PORTAL TERMS OF SERVICE

SmartFiber Platform License Agreement

This Platform License Agreement (this “Agreement”) sets forth the terms and conditions under which United Cloud Communications, LLC. (d/b/a SmartFiber), a Georgia corporation (“SmartFiber”) provides the services described on the applicable order (the “Services”). “Customer” or “Customer” as used in this Agreement refers to you, or your company, firm or entity, your officers, directors, shareholders, and employees. By completing the registration process and using the Services, you are stating that you have the authority to bind the named customer (the “Customer”) to this Agreement and that you and the Customer agree to be bound by this Agreement Capitalized terms used herein and not defined have the meaning assigned in the applicable Order (as defined below).

1. GRANT OF LICENSE
   SmartFiber hereby grants Customer a limited, non-exclusive, non-transferable, right to access and use the Services subject to this Agreement and the terms set forth on the applicable order (each, an “Order”). All rights not expressly granted to Customer are reserved by SmartFiber and its licensors. The foregoing license will immediately terminate upon termination of this Agreement for any reason.
2. COPYRIGHT
   Title and copyrights in and to the Services, including any images, “applets,” photographs, animations, video, audio, music, and text incorporated into or made a part of the Services, and all accompanying electronic materials, together with any copies Customer is permitted to make under this Agreement, are owned by SmartFiber or its licensors and are protected by the United States copyright laws and international treaty provisions. Customer is permitted to make copies of the training materials accompanying the Services solely for use as reference guides for authorized users using the Services pursuant to this Agreement. All such copies shall contain the copyright and other proprietary notices of SmartFiber. Customer is prohibited from any other copying of the printed materials accompanying the Services without the written permission of SmartFiber.
3. CUSTOMER’S USE OF THE SERVICES
   Customer use of the Services may include use by third-party partners, vendors, and clients with whom Customer collaborates in its normal course and to whom Customer may grant access to the Customer Account. Customer is responsible for all use of the Services by its authorized users. Customer controls access to and the management of the Customer Data through Customer account. Customer acknowledges and understands that Customer is solely responsible for the use of and the results obtained from the Services. Customer will comply with any and all applicable laws regarding Customer’s use of the Services including applicable international export rules and regulations, laws and treaties governing Customer’s use of the Services, laws related to data privacy, international communications, and the transmission of technical or personal data.
   Customer will not:
1. License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or competitor of SmartFiber the Services in any way;
2. Modify or make derivative works based upon the Services;
3. “Frame” or “mirror” the Services on any other server or wireless or Internet-based device;
4. Reverse engineer or access the Services in order to:
1. build or offer a competitive product or service,
2. build or offer a product or service using similar ideas, features, functions or graphics of the Services,
3. copy any ideas, features, functions or graphics of the Services;
5. Use the Services
1. for any illegal purpose,
2. for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret
3. to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.
4. Customer shall not:
1. Intentionally interfere with or disrupt the integrity or performance of the Services;
2. Attempt to gain unauthorized access to the Services
3. Intentionally send or store software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services. Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer’s use of the Services. Customer will not disclose or make available Passwords to any third-party other than to authorized users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify SmartFiber in writing of any unauthorized use of the Services that comes to Customer’s attention.
5. PERFORMANCE
   Customer understands that normal maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. It is possible that there will be interruptions of Services during non-scheduled maintenance. SmartFiber will make commercially reasonable efforts to address errors and omissions in the Services and to ensure the Service is performing in a manner materially in compliance with the Documentation.
   Customer’s access to the Services is through the Internet. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SmartFiber is not responsible for any delays, delivery failures, or other damage resulting from such problems.
6. SERVICES UPGRADES AND ENHANCEMENTS
   SmartFiber makes regular changes and improvements to the Services from time to time but in no event will such changes materially reduce the functionality provided by the Services as of the date of the applicable order. SmartFiber will use reasonable efforts to communicate with Customer about planned changes to the Services. SmartFiber will provide its standard support then in effect for the Services (as may be updated from time to time) set forth here: https://SmartFiber.com/support at no additional charge.
   SmartFiber may use any feedback or suggestion it receives from Customer with respect to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing, and/or creating derivative products. SmartFiber has no obligation to compensate Customer in connection with the use of such Feedback nor shall SmartFiber identify Customer as the source of any such Feedback. All Feedback shall be owned by SmartFiber and Customer shall and hereby does, assign all of Customer’s right, title, and interest in and to such Feedback to SmartFiber.
