sputnik on Sputnik-managed servers and made available to Customers over the Internet.

"Device" means the Sputnik-powered routers, access points, and gateways managed by Customer via its Account.

"Set-Up Fee" means the one-time, non-refundable fee paid by Customer to establish an Account.

"Recurring Fee" means the recurring monthly or annual fee paid by Customer for each authorized Device.

"Term" is the monthly or annual term of Service for each authorized device.

"Authorized User" means a user who connects to a network or the Internet through a Device.

"Service Interruption" means Customer's inability to gain access to the web-based administrative console of an active Account through a standard web browser with full access to Internet services.

"SputnikNet Express" means a subset of the Service that is made available to Customers over the Internet for free.

SputnikNet Express Service Disclaimer

As SputnikNet Express is provided free of charge, the following provisions do not apply: Billing, Service Cancellation, Term and Termination, Service Level Agreement, Resolution Objectives and Reporting, Exclusions, Remedies and Credits.

License, Ownership and Restrictions

Sputnik grants Customer a limited, non-exclusive, revocable, non-transferable right and license to (i) electronically access and use the Service and (ii) allow Authorized Users to authenticate onto networks and the Internet through Devices.

Sputnik owns the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world associated with the Service, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. Except as expressly and unambiguously provided herein, Sputnik does not grant Customer any express or implied rights and all rights in and to the Service are retained by Sputnik.

Customer may not modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Service. Customer also agrees that it will not use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape or copy, monitor or index any portion of the Service.

Customer Account

Customer must create an Account and provide current and accurate identification, contact and other information in order to access and use the Service.

Billing

The Set-Up fee is due and payable upon establishing an Account. Recurring Fees for the Service must be pre-paid for each Term. The Set-Up Fee and Recurring Fee prices are published on sputnik.com and are subject to change without notice. Customer will pay all sales and use taxes incurred by Customer arising from Customer use of the Service.

Service Cancellation

Customer may deauthorize a Device or cancel an Account at any time by using Account management tools available in the Service web interface. Recurring Fees for the Term in which the Service is cancelled will not be refunded. Recurring Fees for subsequent Terms will not be billed. If all Devices for an Account are deauthorized, Sputnik may delete the Account from its servers within thirty (30) days. Refunds for returned hardware, less any applicable restocking fees, are subject to Sputnik's return policies, which are published on sputnik.com.

Term and Termination

The Term for the Service shall automatically renew at Sputnik's then-current monthly or annual rates, unless the Customer cancels the Service as described above. Sputnik may terminate this Agreement (a) if it terminates the Service, (b) at any time upon 30 days written notice or (c) if Customer fails to comply with any of the terms of this Agreement.

Service Level Agreement ("SLA")

Sputnik endeavors to achieve 99% uptime for the Service. The criteria for determining downtime are described below.

Resolution Objectives and Reporting

Sputnik will use reasonable and diligent efforts to ensure resolution of any reported Service Interruption in less than ninety (90) minutes calculated on a per-occurrence basis commencing at the opening of a case reporting a Service Interruption and ending with the restoration of Service ("Mean Time to Restore" or "MTTR"). A case can be opened by Customer using an online case form or, if this option is unavailable, by phoning Sputnik's support line and speaking with a support representative or leaving a voicemail message. Failure to meet the MTTR may entitle Customer to receive Credit as defined below. The appropriate Sputnik Account Executive or applicable Sales team will coordinate credits under this SLA.

Exclusions

MTTR objectives apply only to out-of-service conditions and do not apply to:

  • The inability of a Device to communicate with an Account,
  • Scheduled Service downtime that Is noticed to Customer Account contact,
  • Degradation or the sub-optimal performance of the Service,
  • Cases associated with new installations,
  • Cases erroneously opened by Customer, or
  • Events beyond Sputnik's reasonable control.

Remedies and Credits

Subject to the exclusions above, Customer is entitled to certain Credits for Service Interruptions ("Credits") that are exclusively the fault or responsibility of Sputnik. Customer's Credits are applied toward future Recurring Fees only, not as a refund. To be eligible for Credit under this agreement the following criteria must be met:

  • Customer must follow the case reporting procedures detailed above,
  • The covered Service Interruption must exceed the MTTR objectives defined above, and
  • Customer must formally request a Credit from the Sputnik Account Executive or Sales team.

Credits will be prorated as follows:

Duration of Outage and Credit Amount

  • 90 to 120 minutes: 1 day of prorated Recurring Fees
  • 121 minutes to 1,440 minutes (24 hours): 3 days of prorated Recurring Fees

Credit will not be issued unless the actual MTTR for a case exceeds 90 minutes. Customer shall be eligible for no more than one such Credit for a 24-hour period beginning with the opening of the case, even if more than one outage occurs during that period. In the event the outage last more than a 24-hour period, the Credit applied for each additional 24-period will be calculated using the formulas described above.

Customer's total Credits shall in no event exceed the total yearly Recurring Fees. Eligibility for Credits is subject to Customer's Account being current and no outstanding balance due. Residual Credits may not be carried over to subsequent years.

THE CREDITS (IF ANY) DESCRIBED ABOVE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE OUTAGE OR ANY SPUTNIK FAILURE TO MEET THE MTTR OBJECTIVES SET FORTH IN THIS AGREEMENT.

