Spectrum-E by ATDI

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TERMS OF SERVICE. SPECTRUM-E™: ONLINE SPECTRUM ENGINEERING AND SPECTRUM MANAGEMENT TOOL.

ATDI, Inc. provides its online radio frequency engineering and spectrum management tool, Spectrum-E™, on a subscription basis according to these terms. By ordering a subscription, you are agreeing to these terms, so please read them carefully. If you do not accept these terms, do not complete your order. These Terms of Service are a legally binding agreement between you ("Subscriber") and ATDI, Inc., a Delaware corporation, for online access to and use of the ATDI online radio frequency engineering and spectrum management tool, Spectrum-E™.

ORDER. Subscriber orders a Subscription to use the Spectrum-E™ online software in accordance with these Terms of Service for the Subscription Term and at the Service Level (currently Professional, Advanced, or Unlimited) designated by Subscriber on the Spectrum-E Order or Renew Subscription page of the ATDI website.

TRIAL PERIOD. Subscriber may test Spectrum-E for forty-eight hours after initial activation of Subscriber's first Subscription Term. If for any reason Subscriber is dissatisfied with Spectrum-E, Subscriber may notify ATDI of its termination of the Subscription by electronic mail at Spectrum-E@atdi.us.com within such forty-eight hour period, re-submitting the credit card, debit card, or other payment information used to purchase the Subscription, at which time ATDI will process a refund of the Subscription Fee. The trial period and potential refund will not apply to any Subscription Term other than the very first Subscription Term that Subscriber purchases.

SUBSCRIPTION TERM. The Subscription Term will begin on the date ATDI activates Subscriber access to Spectrum-E via and will continue for the length of time purchased by Subscriber, unless sooner terminated as provided in these Terms of Service. At the time of activation, ATDI will assign a password to enable Subscriber to access Spectrum-E.

PAYMENT. Subscriber agrees to pay the Subscription Fee applicable to the Subscription Term and Service Level designated by Subscriber on the Spectrum-E Order or Renew Subscription page, including any applicable sales, use, or other taxes. Subscriber authorizes ATDI to charge the amount due to the credit card, debit card, or other payment medium submitted by Subscriber on the Spectrum-E Order or Renew Subscription page.

LICENSE. Conditioned on collection of the Subscription Fee, ATDI grants Subscriber a non-transferable, non-exclusive license to use Spectrum-E via Internet access during the Subscription Term on a host server maintained by or on behalf of ATDI.

MAINTENANCE. At no additional charge, ATDI will update Spectrum-E from time to time with any error corrections and upgrades which are developed by ATDI for release during the Subscription Term.

SUPPORT. Spectrum-E is provided with the level of support indicated for Subscriber's Service Level on the Spectrum-E Order or Renew Subscription page of the ATDI website.

RENEWAL. At the expiration of each Subscription Term, provided Subscriber is not in breach of these Terms of Service or any other obligations to ATDI, Subscriber may renew and pay for an additional Subscription Term, subject to the Subscription Fee and the other terms then offered by ATDI. ATDI's then current terms will be posted on the ATDI website at the time of renewal. Because ATDI does not store payment information, Subscriber will have to re-enter credit card, debit card, or other payment information at the time of renewal. If a Subscription Term is not renewed, the Subscription will terminate automatically without notice, and Subscriber's access to Spectrum-E will immediately terminate.

SECURITY AND LIMITED LICENSE - SUBSCRIBER WORK PRODUCT. The work product which Subscriber creates in using Spectrum-E will reside initially on the server hosting Spectrum-E. ATDI agrees to implement reasonable security measures to prevent other users from accessing Subscriber's work product while on the host server. Subscriber authorizes ATDI to observe Subscriber's work and navigation within Spectrum-E and to use the same for ATDI's internal purposes, such as designing new features or other enhancements for Spectrum-E, improving navigation within Spectrum-E, etc., so long as Subscriber's work product is not disclosed outside of ATDI.

