MachineQ Platform Terms
 
Welcome to MachineQ - a secure, scalable, cloud-based IoT enablement platform offering fully-integrated gateway and device management, monitoring, and services for the enterprise.  MachineQ is operated by Comcast Cable Communications Management, LLC (together with its operating affiliates, “Comcast”), and is generally comprised of the following: (a) a low-power wide-area network (“Network”), which provides connectivity to compatible devices (“Devices”); (b) a network management platform (“Management Platform”), through which solution providers and their customers can provision and manage Devices, as well as view data delivered from Devices; (c) Comcast-provided network gateways (“Gateways”); and (d) related documentation (“Documentation”).  Clauses (a) through (d) collectively comprise the “MachineQ Platform.”  Comcast also owns and operates a Web-based MachineQ storefront through which Devices, Device development kits, and other equipment may be purchased, and a MachineQ mobile application through which Gateways and Devices may be activated.  Such storefront and mobile application are subject to separate terms and conditions, not these Terms.   
 
Before accessing or using any aspect of the MachineQ Platform, you and the legal entity that you represent must agree to these MachineQ Platform Terms (the “Terms”).  PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING ANY ASPECT OF THE MACHINEQ PLATFORM.  These Terms are between Comcast and the legal entity named in a paper or electronic registration process, statement of work, purchase order, or similar paper or electronic document, including any electronic ordering tool provided by Comcast, that incorporates these Terms by reference (those documents, collectively, “Orders”).  By completing, signing or otherwise accepting an Order (for example, via clicking an “I Accept” button or check box within such electronic ordering tool), you represent to Comcast that you are lawfully able to enter into contracts and have the legal authority to bind the legal entity identified in the applicable Order (“Solution Provider”).  These Terms take effect when Comcast accepts an Order submitted and signed (or otherwise accepted) by Solution Provider, or, if earlier, when Solution Provider accesses or uses any aspect of the MachineQ Platform (“Effective Date”). 
 
1.              Ordering.  Solution Provider may place orders for access to the Management Platform and the Network (“Platform Services”), and support of the Platform Services, Gateways, and Devices (“Support Services”), and for Gateways and Devices, in each case via Orders.  The Platform Services and Support Services are referred to herein as the “Services.”  All Orders are incorporated into these Terms by reference.  For clarity, when and if enabled by Comcast, Solution Provider may submit Orders via the Management Platform or other online ordering tool.
 
2.              Resale.  If approved by Comcast in writing (email sufficing) in advance, then Solution Provider may resell the Services, Gateways, and Devices to Solution Provider’s customers (“End Users”), but only as part of a commercial offering that includes Gateways, Devices, and other value-added products and services provided by Solution Provider (collectively, the “Solution”), for example, a landscape management solution that uses data collected over the Network from ground-moisture-sensing Devices.  Solution Provider may also use the MachineQ Platform and Services for its own benefit, in which case Solution Provider is also an End User.  Solution Provider is responsible for its End Users’ use of the MachineQ Platform and Services, and compliance with these Terms.  Solution Provider shall be liable to Comcast for such use and compliance (or lack thereof).  Solution Provider shall not charge fees specifically for the Services.  Solution Provider may charge fees for the Solution, Gateways, and Devices, which includes, among other things, access to the Services, provided that Solution Provider does not use Comcast’s name, trademarks, or service marks, to sell, bill for, advertise, promote, or market the Solution, Services, Devices, or Gateways, without obtaining Comcast’s prior written consent (email sufficing) in each instance.
 
3.              Services. 
 
a.              Generally.  Subject to these Terms, Comcast shall provide the Gateways, Devices, and Services as set forth in the applicable Order and in the territory set forth in such Order (the “Territory”).  If no territory is set forth in an Order, then the Territory for such Order is the United States.  Solution Provider shall be solely responsible, at its own cost, for ensuring it has access to a sufficient, working Internet connection for purposes of using the Services, including accessing the Management Platform and the data and analytics made available through it.   
 
b.              Integration.  Solution Provider shall ensure that: (i) only Devices then-currently in the Territory access the Network, and then for the sole purpose of transmitting data to, and receiving data from the MachineQ Platform; and (ii) it and its End Users use the Management Platform solely for managing Gateways and Devices (e.g., activate, provision, decommission) and accessing data that was transmitted to or from Devices over the Network (“Device Data”).  Solution Provider may request that Comcast configure the MachineQ Platform (or subject to feature availability, Solution Provider may be able to configure the MachineQ Platform) to transmit Device Data to one or more third-party platforms via a Comcast-provided API.  Solution Provider shall have a written agreement in place with each third party platform provider and Solution Provider acknowledges that Comcast is not liable for such third-party providers, their platforms, or Solution Provider’s use thereof.  In addition, Comcast may provide Solution Provider with access to one or more APIs through which Solution Provider can interact with the MachineQ Platform.  The “MachineQ Platform” includes such APIs and the “Services” include Solution Provider’s access and use of such APIs.
 
c.              Credentials.  Comcast will provide Solution Provider with username and password combinations (and Solution Provider’s administrators may create additional username and password combinations), as well as other authentication mechanisms, such as API keys (collectively, “Credentials”), for Solution Provider’s employees to use to access the Services.  Solution Provider is responsible for maintaining the confidentiality of the Credentials, and for all activities performed using the Credentials.  Solution Provider shall not share the Credentials with any third party, and will notify Comcast immediately if it knows, or reasonably suspects that, a third party is using such credentials.
 
d.              Professional Services.  To the extent that an Order includes Comcast’s performance of professional services (e.g., a site survey, assistance installing Gateways or Devices), such professional services are subject to the terms and conditions attached hereto as Exhibit A. 
 