7. CUSTOMER CONTENT
   SmartFiber does not own any data, information, or material that is submitted to the Service by Customer (“Customer Content”). Customer retains all right, title, and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in Customer Content, and SmartFiber explicitly disclaims any ownership of, or right, title, and interest in such content. Customer consents to SmartFiber’s use of and access to the Customer Content solely to the extent necessary to enable SmartFiber to provide the Services to Customer in accordance with this Agreement.
   As between SmartFiber and Customer, Customer have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Customer Content. Customer acknowledges that SmartFiber may collect and analyze Customer Content and other information about Customer’s usage of the Services to improve and enhance the Services, provide support, and for other development purposes including industry-wide benchmarking; provided, however, Customer Content used for benchmarking will be aggregated and anonymized and SmartFiber will not disclose any personally identifiable information provided by Customer.
   Customer Content is considered Customer Confidential information. Customer is responsible for exporting Customer Content from the Services prior to termination of the applicable Order.
8. FEES; PAYMENT TERMS.
   The fees payable for the Services (the “Fees”) are as stated on the applicable Order and are non-refundable. Unless otherwise specified in the applicable Order, Customer shall pay the Fees within ten (10) days from the invoice date, without setoff or deduction and otherwise in accordance with the terms of the Order. If Customer disputes any invoice, Customer must notify SmartFiber within fifteen (15) days of the date of the invoice identifying in reasonable detail the nature and amount of any such dispute. If the parties agree that the invoicing is not correct, SmartFiber will issue a credit memo for the incorrect amount which will be applied against the applicable invoice or the next invoice (if the disputed invoice has been paid). No fees will be refunded. The parties will use commercially reasonable efforts to promptly resolve any such disputes.
   If any invoiced amount is not received by SmartFiber by the due date, then those amounts may accrue late interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, commencing on the date that payment was due. All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”) and Customer is responsible for the payment of all Taxes, excluding Taxes on SmartFiber’s net income. SmartFiber will not invoice Customer, and Customer will not pay, for sales, use, or excise taxes if Customer provides SmartFiber with certificates or other evidence supporting the applicable tax exemptions.
   SmartFiber reserves the right to modify the Fees for the Services, effective upon commencement of the next Renewal Term, by notifying Customer of such change in writing at least thirty (30) days before the end of the then-current Term.
9. TERM AND TERMINATION
   The term of this Agreement shall be for so long as there are then current orders attached to and made a part hereof unless earlier terminated as provided herein. The term of each Order will be as stated in the applicable Order.
   Either party may, at its option, terminate this Agreement and/or any then-current Order(s) if the other party materially breaches the terms of this Agreement or the applicable Order and fails to cure the same within thirty (30) days after notice.
   SmartFiber may suspend Customer’s access to the Services and Customer Content during any period that Customer is in material breach of this Agreement or its access to and use of the Services or Customer Content creates a material security vulnerability. Where practicable, SmartFiber will give you at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances. SmartFiber will reinstate access to the Services when the grounds for suspension are cured.
   Upon termination of Customer access to or use of the Services for any reason, SmartFiber will retain Customer Content for up to twenty-eight (28) days from the effective date of termination. If you wish to export Customer Content following a termination for breach, SmartFiber will either, at its option, enable short-term access to the Services at a scheduled time so that you may export Customer Content, or export Customer Content using its standard export tools. SmartFiber has no obligation to retain Customer Data after the twenty-eight (28) day period and may destroy Customer Content any time thereafter.
   The following sections survive expiration or termination of this Agreement: Section 6 (Customer Information); Section 7 (Fee; Payment Terms); Section 8 (Termination); Section 9 (Confidentiality); Section 10 (Indemnification); Section 11 (Limitation of Liability); Section 15 (Governing Law; Export Compliance); and any other terms that by their nature are intended to survive expiration or termination.
10. CONFIDENTIALITY
    Customer and SmartFiber may disclose information to one another, and Customer may access information in connection with the Services, which is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. All Confidential Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in this Agreement, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.
    The restrictions on the use or disclosure of Confidential Information do not apply to any Confidential Information:
1. After it has become generally available to the public without breach of this Agreement by the receiving party
2. Is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party
3. Is independently developed by the receiving party
4. Is rightfully received by the receiving party from a third party without restriction
5. Is disclosed under operation of law. Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will promptly notify the disclosing party of such order or requirement.