RESERVATION OF RIGHTS - SUBSCRIBER. Subscriber retains title to, sole ownership of, and all copyrights and other intellectual property rights in the work product created by Subscriber in using Spectrum-E and all copies thereof, subject to the limited license provided above for ATDI's internal use. Subscriber reserves all rights not expressly granted herein.

RESERVATION OF RIGHTS - ATDI. ATDI retains title to, sole ownership of, and all copyrights and other intellectual property rights in Spectrum-E and all copies thereof. ATDI reserves all rights not expressly granted herein.

CONFIDENTIAL INFORMATION. Subscriber acknowledges that Spectrum-E contains and implements confidential information and techniques developed by ATDI. Subscriber shall not provide demonstrations of, access to, or information relating to the operation, content, or approach of Spectrum-E to any third party without prior consent from ATDI.

SECURITY. Subscriber shall maintain the secrecy of its assigned password and shall not disclose the password to any other party. Upon request after a breach of security, ATDI will assign Subscriber a new password.

OTHER RESTRICTIONS. Subscriber shall not: (1) sell, sublicense, copy, rent, lend, lease, assign, or in any manner transfer the Subscription or any rights thereunder to any third party; (2) use or operate Spectrum-E for the benefit of, or in connection with activities conducted by, any third party; or (3) download or make any copies of the scripts or other computer code accessible through the ATDI website, or prepare any derivative works based thereon; or (4) decompile, reverse engineer, attempt to discover the source code of, modify, or create derivative works based on Spectrum-E

RESPONSIBILITY FOR USE. Subscriber is solely responsible for all use of Spectrum-E by any party (other than ATDI) under Subscriber's assigned password.

THIRD PARTY DATA. Spectrum-E uses data derived from various third party sources which are believed to be generally reliable but which ATDI is unable to test and verify. ACCORDINGLY, SUBSCRIBER USES SPECTRUM-E AT ITS OWN RISK AND ASSUMES ALL RISK OF ERRORS AND/OR OMISSIONS IN THE DATA WHICH SPECTRUM-E ACCESSES.

VERIFICATION OF RESULTS. Spectrum-E incorporates sophisticated knowledge, formulas, and algorithms which ATDI believes to be accurate and applies such knowledge to complex problems in a manner which ATDI believes to be correct. However, Spectrum-E is not a substitute for professional judgment or expertise. Subscriber agrees to verify all results produced by Spectrum-E in an appropriate manner before acting or otherwise relying on them.

SOFTWARE WARRANTIES. Subject to the Exclusions stated below, ATDI warrants that Spectrum-E, in the form hosted by ATDI and during the Subscription Term, will: (1) operate substantially in accordance with the online user documentation provided by ATDI; (2) operate on a substantially uninterrupted basis (except when downtime is due to scheduled maintenance conducted during U.S. non-business hours or power failure, interruption of Internet service or access, failure of third party software components or equipment, other infrastructure failure, or other cause beyond the reasonable control of ATDI); (3) not infringe any U.S. patent or registered U.S. copyright; and (4) not contain any virus, worm, Trojan horse, or other undocumented harmful code which is propagated to Subscriber's computers or computer systems.

EXCLUSIONS. THE FOREGOING SOFTWARE WARRANTIES DO NOT EXTEND TO PROBLEMS WHICH RESULT FROM: (1) EQUIPMENT, SOFTWARE, OR SERVICES PROVIDED BY ANY PARTY OTHER THAN ATDI; (2) ANY VIRUS, WORM, TROJAN HORSE, OR OTHER HARMFUL CODE INTRODUCED BY ANY PARTY OTHER THAN ATDI; (3) POWER FAILURE, INTERRUPTION OF INTERNET SERVICE OR ACCESS, OR OTHER INFRASTRUCTURE FAILURES; (4) ERRORS OR OMISSIONS IN THE DATA USED BY SPECTRUM-E; OR (5) ANY OTHER CAUSE NOT ATTRIBUTABLE TO A MALFUNCTION IN SPECTRUM-E.

