End User Licensing Agreement

END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES AND SOFTWARE (EACH, AS DEFINED BELOW) AND IS BETWEEN ALEF EDGE INC. (ALSO REFERRED TO AS “ALEF,” “WE,” “US,” OR “OUR”) AND THE ENTITY YOU REPRESENT, OR, IF YOU DO NOT DESIGNATE AN ENTITY, YOU INDIVIDUALLY (“CUSTOMER”, “YOU” OR “YOUR”). THE END USER LICENSE AGREEMENT TOGETHER WITH THE ORDER FORM (DEFINED BELOW) AND THE POLICIES CONSTITUTE THIS “AGREEMENT”.  THE SPECIFIC SERVICES THAT YOU ARE ENTITLED TO ACCESS HEREUNDER WILL BE SET FORTH IN AN ORDER FORM SIGNED BY THE PARTIES OR WILL BE OTHERWISE AGREED TO BY THE PARTIES VIA A PURCHASE ORDER OR THROUGH OPTIONS IN AN ONLINE MENU MADE AVAILABLE BY ALEF AND SELECTED BY YOU IN THE PORTAL (AS DEFINED BELOW) (THE “ORDER FORM”).  THIS AGREEMENT TAKES EFFECT ON THE DATE CUSTOMER EXECUTES OR OTHERWISE ASSENTS TO THE ORDER FORM (THE “EFFECTIVE DATE”). YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. CAPITALIZED TERMS USED IN THIS AGREEMENT ARE DEFINED IN SECTION 11.  EACH OF CUSTOMER AND ALEF MAY BE REFERRED TO HEREIN AS A “PARTY” AND TOGETHER AS THE “PARTIES”.

ALEF MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT FROM TIME TO TIME BY PROVIDING THIRTY (30) DAYS’ PRIOR NOTICE TO CUSTOMER. IF CUSTOMER ACCESSES THE SERVICES AFTER THE DATE ON WHICH THE REVISED AGREEMENT BECOMES EFFECTIVE, CUSTOMER’S ACCESS WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.  IF ANY CHANGE TO THIS AGREEMENT IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER’S ONLY REMEDY IS TO STOP ACCESSING THE SERVICES.

1. Use of the Services.

1. Grant to Use. During the term of your Subscription, we will grant you the right to access and use the Services.  Alef will use commercially reasonable efforts to provide the Services to you in accordance with the service level agreement Exhibit A (the “SLA”).  Subject to the terms of this Agreement, and solely during the term of your Subscription, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license for the following: (a) access and use the Services solely in accordance with this Agreement; and (b) use the Service solely in connection with your permitted use of the Services, in each case, solely for Customer’s business purposes. We own all right, title, and interest in and to the Services, and all related technology and intellectual property rights. Except as provided in this Section 1.1, you obtain no rights under this Agreement from us, our Affiliates or our licensors to the Services, including any related intellectual property rights.  You will comply with the terms of this Agreement, the Policies, and all laws, rules and regulations applicable to your use of the Services.  
2. Restrictions Upon Use. You may use the Services solely in accordance with this Agreement and Alef’s published documentation.  Neither you nor any End User will use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Services (except to the extent Software is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sub-license the Services. You control access by End Users, and you are responsible and liable for their use of the Services in accordance with this Agreement as if they are “You” or “Customer” hereunder.
3. Customer Data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Services to you without violating the rights of any third party, applicable law, or otherwise obligating Alef to you or to any third party. Alef does not and will not assume any obligations with respect to Customer Data other than as expressly set forth in this Agreement or as required by applicable law.  You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup your master account and End Users’ accounts and Customer Data in a manner that will provide appropriate security and protection. We and our Affiliates are not responsible for unauthorized access to your master account or End Users’ accounts
4. Trial Periods. If you access the Services on an evaluation (the “Evaluation Service”), then you may use the Evaluation Service only for evaluation purposes and for the period we specify.  Unless we specify otherwise, any use of the Evaluation Service on an evaluation basis will be for a period of thirty (30) days, beginning on the date we provide you authentication credentials.  You must not use the Evaluation Service for any production computing activity. Notwithstanding any other provision of this Agreement, we provide the Evaluation Service (a) free of charge and without support; and (b) “AS IS” without indemnification or warranty of any kind.  The Service Level Agreement does not apply to the Evaluation Service.  
5. Managed Services. If authorized under the Order Form, you may use the Services to provide services to third parties (a “Managed Service Solution”) in accordance with this Agreement, provided (a) You have the sole ability to access, configure, and administer the Services, (b) You have administrative access to the virtual OSE(s), if any, in the Managed Service Solution, and (c) the third party has administrative access only to its application(s) or virtual OSE(s). You are fully responsible for the third party’s use of the Services in accordance with the terms of this Agreement, and shall fully indemnify Alef and its Affiliates from any and all claims made by third parties in relation to the provision of the Managed Service Solution.
6. Software. To enable optimal access to and use of the Services, you may install and use certain Software in connection with your use of the Services solely as described in Alef’s published documentation, including open source software. You acknowledge that your installation and use of any Software is at all times subject to the terms of this Agreement.  Any open source software distributed to you is made available under the applicable open source license, which can be found in Exhibit B.
7. Use of Evaluation Service. Should the Customer not wish to purchase any Alef provided evaluation Service, and SIMs at the end of trial period, the Customer will return to Alef the provided SIMs within 10 days. Alef will invoice Customer for all non-returned items.