Obligations of Customer

Customer shall, at its own expense, undertake all necessary preparations required to comply with Sputnik's reasonable and customary installation and maintenance instructions and requirements. In addition, if any equipment is being supplied to Customer by Sputnik, it shall be supplied to Customer pursuant to the terms and conditions of a separate agreement. Customer acknowledges and agrees that it is responsible for all activities associated with the Service occurring under Customer's Account. Customer shall (a) be responsible for ensuring the security and confidentiality of all IDs and passwords, (b) prevent unauthorized access to, or use of, the Service, (c) notify Sputnik promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service or Customer's Account, (d) identify, interpret, and comply with all applicable local, state, federal, and foreign laws in using the Service and (e) not use the Service in a manner that would violate the laws of any country in which the Service is used by Customer.

Customer agrees that it shall not do any of the following, nor permit any Customer's Authorized Users or other third parties to do any of the following:

  • Violate any third party's rights, including, without limitation, any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right or right of publicity,
  • Restrict or inhibit any other user from using and enjoying the Service and/or the Internet,
  • Threaten, stalk, harm, or harass others, or promote bigotry or discrimination,
  • Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate any third party website,
  • Solicit personal information from minors, or submit or transmit pornography,
  • Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service through hacking, password mining or any other means,
  • Post or transmit any information or software which contains a virus, worm, Trojan horse, cancelbot (malicious service interruption or cancellation) or other harmful component,
  • Interfere or attempt to interfere with the proper working of the Service,
  • Upload, post, publish, transmit, reproduce, or distribute in any way any information or material that is unlawful, defamatory, abusive, fraudulent, obscene or otherwise objectionable in Sputnik's sole discretion or that is known by Customer to be false, inaccurate or misleading,
  • Upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material through the Service which is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder,
  • Upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws, or
  • Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, including features that enforce limitations on the use of the Service.

Disclaimer and Limitation of Liability

EXCEPT TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY, IN NO EVENT WILL SPUTNIK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUE (EVEN IF THEY ARISE AS A DIRECT OR IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES), LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF CAPITAL, COST OF SUBSTITUTE FACILITIES OR EQUIPMENT, NOR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF SPUTNIK HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, WHETHER UNDER THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SPUTNIK'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO SPUTNIK HEREUNDER FOR THE IN SERVICE PERIOD ONE (1) MONTH PRIOR TO THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY, WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY.

THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Disclaimer of Warranties

Customer understands that Customer and its Authorized Users may access the Internet after being authenticated by the Service. Customer acknowledges and agrees that neither Sputnik nor any of its affiliates operates or controls the Internet in any way, and that all merchandise, information and services offered or made available or accessible on the Internet are offered or made available or accessible by third parties who are not affiliated with Sputnik or its affiliates and that Sputnik is not responsible or liable for the availability, the operation, changes, updates, content, links or any material located on or available from any third party sites or for the protection or privacy of Customer's data by third parties. Any dealings with or participation in promotions of any third party, including the payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between Customer and the third party. Customer further agrees that Sputnik shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any material available on or through any third party site or any such dealings or promotions.

CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER'S USE AND ITS AUTHORIZED USERS' USE OF THE SERVICE AND THE INTERNET.

NEITHER SPUTNIK NOR ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO CUSTOMER BY A REPRESENTATIVE OF SPUTNIK SHALL CREATE A REPRESENTATION OR WARRANTY.

CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED "AS IS" AND FURTHER ACKNOWLEDGES THAT SPUTNIK DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, (B) THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE.

If Customer is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Sputnik in operating the Service, unless otherwise provided herein, Customer's sole and exclusive remedy is to cancel the Service as described above and discontinue using the Service.

Failure to Comply With Agreement

Sputnik may deny Customer accesses to all or part of the Service without notice if Customer engages in any conduct or activities that violates any of the terms and conditions in this Agreement. If Sputnik denies Customer access to the Service because of such a violation, neither Customer nor its Authorized Users shall have any right to (a) access the Internet through the Service or (b) obtain any Credit(s) otherwise due to Customer, and such Credit(s) will be forfeited.

Indemnity

Customer agrees to defend, indemnify, and hold Sputnik and its affiliates harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to or arising from:

  • Any violation of this Agreement by Customer or those who access the Service through Customer's Account,
  • Customer's or its Authorized Users' use of the Service or Internet,
  • The placement or transmissions of any message, information, software, or other materials on the Internet by Customer or by those who have access to the Internet through Customer APs or Customer's Account, or
  • Any claim that the Service or the use thereof infringes upon any domestic or international patent, copyright, trade secret or other proprietary right of a third party.

Miscellaneous

This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplated hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule and shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.

This Agreement and all other documents that are incorporated by reference herein constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Each party agrees that any terms and conditions of any purchase order or other instrument issued by Customer in connection with the Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect.

No waiver by Sputnik of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Sputnik and Sputnik's failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall not operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Sputnik may modify this Agreement from time to time. The most current version of this Agreement will be located at sputnik.com. Customer acknowledges and agrees that access to or use of the Service is governed by this Agreement. If Sputnik makes material changes to this Agreement that reduces Customer's rights or increases Customer's obligations, Sputnik will notify Customer by email or by posting a notice on the referenced URL prior to the effective date of the changes. Sputnik will also indicate the date that revisions were last made at the top of the referenced URL. Customer should revisit this Agreement on a regular basis, as revised versions will be binding on Customer. Any such modification will be effective upon the posting of a new Agreement. Customer acknowledges and agrees that continued access to or use of the Service after the Revision Date above indicates Customer's acceptance of the revised Agreement.