DISCLAIMER. ATDI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT. ATDI DOES NOT WARRANT THAT SPECTRUM-E WILL BE FREE OF ERRORS OR SATISFY SUBSCRIBER'S NEEDS. ATDI DOES NOT WARRANT THAT SUBSCRIBER'S USE OF SPECTRUM-E WILL RESULT IN A NETWORK WHICH OPERATES IN THE MANNER SUBSCRIBER PLANNED OR HOPED, OR IN THE MANNER SUGGESTED BY THE RESULTS OF SPECTRUM-E.

EXCLUSIVE REMEDY - BREACH OF WARRANTY. ATDI will make commercially reasonable efforts to cure any breach of the foregoing Software Warranties which is reported by Subscriber in writing during the Subscription Term, accompanied by a specific description of the breach and, if applicable, the circumstances under which the breach has been observed. In addition, ATDI will extend the Subscription Term without additional charge by one additional day for each full day by which an interruption in service in violation of the uptime warranty stated above. ATDI shall have no obligation, however, with respect to any breach which it is unable to reproduce or verify, or at any time when the Subscription is no longer active or when Subscriber is in default of any of its obligations under these Terms of Service. Subscriber shall provide reasonable cooperation and assistance to ATDI in its attempts to correct any breach, and Subscriber shall take reasonable measures to avoid or reduce any damages likely to result from any breach. THE FOREGOING STATES ATDI'S SOLE OBLIGATION, AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY BREACH OF WARRANTY BY ATDI.

EXCLUSIONS OF LIABILITY. ATDI SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM: (1) SUBSCRIBER'S FAILURE TO MAINTAIN THE SECRECY OF ITS USER ID OR PASSWORD; (2) USE OF SPECTRUM-E BY SUBSCRIBER OR BY ANY THIRD PARTY (OTHER THAN ATDI) UNDER SUBSCRIBER'S ASSIGNED PASSWORD; (3) ERRORS OR OMISSIONS IN THE DATA USED BY OR DERIVED FROM SPECTRUM-E; (4) MISTAKES MADE BY SUBSCRIBER IN APPLYING THE DATA OR OTHER RESULTS DERIVED FROM SPECTRUM-E; (5) THE QUALITY, CONFIGURATION, OR OPERATION OF SUBSCRIBER'S NETWORK OR ANY OF ITS COMPONENTS; OR (6) INCORRECT CONCLUSIONS OR RECOMMENDATIONS, OR OTHER ERRORS OR INACCURACIES, IN THE RESULTS PRODUCED BY SPECTRUM-E.

LIMITATIONS ON DAMAGES. ATDI SHALL NOT IN ANY EVENT BE LIABLE TO SUBSCRIBER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, NOR FOR ANY DAMAGES FOR LOST OR CORRUPTED DATA, LOST PROFITS, LOST REVENUES, LOST OPPORTUNITIES, LOST STAFF OR MANAGEMENT TIME, OR INTERRUPTION OF BUSINESS. ATDI'S TOTAL LIABILITY TO SUBSCRIBER FOR ALL MATTERS ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE QUALITY, PERFORMANCE, RESULTS, USE OF, OR INABILITY TO USE SPECTRUM-E SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE LESSER OF $1,000 OR THE MONTHLY AMOUNT OF THE SUBSCRIPTION FEE PAID BY SUBSCRIBER FOR THE SUBSCRIPTION TERM DURING WHICH THE CLAIM AROSE.

TERMINATION FOR NON-PAYMENT. If the payment for any new or renewal Subscription Term is rejected, dishonored, reversed, or otherwise not collected, the Subscription will terminate automatically without notice, and Subscriber's access to Spectrum-E will immediately terminate.