Purchasing Services.

1. Pricing and payment. You will pay to Alef all fees set forth in the Order Form in accordance with the terms and conditions set forth therein and herein.  Unless otherwise set forth in the Order Form, all fees are invoiced monthly in advance and due monthly. Some Order Forms may permit you to modify the quantity of the Services, as the case may be, ordered during the Term of a Subscription. Additional quantities of Services added to a Subscription will expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in Section 4.4 below.  If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection.
2. Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law.
3. Changes.  We will provide you at least thirty (30) days’ prior notice if we materially alter a customer-facing API that you are using in a backwards-incompatible fashion, except in cases where doing so would (a) pose a security or intellectual property issue, or (b) is economically or technically burdensome.

Term, Termination and Suspension.

1. Term; Termination. The term of this Agreement commences on the Effective Date and continues until (a) the expiration of the Subscription, or (b) termination of this Agreement in accordance with the terms set forth herein (the “Term”).  In the event either Party materially breaches this Agreement in a manner that cannot be cured or materially breaches this Agreement in a manner that can be cured and such breach remains uncured for more than thirty (30) days after receiving written notice thereof, then the non-breaching Party may terminate this Agreement upon written notice.  
2. Renewal. Unless otherwise set forth in the applicable Order Form, each Subscription shall automatically renew for a period equal to its initial Term (each, a “Renewal Term”); unless one Party provides the other with thirty (30) days advance written notice of its intent not to renew.  Alef reserves the right to increase prices during any Renewal Term.
3. Termination for Convenience.  Subject to Section 4.4, Customer may terminate this Agreement for any reason or no reason by providing Alef with thirty (30) days written notice.
4. Subscription Termination. Except for terminations of an Order Form that occur as a result of Alef’s uncured material breach, all fees committed under a mutually executed Order Form for a Subscription shall remain due and payable as and when due following any termination.  For example, if the Subscription is for three (3) years, and Customer terminates the applicable Order Form at the end of the first year, the fees for the second and third year shall remain due and payable as and when due.
5. Suspension. We may suspend your use of the Services if: (a) it is reasonably needed to prevent unauthorized access to Customer Data; (b) you fail to respond to a claim of alleged infringement under Section 7 within a reasonable time; (c) you do not pay amounts due under this Agreement within ten (10) days of the due date; or (d) you do not abide by the Acceptable Use Policy or you violate other terms of this Agreement.
6. Survival. Termination or expiration of this Agreement will not affect any ongoing obligations of the Parties that have accrued up to the date of such termination or expiration, including without limitation any payment obligation.  Upon any expiration or termination of this Agreement, (a) all rights and licenses granted to Customer hereunder will terminate and Customer must discontinue use of Services provided under the applicable Order Form; and (b) Customer’s obligation to pay amounts accrued under this Agreement but that are not yet paid and the provisions of Section 2.1, 4.4, 4, 5.2, 6, 7, 8, 9 and 10 will survive.