4.              Gateways, Comcast-Provided Devices, and Comcast-Enhanced Devices. 
 
a.              Generally.  Solution Provider may purchase or lease, from Comcast, Gateways or Devices (“Comcast-Provided Devices”), as further set forth in the applicable Order.  Solution Provider may also purchase or lease from third parties, Devices that contain Embedded Software (as defined below) that has been enhanced or improved by Comcast (“Comcast-Enhanced Devices”).  Comcast, or the applicable Comcast-Enhanced Device distributor or OEM, will use commercially reasonable efforts to identify such Comcast-Enhanced Devices to Solution Provider.  Before ordering Gateways or Comcast-Provided Devices, Solution Provider shall evaluate the availability of Network coverage in and around all planned Device locations and determine the necessity of Gateways at those locations.  Except as otherwise expressly agreed in writing by Comcast, Comcast will ship (Ex Works, Incoterms 2010) Gateways and Comcast-Provided Devices to the locations set forth in the applicable Order.  The parties agree that time is not of the essence for such shipment.  Comcast shall advise Solution Provider of the U.S. export classification information, if applicable, of the Comcast-Provided Devices. As applicable, Solution Provider shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its export of the Comcast-Provided Devices from the United States.  If Solution Provider purchases Gateways or Comcast-Provided Devices, then title to those Gateways or Comcast-Provided Devices (as applicable) (but not the Embedded Software within them) transfers from Comcast to Solution Provider upon Solution Provider’s payment in full for such Gateways or Comcast-Provided Devices, provided that Solution Provider’s or an End User’s ability to access and use the Embedded Software on such Gateway or Comcast-Provided Device may be subject to continued payment of a monthly license fee as set forth in the applicable Order.  If Solution Provider leases Gateways or Comcast-Provided Devices, then title to Gateways or Comcast-Provided Devices (as applicable) remains with Comcast.  Solution Provider shall ensure that, during the Term, it and its End Users use Gateways, Comcast-Provided Devices, and Comcast-Enhanced Devices only in connection with its and their permitted use of the MachineQ Platform, and shall not use them in connection with any other network, platform, or service.  Except for cellular backhaul service set forth in an Order, Solution Provider is required to ensure that Gateways have access to the Internet, through an Ethernet or cellular backhaul, or otherwise.  Such Internet access is not subject to these Terms, and may be subject to additional terms and conditions with Comcast or another service provider.
 
b.              Access.  Solution Provider shall provide, or use commercially reasonable efforts to arrange for End Users to provide, free and reasonable access to any areas necessary for Comcast or Comcast’s service providers to: (i) perform the Services; and/or (ii) perform (at Comcast’s expense and upon reasonable notice during the applicable location’s regular business hours) any repairs, troubleshooting or other support service in connection with the Network, Gateways, or Comcast-Provided Devices whether being used by Solution Provider, End Users, or other customers of Comcast (“Access”).  For clarity, this clause does not affect the obligations of Solution Provider and its End Users to install and use Gateways and Devices in accordance with the Specifications (as defined below).  Solution Provider shall not, and shall not permit any third party to, modify Gateways or Comcast-Provided Devices to prevent Comcast’s use of or access to Gateways or Comcast-Provided Devices during the Term.  Comcast shall not be deemed to be in breach of these Terms, or liable for any delay or failure to perform any obligation under these Terms, where caused by a lack of Access.  Solution Provider consents to Comcast remotely updating, during the Term, the software contained within Gateways and Comcast-Provided Devices.
 
c.              Ancillary Materials.  Comcast will provide additional physical materials for use in connection with Gateways and Comcast-Provided Devices, such as antennae and mounting brackets (collectively, “Ancillary Materials”) as further set forth in the applicable Order.  Ancillary Materials are provided by Comcast as-is, and subject to the disclaimer of warranties set forth in Section 15.  Ancillary Materials may be subject to the warranties of their respective manufacturers.  Subject to its rights to do so, Comcast will furnish and assign those warranties to Solution Provider on written request made during the Term.  Comcast will not be liable for any breach of such warranties.
 
d.              Risk of Loss.  Solution Provider is responsible for all damage to leased Gateways and Comcast-Provided Devices beyond normal wear and tear.  At the termination or expiration of the applicable Order, Solution Provider will promptly return to Comcast all leased Gateways and Comcast-Provided Devices.  If Comcast has not received all leased Gateways and Comcast-Provided Devices from Solution Provider within seven (7) days of the termination or expiration of the applicable Order, then Comcast will invoice Solution Provider for the full replacement cost of such unreturned Gateways and Comcast-Provided Devices, at Comcast’s then-current rates.  Solution Provider is responsible for, and Comcast has no liability with respect to, any damage to, or loss of, Gateways or Comcast-Provided Devices caused by Solution Provider’s or any End Users’ acts or omissions or noncompliance with these Terms, or by fire, theft, or casualty (“Hardware Loss”).  In order to avoid a related Service interruption, Solution Provider shall promptly notify Comcast of any Hardware Loss of which it is or becomes aware, and, if desired, arrange for the replacement of the applicable Gateways and Comcast-Provided Devices at Solution Provider’s sole cost and expense.  Solution Provider acknowledges that if it does not arrange for replacement Gateways and Comcast-Provided Devices after a Hardware Loss, then: it may be unable to access or use the Network; Comcast has no liability for such inability; and Solution Provider shall not be entitled to a refund of any Fees.  Solution Provider will insure all leased Gateways and Comcast-Provided Devices against Hardware Loss, in an amount not less than the full cost of replacement of Gateways and Comcast-Provided Devices, and provide proof of insurance to Comcast on request. 
 
e.              Comcast Code.  Comcast may provide Solution Provider with source code, binaries, or executables that relate to Gateways or Devices (collectively, “Comcast Code”).  Comcast Code includes all modifications and derivative works thereof (regardless of whether made by Comcast, Solution Provider, or a third party acting on Solution Provider’s behalf).  Comcast Code is Comcast’s Confidential Information.  Solution Provider shall use, and ensure that its End Users shall use, Comcast Code only in connection with its and their permitted use of the MachineQ Platform, and shall not use it in connection with any other network, platform, or service.  Solution Provider will provide Comcast with a copy of all modifications and derivative works of the Comcast Code, made by Solution Provider or third party acting on Solution Provider’s behalf, in source and object code forms, together with all related build and linking instructions, on Comcast’s request.   Solution Provider will not take any action that subjects the Comcast Code to terms or conditions that are inconsistent with these Terms or that impose any further obligations on Comcast (including, without limitation, open source or similar obligations) with respect to the Comcast Code or derivatives thereof.
 
5.              Prohibited Uses.  Solution Provider shall not, and shall not permit any third party to, and shall ensure that its End Users do not, use any aspect of the MachineQ Platform or Services: (i) in violation of any law, rule, regulation, or policy of any government authority; (ii) for any use as to which Solution Provider (or its End User, as applicable) has not obtained all required government approvals, authorizations, licenses, consents, and permits; (iii) to interfere with the use of the Services or MachineQ Platform by others; (iv) to interfere with the operation of the Network; (v) to take any action that, if taken using XFINITY Internet, would be a violation of Comcast’s Acceptable Use Policy for XFINITY Internet, located at: https://www.xfinity.com/corporate/customers/policies/highspeedinternetaup, as such policy may be updated by Comcast from time-to-time;  or (vi) in violation of any of the third-party restrictions that are described in more detail here: http://connectivityondemand.MachineQ.com, or its successor URL (“MachineQ Website”), as such restrictions may be updated by Comcast from time-to-time.  Comcast’s action or inaction in enforcing prohibited uses will not constitute review or approval of Solution Provider’s or any End Users’ use of, or information transmitted in connection with, the Services.    
 