TERMINATION. ATDI reserves the right to refuse and/or terminate the Subscription for any reason in its sole discretion, including, but not limited to, a belief by ATDI that: (1) Subscriber's conduct violates applicable law or these Terms of Service, or is harmful to the interests of ATDI or other Users; (2) Subscriber's usage of Spectrum-E is excessive, for the benefit of any company other than Subscriber's company, or inappropriate in any manner; or (3) Subscriber is or works for or on behalf of a competitor of ATDI. If ATDI terminates the Subscription in the absence of a breach of these Terms of Service or a tortious or illegal act by Subscriber, Subscriber will receive a pro rata refund of any prepaid but unused portion of the Subscription Fee upon Subscriber's re-submission of the credit card, debit card, or other payment information used to purchase or renew the Subscription. Otherwise, Subscriber will not receive a refund.

TERMINATION FOR OTHER BREACH. Either party may terminate the Subscription for material breach by the other party of any obligation under these Terms of Service which is not cured within ten days after receipt of written notice specifying the breach. If termination results from breach by ATDI, Subscriber shall be entitled to a pro rata refund of the Subscription Fee for the portion of the Subscription Term which follows the effective date of termination. If termination results from a breach by Subscriber, Subscriber shall not be entitled to a refund. Subscriber acknowledges and agrees that ATDI may terminate Subscriber's access to Spectrum-E, without liability, upon any termination of the Subscription and that Spectrum-E may not be accessed or operated by Subscriber after termination of the Subscription.

NO REFUND FOR TERMINATION WITHOUT BREACH. If Subscriber terminates the Subscription after the trial period described above but before expiration of the Subscription Term and with no material breach of these Terms of Service by ATDI, Subscriber shall not be entitled to a refund of any portion of the Subscription Fee paid.

INDEMNITY BY SUBSCRIBER. Subscriber agrees to defend and indemnify ATDI against all claims, damages, judgments, awards, settlements, fees of attorneys and experts, other litigation costs, and other expenses and losses of any kind which result from any: (1) breach by Subscriber of any obligation under these Terms of Service; (2) use of Spectrum-E by Subscriber or by any party (other than ATDI) under Subscriber's assigned password; or (3) illegal, tortious, or wrongful act or omission by Subscriber.

MODIFICATION. These Terms of Service may only be modified by Subscriber's acceptance (including by clicking the "Accept" button) of a later version of these Terms of Service posted by ATDI. Neither the course of conduct between the parties, nor trade practice, nor the terms of any purchase order or other document issued by Subscriber shall act to modify any provision of these Terms of Service or of any other legal notice posted by ATDI on this website.

ENFORCEMENT COSTS. ATDI shall be entitled to recover its fees of attorneys and experts and other costs reasonably incurred in collecting any amounts due under these Terms of Service, enforcing ATDI's intellectual property or other rights, and/or defending any claims asserted unsuccessfully by Subscriber.

GOVERNING LAW AND FORUM. These Terms of Service shall be governed by and construed in accordance with the laws of Virginia, without giving effect to choice of law provisions. All disputes arising out of or relating to these Terms of Service or the quality, performance, results, use of, or inability to use Spectrum-E shall be resolved in the state or federal court serving McLean, Virginia. Each party consents to, and waives any right to object to, the jurisdiction and venue of such courts. Notwithstanding the foregoing, ATDI may seek and obtain injunctive or other equitable relief in any court of competent jurisdiction.

NO ASSIGNMENT. Subscriber may not assign these Terms of Service, the Subscription, or any rights under these Terms of Service or the Subscription to any third party.

NOTICES. All notices under these Terms of Service shall be given in writing and sent by electronic mail to, in the case of ATDI, Spectrum-E@atdi.us.com, or in the case of Subscriber, the electronic mail address provided by Subscriber on the Spectrum-E Order or Renew Subscription page of the ATDI website.

ENTIRE AGREEMENT. These Terms of Service state the complete, final, and exclusive agreement of the parties concerning its subject and supersede all earlier oral and written agreements, proposals, representations, and other communications.

I REPRESENT THAT I AM THE PERSON IDENTIFIED ON THE SPECTRUM-E ORDER OR RENEW SUBSCRIPTION PAGE OF THE ATDI WEBSITE WHICH I SUBMITTED, AND I AGREE TO BE LEGALLY BOUND BY THE TERMS OF SERVICE STATED ABOVE.

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