Warranties.

1. Limited Warranty.  We may from time to time provide certain limited service level warranties in writing in respect of our Services. To the extent we provide such limited service level warranties expressly in writing to you with respect to any of our Services and we fail to meet such limited service level warranty in respect of such Services, we will, at our option and as your exclusive remedy, either (a) repair or replace the Services, or (b) terminate this Agreement and refund to you all fees prepaid under the applicable Order Form.  This limited warranty shall not apply to problems caused by accident, abuse, or use of the Services in a manner inconsistent with this Agreement or our published documentation or guidance, or resulting from events beyond our reasonable control or resulting from any illegality of any nature or form, or failure to meet minimum system requirements.
2. Disclaimer. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES, LICENSORS AND SUPPLIERS (A) OTHER THAN STATED ABOVE, MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

Proprietary Rights in Customer Data.  Customer hereby grants Alef the nonexclusive, worldwide, royalty-free, fully paid up, non-sublicensable (except to Alef’s contractors and consultants performing services on behalf of Alef), non-transferable (except as set forth in Section 10) right and license to (a) copy, use, modify, distribute and display Customer Data solely to the extent necessary to perform its obligations under this Agreement, (b) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving Company’s products and services, and (c) create aggregated and/or anonymized data, which does not include information that identifies or would reasonably be expected to identify Customer or End Users (“Aggregate Data”).  For the avoidance of doubt, Aggregate Data is not Customer Data.  As between the Parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Customer under this Agreement.  

Indemnification.  

1. Customer’s Obligations.  You will defend Alef and the officers, directors, agents, and employees of Alef (the “Alef Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from (a) any use or disclosure by Customer of the Services in violation of this Agreement or (b) the Customer Data.  Further, you will indemnify the Alef Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
2. Alef’s Obligations.  We will defend you and your officers, directors, agents, and employees (“Customer Indemnified Parties”) against any Claim arising from an allegation that your authorized use of the Services infringes any intellectual property right of a third party. Further, Alef will indemnify the Customer Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.  Notwithstanding the foregoing, Alef’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Services by any party other than Alef without Alef’s express consent; (b) the combination, operation, or use of the Services with other product(s), data or services where the Services would not by itself be infringing; or (c) unauthorized or improper use of the Services.  If the use of the Services by Customer has become, or in Alef’s opinion is likely to become, the subject of any claim of infringement, Alef may at its option and expense (i) procure for Customer the right to continue using the Services as set forth hereunder, (ii) replace or modify the Services to make it non-infringing so long as the Services have at least equivalent functionality, (iii) substitute an equivalent for the Services or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement.  This Section 7.2 states Alef’s entire obligation and Customer’s sole remedy in connection with any claim regarding the intellectual property rights of any third party.
3. Process. The obligations under this Section 7 will apply only if the Party seeking defense or indemnity: (a) gives the other Party prompt written notice of the claim; (b) permits the other Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other Party (at the other Party’s expense) in the defense and settlement of the claim. In no event will a Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.

Limitations of Liability.  WE AND OUR AFFILIATES, LICENSORS AND SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CUSTOMER DATA OR OTHER DATA. IN ANY CASE, NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF PROVISION OF SERVICES HEREUNDER WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 8 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

E-sim and Physical Sim Cards. The procurement, provisioning and or supplying of E-sim and Physical Sim card by Alef shall in no way be construed that Alef is a telecommunications service provider. Alef is a data communications service provider and does not own the wireless network infrastructure to provide telecommunication services to customers. 