6.              Suspension.  Comcast reserves the right to immediately, and without notice: terminate or suspend, in whole or in part, the Services (including Solution Provider’s access to the Management Platform or the Network); and/or delete any Device Data in its possession, if: (i) Solution Provider is in breach of these Terms; (ii) Comcast determines that doing so is necessary to prevent itself, any aspect of the MachineQ Platform, or its end users from harm; or (iii) Comcast’s provision of the Services or MachineQ Platform has become materially burdensome due to a change in law, rule, or regulation enacted after the Effective Date.  Comcast will use commercially reasonable efforts to limit any suspension or termination under Section 6(ii) to the applicable End User or affected device.
 
7.              Support.  Comcast shall provide Support Services in accordance with the MachineQ Support Terms located on the MachineQ Website, as such terms may be updated by Comcast from time-to-time.  Solution Provider shall cooperate with Comcast in connection with Support Services, including taking the actions reasonably requested by Comcast in furtherance of Comcast’s provision of Support Services.  For clarity: (i) Comcast will provide Support Services directly to Solution Provider, and Solution Provider will provide support to End Users; and (ii) Comcast’s support obligations apply only to issues caused by the MachineQ Platform and do not include issues caused by the Solution or Third-Party Devices, or the MachineQ Platform’s interoperability with them.  Solution Provider will not provide Comcast’s contact information to End Users or encourage End Users to contact Comcast for support.  Comcast may terminate these Terms immediately on written notice to Solution Provider if End Users repeatedly contact Comcast for support.
 
8.              Third-Party Devices. 
 
a.                Generally.  Solution Provider and its End Users may develop their own Devices or obtain Devices from third parties, and such Devices are collectively “Third-Party Devices.”  Solution Provider shall ensure that, while accessing or using the MachineQ Platform: (i) Third-Party Devices comply with the technical specifications and other documentation relating to the operation of the Services and MachineQ Platform, which specifications and other documentation are located on the MachineQ Website, or otherwise provided to Solution Provider by Comcast in writing, and may be updated by Comcast from time-to-time (the “Specifications”); and (ii) Third-Party Devices are provisioned and maintained in accordance with the Specifications.  Comcast has no obligation to install, operate, repair, or maintain any equipment used by Solution Provider or its End Users in connection with the Services, other than Gateways and Comcast-Provided Devices, and then only as expressly set forth in these Terms.
 
b.                Solution Provider Responsibilities.  Solution Provider agrees that it is solely responsible for: (i) providing the Third-Party Devices, incorporating network interfaces into the Third-Party Devices, and the overall performance of the Third-Party Devices, including the accuracy of any data that is produced by the Third-Party Devices; (ii) any and all interactions with End Users, including interactions related to the installation, service and/or sales support as it relates to the Third-Party Devices and/or Gateways; and (iii) complying with all legal and regulatory requirements as it relates to its End Users and its business.  Solution Provider is also responsible for any encryption or other security measures with respect to data it, its End Users, or Third-Party Devices transmit over the Network.
 
c.                Updates.  Solution Provider is solely responsible for providing all software updates and/or enhancements (the “Updates”) to, and any support, maintenance, repair, operation and replacement of, all Third-Party Devices.  Comcast, its affiliates, and its and their officers, directors, employees, agents, contractors, suppliers, and distributors (collectively, the “Comcast Parties”) will not be liable for any damage to Third-Party Devices.  On Solution Provider’s request, Comcast may use the Network to distribute Updates to Third-Party Devices on Solution Provider’s behalf.  Solution Provider is solely responsible for such Updates, including their compliance with applicable law and the Specifications.  Solution Provider shall deliver such Updates to Comcast in a mutually-agreed electronic format.  In the event that Comcast delivers Updates as described in this section, Solution Provider grants to Comcast a nonexclusive, transferable (as part of a permitted transfer of these Terms), sublicensable (to Comcast’s service providers, as necessary for them to assist Comcast with exercising its rights or performing its obligations in these Terms), royalty-free, worldwide license to copy and distribute such Updates and the intellectual property therein, for the sole purpose of distributing such Updates to Third-Party Devices through the Network.
 
9.              Non-Exclusive.  Solution Provider acknowledges and agrees for itself and its End Users that: (a) Comcast is providing it with access to the MachineQ Platform and Services on a non-exclusive basis, and that the MachineQ Platform is a multi-tenant environment (i.e., may be used by Comcast to provide services to other Comcast customers); and (b) nothing in these Terms precludes Comcast from using the MachineQ Platform (including the specific Gateways sold or leased to Solution Provider or its End users) to provide services to other Comcast customers, provided that doing so does not have a material, negative impact on Solution Provider’s or its End Users’ use of the Services.
 
10.           Fees. 
 
a.              Amounts.  Comcast will charge Solution Provider fees for Solution Provider’s and its End Users’ use of the MachineQ Platform and Services (“Fees”).  These Fees shall be set forth on the applicable Order or on the MachineQ Website, and may be updated by Comcast from time-to-time.  To the extent of a conflict between the two, Fees set forth in a mutually accepted Order shall take precedence over Fees set forth on the MachineQ Website.  For clarity, Fees are due regardless of whether Solution Provider or its End Users actually use the MachineQ Platform or Devices.  Decommissioning, or nonuse, of the MachineQ Platform or Devices will not entitle Solution Provider or its End Users to a refund or credit of any Fees.
 
b.              Invoicing and Payment.  Except as otherwise indicated in these Terms or an Order: (i) Comcast shall invoice Solution Provider for one (1) year of the monthly recurring Services Fees and Support Fees upon acceptance of the applicable Order; and (ii) If Solution Provider or its End Users add Fee-generating elements of the MachineQ Platform after the initial Order, then Comcast shall invoice Solution Provider for one (1) year of the monthly recurring Services Fees and Support Fees starting as of such addition.  Comcast shall invoice all other Fees (including Fees for the purchase or lease of Gateways or Comcast-Provided Devices) monthly in arrears.  Solution Provider shall pay all invoices in U.S. Dollars, within thirty (30) days after the invoice date.  Any Fees not paid to Comcast within such period will be considered past due and subject to a late charge of 1.5% per month or the highest rate allowed by law, whichever is lower.  If Solution Provider’s account is delinquent or Solution Provider or its End User fails to return Gateways or Comcast-Provided Devices in accordance with these Terms, then Comcast may refer the account to a collection agency or attorney that may pursue collection or return.  If Comcast uses a collection agency or attorney to collect any amount owed by Solution Provider or any unreturned Gateways or Comcast-Provided Devices, then Solution Provider shall pay all reasonable costs of collection or other action.  The remedies set forth in this section are in addition to, and not in limitation of, any other rights and remedies available to Comcast under these Terms or at law or in equity.
 