11. Customer understands that SmartFiber’s implementation and support personnel may need to access Customer Account to assist Customer in the implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. Customer will permit SmartFiber’s implementation and support personnel to access the Customer Account with the understanding that all information in Customer Account shall be considered Confidential Information by SmartFiber personnel. SmartFiber agrees to hold in confidence and not reproduce, distribute, infringe on, transmit, or transfer, directly or indirectly, in any form, by any means, the Confidential Information.
12. INDEMNIFICATION
1. By SmartFiber: SmartFiber will indemnify, defend and hold Customer harmless from and against any and all claims, actions, losses, damages, liabilities, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements (collectively, “Losses”) incurred by Customer arising out of any third-party claim that the Services delivered under this Agreement infringe any patent, copyright or other intellectual property right of a third party. If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, SmartFiber will either procure the right, at SmartFiber’s sole expense, to permit Customer continued use of the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If SmartFiber reasonably and in good faith determines that neither of the foregoing are commercially practicable, SmartFiber may terminate this Agreement and the licenses granted herein effective immediately upon written notice to Customer and will refund the unearned pro-rata portion of any prepaid amounts. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND SmartFiber’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
2. By Customer: Customer shall indemnify, defend and hold harmless SmartFiber and SmartFiber’s officers, directors, employees and agents (each a “SmartFiber Indemnitee”) against any and all Losses incurred by a SmartFiber Indemnitee in any action between such SmartFiber Indemnitee and any third party arising out of or in connection with Customer use of the Services.
3. Process: The indemnification obligations set forth herein are contingent upon the following conditions:
1. SmartFiber or Customer, as the case may be (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) in writing of the third party claim or action (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby)
2. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter
3. The Indemnifying Party will have sole control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.
13. LIMITATION OF LIABILITY
    EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 10, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (III) CUSTOMER’S OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) IS LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 11); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14. FORCE MAJEURE
    Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.
15. INDEPENDENT CONTRACTORS
    Customer and SmartFiber are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement.
16. NOTICES
    Except as explicitly stated otherwise, any notice to SmartFiber shall be given in writing to Legal Counsel at SmartFiber:
    SmartFiber
    502 W 7th Street
    Suite 100
    Erie, PA 16502
    Any notice to Customer will be given to the address Customer provide to SmartFiber during the registration and provisioning process. Either party may update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, to the address provided to the other party during the registration and provisioning process. In such case, notice shall be deemed given three (3) days after the date of mailing.
17. GOVERNING LAW; EXPORT COMPLIANCE
    This Agreement is subject to the laws of the State of Delaware, U.S.A. (without regard to its conflicts of laws provisions). The Services may be subject to export laws and regulations of the United States and other jurisdictions. Customer may not permit users to access or use the Services in a U.S.- embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes SmartFiber to be in violation of U.S. export laws, even if the use is permitted the laws applicable to you or your user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
18. ENTIRE AGREEMENT; SEVERABILITY
    This Agreement, together with the applicable Order(s) comprises the entire agreement between Customer and SmartFiber with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms of the Agreement and any Order, the terms set forth in the applicable Order govern solely for purposes of that Order. Customer acknowledge that any pre-printed terms and conditions on or attached to Customer purchase orders will be of no force or effect. If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
19. ASSIGNMENT
    This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to:
1. A parent or subsidiary
2. An acquirer of assets
3. A successor by merger
20. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of SmartFiber directly or indirectly owning or controlling 50% or more of Customer shall entitle SmartFiber to terminate this Agreement for cause immediately upon written notice.
21. AUTHORITY
    If this Agreement is being accepted by any individual for Customer, then Customer represents, warrants and attests that such individual has the authority to execute this Agreement on behalf of Customer.
22. UPDATES
    SmartFiber may amend this Agreement from time to time, and the revised Terms shall be effective upon the commencement of the next Renewal Term (as defined in the applicable Order). Any such revisions will apply to SmartFiber’s customers generally, will not impose additional fees during the applicable Term, or alter the allocation of risk between you and SmartFiber.
23. PUBLICITY
    Customer agrees that SmartFiber may include identification of Customer as a customer on SmartFiber’s website, provided that such identification is no more prominent than the identification of SmartFiber’s other customers and is otherwise consistent with SmartFiber’s practice of identifying its customers on its website at the time. Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this Agreement, or mentioning or implying the trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a party determines that a disclosure is required by applicable law.