Miscellaneous.  This Agreement will be binding upon the Parties, their successors, and permitted assigns.  Without limiting the foregoing, neither Party may assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that Alef may assign or transfer this Agreement or all of its rights and obligations under this Agreement, without Customer’s consent (a) to a successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of it business or assets to which this Agreement relates, (b) to a parent or affiliate or (c) in connection with a change of control of Alef.  This Agreement will be construed in accordance with the laws of the State of Delaware (excluding its choice of law rules).   Each Party agrees that disputes under this Agreement will be brought exclusively in courts located within New Castle County, Delaware.  No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver.  Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  No waiver of any breach of any term or condition of this Agreement will constitute a waiver of any subsequent breach.  If any term will be held unenforceable, such term will be restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of this Agreement will remain in full force and effect.  All notices under or related to this Agreement will be in writing and will reference the Agreement.  Notices will be deemed given: (i) when delivered personally; (ii) when sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt or (v) in the case of Alef as the notifying Party, within five (5) days after any notification referenced in this Agreement is posted within the Portal or otherwise communicated by email to Customer.  Except with respect to Alef’s notifications described in the foregoing clause (v), all communications will be sent to the addresses set forth in the Order Form.  Neither Party is liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or unanticipated degradation, failure of third party networks or communications infrastructure, or other similar events beyond the reasonable control of a Party.  Each Party’s status hereunder is that of an independent contractor.  Except as provided herein, neither Party will have the authority to obligate or bind the other Party in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties.  This Agreement contains the entire agreement and understanding between the Parties and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions.  

Definitions

“Acceptable Use Policy” the supplemental terms governing Customer’s use of the Services available in Exhibit C – Service Terms.

“Affiliate” means,  with  respect   to   any  specified person:  (i) any person that directly or indirectly controls, is controlled by, or is under common control with such specified person; (ii) any person that directly or indirectly controls 20% or more of the outstanding equity securities of the specified entity or of which the specified person is directly or indirectly the owner of twenty percent (20%) or more of any class of equity securities; (iii) any person that is an employee of, an officer of, director of, partner in, or trustee of, or serves in a similar capacity with respect to, the specified person or of which the specified person is an employee, an officer, director, partner or trustee, or with respect to which the specified person serves in a similar capacity; or (iv) any person that is a member of the immediate family of the specified person (“immediate family” of an individual, as used herein, shall mean spouse, mother, father, brother, sister, uncle, aunt, issue of uncle or aunt, or lineal descendant of such individual)

“Alef Site” means www.alefedge.com (and any successor or related site designated by us), as may be updated by us from time to time;

“Customer Data” means all data, including all text, sound, video, or image files, and software, that are provided to Alef by, or on behalf of, Customer through use of the Services, including, all such information provided by End Users;

“End User” means the employees and contractors of Customer or any of Customer’s Affiliates that have access to Customer Data hosted in the Services, according to the terms and conditions of this Agreement;

“Indirect Taxes” means the taxes, levies and duties applicable to a particular jurisdiction, including, any penalties, interests, or other charges related thereto, for e.g. VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax in the United States of America or any other applicable jurisdiction;

“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees);

“OSE” shall mean Operating System Environment;

“Policies” means the Acceptable Use Policy, Privacy Policy, the OSS Disclosure, the Service Level Agreement, all restrictions described on the Alef Site and Portal, and any other policy or terms referenced in or incorporated into this Agreement;

“Portal” means the online portal located at www.alefedge.com; 

“Services” shall mean any of the Alef-hosted services set forth in the Order Form to which you obtain a Subscription for under this Agreement;

“Software” shall mean software (including machine images), data, text, audio, video or images provided by Alef as part of your Subscription to enable certain functionality. Software may include APIs; sample code; software libraries; command line tools; templates; and other related technology (including any of the foregoing that are provided by our personnel);

“Subscription” means a right to access the Services for a defined Term, as each is specified in the Order Form. You may purchase multiple Subscriptions, which may be administered separately, and which will be governed by the terms of this Agreement but treated as a separate contract between you and Alef;

“Third Party Components” means third-party components such as software, APIs; WSDLs; cookies; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology embedded in the Services.