c.              Partial Payment.  Partial payment of any invoice will be applied to Solution Provider’s outstanding Fees in amounts and proportions solely determined by Comcast.  Acceptance of partial payment(s) by Comcast is not a waiver of any rights to collect the full balance owed under these Terms.
 
d.              Taxes and Fees.  Except to the extent that Solution Provider provides Comcast a valid tax exemption certificate before the delivery of Services, Solution Provider is responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated) relating to the Services, Devices, and/or Gateways.  Solution Provider shall also pay any fees, payment obligations and taxes that become applicable retroactively in connection with the Services, Devices, and/or Gateways.
 
e.              Other Government-Related Costs and Fees.  Comcast reserves the right to invoice Solution Provider for any fees or payment obligations imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the MachineQ Platform or Services, including, without limitation, applicable right of way fees.  This reservation is regardless of whether Comcast or its affiliates pay the fees directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Solution Provider.  Taxes and other government-related fees and surcharges may be changed with or without notice.  In the event that any newly adopted law, rule, regulation or judgment increases Comcast’s costs of providing the MachineQ Platform or Services, Solution Provider shall pay those increased costs.
 
f.               Referral Fees.  Comcast may refer to Solution Provider third parties that desire to purchase products or services from Solution Provider (“Leads”).  These Leads will be provided by Comcast in writing (email sufficing).  If such Leads purchase products or services from Solution Provider, then Solution Provider will pay Comcast ten percent (10%) of all revenue received from such Leads (“Referral Fees”), for so long as Solution Provider receives revenue from such Leads.  On the thirtieth (30th) day of each calendar quarter, Solution Provider shall pay Comcast all Referral Fees received during the immediately preceding calendar quarter and include with such payment a report detailing the calculation of the Referral Fees on a per Lead basis.  Comcast and its representatives may examine all books, records and files maintained by Solution Provider that are necessary to verify the accuracy of Referral Fees (“Records”).  Upon ten (10) days’ prior written notice, Solution Provider shall make Records available to Comcast for examination at Solution Provider’s address set forth in the Agreement.  Such examination shall be conducted at Comcast’s expense, except where a discrepancy exceeding three percent (3%) is found, in which case Solution Provider will pay all reasonable costs associated with such examination.  Solution Provider will pay the Referral Fees in U.S. dollars, by wire to the bank account requested by Comcast or via check delivered to a location requested by Comcast.
 
11.           Fraudulent Use.  Solution Provider is responsible for all Fees attributable to its Services account, even if incurred as the result of fraudulent or unauthorized use of the Services or Credentials (“Fraudulent Use”), except to the extent such Fraudulent Use is attributable to Comcast’s gross negligence or willful misconduct.  Comcast may, but is not obligated to, detect or report Fraudulent Use to Solution Provider of the Services.  Comcast reserves the right to restrict, suspend, or discontinue providing any Services, in whole or in part, in the event Fraudulent Use of the Services is identified, until such time as the Fraudulent Use has been stopped and Comcast is reasonably certain that it will not recur.
 
12.           Term; Termination. 
 
a.              Term.  These Terms commence on the Effective Date and continue until terminated by either party as permitted in this section (the “Term”). 
 
b.              Termination for Cause.  Either party may terminate these Terms or an Order (as applicable), without further liability or obligation, on written notice to the other party if: (i) the other party is in material breach of these Terms or the Order (as applicable), and that breach is not cured within thirty (30) days after receiving written notice thereof from the non-breaching party; (ii) the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal, state or foreign statutes which is not rescinded or dismissed within sixty (60) days; (iii) the terminating party (including, in the case of Comcast, the MachineQ segment of Comcast’s business) is dissolved, liquidated or wound-up, or ceases to offer the Services, Support, MachineQ Platform, or Gateways; or (iv) Solution Provider fails to use Devices or the MachineQ Platform in accordance with the Specifications. 
 
c.              Termination for Convenience.  Notwithstanding anything to the contrary in these Terms, either party may terminate these Terms at any time, upon sixty (60) days’ prior written notice to the other party, provided that these Terms will continue to govern, and Comcast shall continue to provide, any pre-paid Services and Support with respect to any Devices and Gateways activated before such termination date.
 
d.              Effect.  Termination of these Terms will also terminate all Orders then-currently in effect.  Upon the expiration or termination of an Order, except as set forth in Section 12(c): Comcast may immediately stop providing the Services, Support, and access to the leased Gateways and Comcast-Provided Devices set forth in such Order; Solution Provider and its End Users and each of their Devices shall immediately stop accessing the Network, MachineQ Platform, and leased Gateways and Comcast-Provided Devices set forth in such Order; and all licenses granted in these Terms that are applicable to such Order will immediately end.
 
e.              Survival.  The following sections survive termination or expiration of these Terms: 10(b) (to the extent any Fees were due as of the effective date of termination or expiration), 10(f), 12(d), 12(e), 13(a)(i), 13(a)(iv), 13(b)(i), 13(b)(iv), 15, 16, 17, 19 (for a period of three (3) years), and 20.
 
13.           Intellectual Property.
 
a.              Comcast. 
 
                                    i.                Ownership.  As between Comcast and Solution Provider, Comcast retains ownership of the MachineQ Platform and Services, Comcast Code, Gateways and Comcast-Provided Devices leased by Solution Provider, all software contained within Gateways, Comcast-Provided Devices, and Comcast-Enhanced Devices (“Embedded Software”) (regardless of whether Gateways containing such Embedded Software are sold or leased to Solution Provider), and the format, design, layout and other pre-existing Comcast materials that are incorporated into the presentations of Device Data generated by the MachineQ Platform, such as report templates (collectively, “Comcast Materials”), and all intellectual property therein.  These Terms do not grant any implied licenses to any of the foregoing.  Notwithstanding the foregoing, title and risk of loss to any Gateways and Comcast-Provided Devices purchased by Solution Provider under these Terms, as well as the corresponding Ancillary Materials, passes to Solution Provider as set forth in Section 4(a).
 
                                   ii.                License.  Subject to Solution Provider’s compliance with these Terms (including paying the Fees), Comcast grants Solution Provider a non-exclusive, non-transferable, non-sublicensable, limited, revocable, royalty-free license, in the Territory, during the term of the applicable Order to: (A) have its and its End Users’ Devices access and use the Network in accordance with the Specifications; (B) access and use the Platform Services, solely via the interfaces made available by Comcast (e.g., Web-based portal, API), in accordance with the Specifications; (C) execute the Embedded Software, solely on Gateways, Comcast-Provided Devices, and Comcast-Enhanced Devices (as applicable) on which it was installed by Comcast or the OEM (as applicable); (D) make a reasonable number of copies of the Documentation as necessary to support its and its End Users’ use of the MachineQ Platform; (E) internally use, reproduce, modify, and create derivative works of the source code form of the Comcast Code; and (F) compile the source code form of the Comcast Code into executable form, and copy and distribute binaries and executables of Comcast Code solely as necessary to install and run them on Gateways and Devices (as applicable) so that the Gateways and Devices (as applicable) can communicate with the MachineQ Platform (and, for clarity, this license does not apply to the extent that a Gateway or Device communicates with another network, platform, or service).
 
                                  iii.                Restrictions.  Unless expressly permitted in these Terms, Solution Provider shall not, and shall not permit any third party to: (A) sublicense, sell, rent, lease, transfer, assign, or distribute the Comcast Materials to third parties; (B) hack or modify the Credentials, or try to avoid or change any registration or authentication process Comcast implements; (C) modify or create derivative works of the Comcast Materials; (D) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Comcast Materials or attempt to derive any of their source code, in whole or in part, except to the extent such activities are expressly permitted by law; (E) modify, obscure, or delete any proprietary rights notices included in or on the Comcast Materials; or (F) use any Comcast Materials beyond the duration of the applicable Order.
                                  iv.                Feedback.  Solution Provider irrevocably assigns to Comcast all right, title, and interest in and to the Comcast Feedback and agrees to provide Comcast any assistance it requires to document, perfect, and maintain its rights in the Comcast Feedback, at Comcast’s expense.  “Comcast Feedback” means all comments, suggestions, or other feedback relating to the Comcast Materials that are provided by Solution Provider.
 
b.              Solution Provider.
 
                                  i.                  Ownership.  As between Comcast and Solution Provider, Solution Provider retains ownership of the Third-Party Devices, Device Data, and Updates, and all intellectual property therein (“Solution Provider Materials”).  Notwithstanding anything to the contrary in these Terms, Comcast may collect information relating to Solution Provider’s and its End Users’ access and use of the Comcast Materials, as well as derive information through analyzing the Device Data together with other Service data (collectively, “Learnings”).  Comcast owns the Learnings and intellectual property in them and may use and disclose Learnings for its business purposes, provided that Comcast does not disclose Learnings in a manner that identifies Solution Provider, its End Users, or their Devices, without Solution Provider’s prior written consent, unless otherwise required by law.
 
                                 ii.                  License.  Solution Provider grants Comcast a non-exclusive, worldwide, royalty-free license, during the Term to copy, create derivative works of, distribute and display the Device Data in connection with providing the Services and Support to Solution Provider and its End Users.  In addition, Solution Provider grants Comcast a non-exclusive, worldwide, royalty-free license, during the Term to use, copy, distribute, and display Solution Provider’s trademarks, logos, service marks, and trade names (collectively, the “Solution Provider Marks”) to identify Solution Provider as a MachineQ Platform user as part of advertising and promoting Comcast’s MachineQ products and services.  Without limiting the foregoing, Solution Provider authorizes Comcast’s use of the Solution Provider Marks in such a manner as to expressly state or imply that Solution Provider is a Comcast customer, and/or user of the Service.  Comcast’s use of the Solution Provider Marks will comply with any branding guidelines provided to Comcast in writing (email included) before each such use.  Other than this license, nothing in these Terms grants Comcast any right, title, or interest in or to the Solution Provider Marks.  Solution Provider may terminate the license to the Solution Provider Marks on ninety (90) days’ prior written notice to Comcast.  For clarity, termination does not affect any licensed use of the Solution Provider Marks before the effective date of termination if that use is no longer within Comcast’s reasonable control (e.g., no obligation to recall previously-distributed materials, such as emails or flyers).
 
                                iii.                  Restrictions.  Unless expressly permitted in these Terms, Comcast shall not, and shall not authorize any third party to: (A) sublicense, sell, rent, lease, transfer, assign, or distribute the Solution Provider Materials to third parties; (B) modify or create derivative works of the Solution Provider Materials; (D) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Solution Provider Materials or attempt to derive any of their source code, in whole or in part, except to the extent such activities are expressly permitted by law; or (E) modify, obscure, or delete any proprietary rights notices included in or on the Solution Provider Materials.
 
                           iv. 	Feedback.  Comcast retains ownership of all right, title, and interest in and to all comments, suggestions, or other feedback provided by Comcast relating to the Solution Provider Materials (collectively, “Solution Provider Feedback”).  Solution Provider Feedback includes any software written by Solution Provider (or a third party on Solution Provider’s behalf) that embodies any comment, suggestion, or other feedback provided by Comcast.  Solution Provider will provide Comcast with a copy of any of such software, in source and object code forms, together with all related build and linking instructions, on Comcast’s request.  Solution Provider Feedback is Comcast’s Confidential Information.  Subject to Solution Provider’s compliance with these Terms, Comcast grants Solution Provider and its End Users a non-exclusive, limited, non-transferable, non-sublicensable, royalty-free license, in the Territory, during the term of the applicable Order to use Solution Provider Feedback solely in connection with the MachineQ Platform (and, for clarity, this license does not apply to the extent that Solution Provider Feedback is used with another network, platform, or service).
 
14.           Representations and Warranties. 
 
a.              Mutual.  Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of organization; (ii) it has the full right, power, and authority, and has obtained all third-party licenses and consents, to enter into these Terms, to grant the rights and, if applicable, the licenses, granted in these Terms, and to perform its obligations in these Terms (including, in the case of Solution Provider, to provide the Device Data and Updates to Comcast, and to provide the Solution to its End Users); (iii) the execution or acceptance of these Terms by its representative has been duly authorized by all necessary corporate or other entity action of the party; (iv) it is, and during the Term will be, in compliance with all local, state and federal laws and regulations and ordinances that are applicable to its exercise of its rights or performance of its obligations under these Terms; and (v) in performing this Agreement, it will comply with all applicable economic sanctions and export control laws of the United States and any other applicable jurisdiction, including by way of example the U.S. Export Administration Regulations and U.S. economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”). 
 
b.              By Comcast.  Comcast represents and warrants to Solution Provider that it shall perform the Services in a good and workmanlike manner.
 
c.              By Solution Provider.  Solution Provider represents and warrants to Comcast that the Device Data, Updates, and any other transmissions made by Solution Provider, its End Users, or Devices using the Network, when delivered to Comcast, will not contain any viruses, malware, or other similar harmful, malicious, or hidden procedures (collectively, “Viruses”), or otherwise infringe on or violate laws or the rights of another.  Solution Provider further represents and warrants to Comcast that: (i) it will not offer the Solution in any country or territory which is itself subject or target of any economic and financial sanctions laws and regulations of the United States (“Trade Controls”) (currently, as of the Effective Date, Syria, Cuba, Iran, North Korea, and the Crimea Region of Ukraine); (ii) it will not use the MachineQ Platform or Services on behalf of or in connection with any transaction or activity involving any entity or person listed in any Trade Controls-related list of designated persons maintained by the United States (each person so listed, a “Sanctioned Person”); and (iii) neither it, nor any of its affiliates involved in performing this Agreement, is a Sanctioned Person or owned (50% or more) or controlled by a Sanctioned Person. 
 
15.           Disclaimer of Warranties.  The Comcast Parties provide Gateways and Comcast-Provided Devices only under the warranties of their respective manufacturers.  Subject to its rights to do so, Comcast will furnish and assign those warranties to Solution Provider on written request made during the Term.  Comcast will not be liable for any breach of such warranty.  THE COMCAST PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE COMCAST MATERIALS.  THE COMCAST PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SUITABILITY, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  THE COMCAST PARTIES DO NOT WARRANT THAT THE COMCAST MATERIALS WILL BE ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT SOLUTION PROVIDER RECEIVES FROM COMCAST OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.  Notwithstanding anything to the contrary in these Terms, in no event will the Comcast Parties be deemed in breach of these Terms, or liable for any loss, damage or claim, arising out of or related to: (a) the Solution, Third-Party Devices, Device Data, or Updates; (b) any act or omission of Solution Provider, its End Users, or other third parties; (c) interoperability, interaction, or interconnection of the Services, Devices, MachineQ Platform, or Gateways with products or services provided by Solution Provider, its End Users, or other third parties (including, but not limited to, the Third-Party Devices); or (d) loss or destruction of any Devices, Updates, Device Data, or other Solution Provider or End User software or data resulting from any Viruses or from any attempt to remove Viruses.  Solution Provider is advised to back up all of its software and data before the commencement of Services and at regular intervals thereafter.
 
16.           Indemnity.
 
a.              By Comcast.  Comcast shall defend Solution Provider, its affiliates, and its and their officers, directors, employees, and agents (collectively, the “Solution Provider Indemnitees”) against any and all third-party allegations, suits, claims, actions or proceedings (each a “Claim”) resulting from or related to: (i) the Service’s infringement of U.S. patent or copyright; and (ii) damage to tangible personal property or real property, and personal injuries (including death), to the extent caused by the gross negligence or willful misconduct of Comcast in the performance of its obligations under these Terms.  Comcast shall indemnify the Solution Provider Indemnitees from any out-of-pocket and reasonably-incurred costs, expenses, and fees (including reasonable attorneys’ fees) (collectively, “Costs”) incurred by the Solution Provider Indemnitees, and damages, awards, fines, penalties, and other amounts (collectively, “Liabilities”) awarded against or owed to a third party by the Solution Provider Indemnitees, resulting from any such Claim. 
 
b.              Exclusions.  Section 16(a) does not apply to any Claims that result from: (i) use of the Services in combination with products or services which were not furnished by Comcast; (ii) modification or alteration of the Services not authorized in writing by Comcast; (iii) use of the Services after Comcast notifies Solution Provider in writing to discontinue use of the Services due to a claim, allegation or proceeding; or (v) use of the Services in breach of these Terms. 
 
c.              Alternatives.  If the Services, or any part thereof, becomes or, in Comcast’s reasonable opinion, are likely to become the subject of a Claim then Comcast may either: (i) procure for Solution Provider the right to continue using such Services; or (ii) replace or modify such Services with a non-infringing substitute.  In the event Comcast is unable, after exercising its reasonable efforts, to implement one of the options set forth in subsection (i) or (ii) within thirty (30) calendar days after becoming aware of any such Claim, then Comcast may terminate these Terms on written notice to Solution Provider.
 
d.              By Solution Provider.  Solution Provider shall defend the Comcast Parties against any and all Claims (including Claims brought by End Users) resulting from or related to: (i) the Solution (including Third-Party Devices), and if Solution Provider is also an End User, its use of the Services; (ii) alleged facts which, if true, would be a breach by Solution Provider of Sections 5, 14(c), or 19; (iii) Updates; (iv) infringement of a third-party intellectual property right by the Solution, Updates, or Devices alone, or in combination with the Comcast Materials; or (v) damage to tangible personal property or real property, and personal injuries (including death) to the extent arising out of the gross negligence or willful misconduct of the Solution Provider Indemnities in the performance of their obligations or exercise of their rights under these Terms.  Solution Provider shall indemnify the Comcast Parties from any Costs incurred by the Comcast Parties, and Liabilities awarded against or owed to a third party by the Comcast Parties, resulting from any such Claim.
 
e.              Procedure.  The obligations under this section will apply only if the indemnified party: (i) notifies the indemnifying party promptly, in writing, upon becoming aware of any threatened or actual Claims (except that the indemnified party’s failure to do so excuses the indemnifying party from performing its obligations only to the extent that the indemnifying party was materially prejudiced by that failure); (ii) permits the indemnifying party to control the defense and settlement of the Claim; and (iii) reasonably cooperates with the indemnifying party (at the indemnifying party’s expense) in the defense and settlement of the Claim.  The indemnifying party may settle any Claim for which indemnification is sought under these Terms; provided, however, to the extent that such settlement admits fault or wrongdoing by the indemnified party or requires the indemnified party to take any action or pay amounts that are not subject to indemnification under this section, then the indemnifying party may not settle such Claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.  The indemnified party may not settle any Claim without the indemnifying party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.  The remedies provided in this Section 16 are the sole and exclusive remedies for any third-party claims described in this Section 16.
 
17.           Limitation of Liability.  NEITHER PARTY, INCLUDING IN THE CASE OF COMCAST, THE COMCAST PARTIES, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, END USERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), WHETHER OR NOT FORESEEABLE, THAT ARISE FROM OR RELATE TO THESE TERMS OR THEIR SUBJECT MATTER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE CLAIMS FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.  EACH PARTY’S, INCLUDING IN THE CASE OF COMCAST, THE COMCAST PARTIES’, MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS AND THEIR SUBJECT MATTER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE AGGREGATE FEES PAID BY SOLUTION PROVIDER TO COMCAST UNDER THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.   THIS SECTION DOES NOT APPLY TO: (A) A PARTY’S BREACH OF SECTIONS 14 OR 19; (B) A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; (C) SOLUTION PROVIDER’S PAYMENT OBLIGATIONS UNDER THESE TERMS; AND (D) SOLUTION PROVIDER’S OBLIGATIONS IN SECTION 16(D).
 
18.           High-Risk Activities. 
 
a.              The Services and MachineQ Platform are subject to: (a) transmission limitations caused by atmospheric and other conditions, availability of radio frequency channels, reduction in transmission speed or interruption caused by Devices, terrain, obstructions such as trees or buildings, or other conditions; (b) temporary suspension due to governmental regulations or orders, system capacity limitations, priority access by governmental national security and emergency preparedness personnel in the event of a disaster or emergency, coordination with other systems, system repairs or modifications, problems with the facilities of interconnecting carriers or in response to suspected fraud, abuse, misuse of the MachineQ Platform, hacking or Viruses; and (c) interruption for Solution Provider’s nonpayment of Fees. 
 
b.              Neither the Services nor the MachineQ Platform are fail-safe or designed or intended for use in situations requiring fail-safe performance. As used in this Section 18(b), “fail-safe” means the absence of error or interruption in performance.  Therefore, neither the Services nor the MachineQ Platform shall be used to support or provide Services to Devices, systems, or services requiring fail-safe performance, including without limitation Devices, systems, or services that: (i) are tasked with shutting down equipment in the event of an emergency, support air traffic control, control equipment for nuclear facilities, etc.; (ii) monitor the integrity, soundness, or capacity of critical infrastructure (e.g., monitoring of vibrations on a bridge to alert to an imminent failure of the structure, air pollutants such as carbon monoxide, people counting for purposes of monitory facility max capacity, etc.); (iii) are “Medical Devices” as defined by the U.S. Food, Drug and Cosmetic Act (FD&C Act), or the European Union Medical Devices Directive (Directive 93/42/EEC), or the Active Implantable Medical Devices Directive (Directive 90/385/EEC), or the EU In Vitro Diagnostic Medical Devices Directive (Directive 98/79/EC), or their local equivalents in other territories and successive legislation; or (iv) transmit business or personal communications where absolutely accurate data or information is required in order to prevent imminent harm to persons or property.
 
19.           Confidentiality. 
 
a.              Confidential Information.  A party’s “Confidential Information” is all information regarding that party’s business which has been marked as or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information includes, even if not marked, these Terms.  Comcast’s Confidential Information includes all Services promotional materials, proposals, quotes, pricing information, as well as Network upgrade information and schedules, network operation information (including, but not limited to, information about outages and planned maintenance) and invoices, as well as the parties’ communications regarding such items.
 
b.              Restrictions.  The receiving party will not use or reproduce the disclosing party’s Confidential Information other than as necessary for the performance of its obligations or exercise of its rights under these Terms, and will disclose the disclosing party’s Confidential Information only to those of its employees, contractors, and agents (“Representatives”) who have a need to know such Confidential Information for the receiving party to perform its obligations or exercise its rights under these Terms and who are subject to obligations of confidentiality that are at least as protective as these Terms.  The receiving party will be liable for all acts and omissions of its Representatives with respect to the disclosing party’s Confidential Information.  The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving party protects its own confidential or proprietary information of a similar nature, and with no less than reasonable care.  Each party’s obligations under this section will continue in full force and effect with respect to Confidential Information of the other party for three (3) years from the date of receipt of such Confidential Information.	
 
c.              Exceptions.  The receiving party’s obligations with respect to any of the disclosing party’s Confidential Information will terminate to the extent such information: (i) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (ii) is disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is at the time of receipt, or through no fault of the receiving party has become, generally available to the public; or (iv) is independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information.  In addition, the receiving party is allowed to disclose the disclosing party’s Confidential Information to the extent that such disclosure is approved in writing by the disclosing party, necessary for the receiving party to enforce its rights under these Terms, or required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly (unless prohibited by law) and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
 
d.              Destruction.  Unless otherwise provided in these Terms, the receiving party will destroy all of the disclosing party’s Confidential Information in the receiving party’s possession or control and delete all electronic copies of such Confidential Information (other than electronic archives that were automatically created in the ordinary course of the receiving party’s business, which remain subject to the obligations in this section) upon the written request of the disclosing party or termination or expiration of these Terms.  Upon request, either party will certify to the other party in writing that it has complied with the requirement in the foregoing sentence.
 
e.              Publicity.  Except with respect to the license in Section 13(b)(ii), these Terms do not give a party the right to use the other party’s or its affiliates’ trademarks, service marks, or trade names, or to otherwise refer to the other party in any marketing, promotional, advertising materials or activities.  Neither party shall issue any publication or press release relating to, or otherwise disclose the existence of, the Services or the terms and conditions of these Terms, except as permitted by these Terms or otherwise consented to in writing by the other party.  Without limiting the generality of the foregoing, the parties shall cooperate in good faith to create a mutually agreeable case study that each party can utilize for marketing purposes.  The content of the case study shall be subject to the agreement of both parties and Solution Provider shall use commercially reasonable efforts to procure authorization to include mention of its End Users as the ultimate recipients of the Services.
 
f.               No Sensitive Information.  Solution Provider shall not disclose to Comcast, or use the MachineQ Platform to process, any Sensitive Information (as defined below) in any form, whether through its, or its End Users’ use of the Comcast Materials or otherwise.  In the event that Solution Provider becomes aware that it has disclosed Sensitive Information to Comcast, Solution Provider shall immediately notify Comcast and take immediate steps to remediate such disclosure.  For purposes of these Terms, “Sensitive Information” means protected health information, payment card industry data, personally identifiable information, and any other sensitive information or information subject to an industry-specific regulation, including credit card information, credit card numbers, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, financial account information, genetic, bio-metric, or health data.
 
g.              No Security Guarantee.  The parties acknowledge and agree that there are inherent risks in security and privacy with respect to the Comcast Materials and the transmission of information through them.  Comcast, therefore, will have no liability to Solution Provider for any unauthorized access to or use of the Devices or Device Data, where such unauthorized access arises from a third party’s exploitation of the Comcast Materials (e.g., a wireless transmission being intercepted by a third party) or other inherent risks associated with the Comcast Materials.
 
20.           Miscellaneous.
 
a.              Relationship.  Solution Provider is solely responsible for all interactions with its End Users with respect to the Services and Support.  Comcast is obligated to support only to Solution Provider and not End Users.  End Users are not third-party beneficiaries of these Terms.  The parties are independent contractors.  These Terms will not be construed to create a partnership, joint venture, agency, or employment relationship.  Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.  Except as provided in Section 16, these Terms are for the sole benefit of the parties and their respective successors and permitted assigns, and nothing in these Terms, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms.
 
b.              Assignment.  Solution Provider will not assign or transfer any of its rights or obligations in these Terms, in whole or in part, by operation of law or otherwise, without Comcast’s prior written consent.  Any attempt to do so without Comcast’s consent will be null and void.  Comcast may assign these Terms in their entirety, upon notice to Solution Provider but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization (including a joint venture or other partnership), or sale of all or substantially all of our business or assets relating to the subject matter of these Terms.
 
c.              Severability.  In the event that any provision of these Terms are deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform these Terms to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of these Terms will continue in full force and effect.
 
d.              Notices.  Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed given (i) when personally delivered, (ii) one (1) day after being sent by overnight courier, and (iii) five (5) days after being sent by prepaid certified or registered U.S. mail or express mail.  Notices will be sent to the address(es) set forth on the Order, unless a party notifies the other those addresses have changed.  Notices to Comcast will include a copy to Comcast Cable Communications Management, LLC, Attn: General Counsel, One Comcast Center, Philadelphia, PA 19103.
 
e.              Waiver.  A party's obligations under these Terms can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
 
f.               Force Majeure.  Notwithstanding anything to the contrary in these Terms, a party will not be deemed to be in breach of these Terms, or liable for any delay or failure to perform any obligation under these Terms, where caused by circumstances beyond their reasonable control, including inability to access the properties on which Gateways has been installed or other locations necessary for the Services or Support, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war (collectively, “Force Majeure Events”), except that Solution Provider’s obligation to pay Fees are not excused with respect to any Services provided.  If the Force Majeure Event prevents Comcast from providing any of the Services or Support for a period of more than four consecutive weeks, then Solution Provider may, without limiting its other rights or remedies, terminate these Terms on written notice to Comcast, provided such notice is given during or within one week after the end of such period.
 
g.              Open Source.  Gateways and Comcast-Provided Devices may contain open source software, as further set forth here: http://shop.MachineQ.com/opensource or its successor URL.  To the extent there is any conflict between these Terms and an open source software license, the open source software license will control solely as to that open source software.
 
h.              Amendments.  Comcast may change or modify these Terms from time to time (“Revisions”) by posting such Revisions to the MachineQ Website, except where otherwise provided herein. The Revisions shall be effective upon posting to the MachineQ Website or the effective date set forth in the Revisions, if later.  Solution Provider will receive notice of the Revisions in, or concurrently with, the next applicable monthly invoice (“Revision Notice”).  Solution Provider may provide Comcast with written notice that the Revisions adversely affect Solution Provider’s use of the Service(s), provided that it does so within thirty (30) calendar days from the date of the Revision Notice.  If, after its receipt of such notice, Comcast is able to verify such adverse effect, but is unable to reasonably mitigate the Revision’s impact on the Service(s), then Solution Provider may terminate the impacted Service(s) on written notice to Comcast, without further obligation to pay Fees to Comcast after the termination date, provided that Solution Provider gives such termination notice within sixty (60) calendar days from the date of the Revision Notice.  This termination is Solution Provider’s sole and exclusive remedy for Revisions.
 
i.                Entire Agreement.  These Terms, including each Order and the Specifications, and all documents incorporated by reference therein, constitute the entire agreement and understanding of the parties with respect to their subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to their subject matter.  Comcast will not be bound by any terms or conditions contained in any Solution Provider purchase order, invoice, or other document issued by Solution Provider or other statements on any form of payment.  As used in these Terms, “including” and “includes” are exemplary and not limiting.  In the event that a document referenced in these Terms is not available on the MachineQ Website, Comcast will provide a copy to Solution Provider on request.  It is Solution Provider’s responsibility to review the MachineQ Website and request such documents.
 
j.                Governing Law and Venue.  These Terms will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.  Any legal action or proceeding arising under, related to or connected with these Terms must be brought exclusively in the federal (if they have jurisdiction) or state courts located in Philadelphia, Pennsylvania and the parties irrevocably consent to the personal jurisdiction and venue there, and waive any objection to that location being an inconvenient forum.
 
k.              Attorneys’ Fees.  The prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. 
 
l.                Headings.  The section headings used in these Terms are for reference only and shall not limit or control any term or provision of these Terms or the interpretation or construction thereof.
 
m.             Verification.  Solution Provider will provide Comcast with access to Solution Provider’s facilities, books, and records as reasonably requested by Comcast.  Comcast will use such access solely to verify Solution Provider’s compliance with these Terms.
 
n.              Sole and Exclusive Remedies.  Solution Provider’s sole and exclusive remedies are expressly set forth in these Terms. Certain of the exclusions enumerated in these Terms may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Comcast shall be limited to the maximum extent permitted by law.

Exhibit A
Professional Services Terms and Conditions
 
The following terms and conditions apply to Comcast’s provision of professional services (e.g., a site survey, assistance installing or configuring Gateways) (“Professional Services”).  Terms used but not defined in this exhibit will have the meaning set forth in the MachineQ Platform Terms (“Terms”). 
 
1.  Scope.  Prior to performing Professional Services, the parties will agree on the scope, timing, and price, and set such details forth in an Order.  Subject to the terms and conditions of the Terms and this exhibit, Comcast will provide Solution Provider with Professional Services as set forth in the applicable Order.  Comcast is required to perform only those Professional Services that are expressly set forth in such Order, and any additional professional or other services (“Additional Services”) are not Comcast’s responsibility.  If requested by Solution Provider, Comcast may, in its sole discretion, elect to perform Additional Services, and upon such performance: (a) such Additional Services are deemed to be Professional Services; and (b) Solution Provider will compensate Comcast for such Additional Services at Comcast’s then-current hourly rates (“Additional Fees”).  Solution Provider will cooperate with and use reasonable efforts to assist Comcast in its performance of Professional Services.  “Access” as used in Section 4(b) of the Terms includes Access relating to Comcast’s performance of Professional Services. 
 
2.  Fees.  Comcast shall invoice Solution Provider: (a) the fees for Professional Services that are set forth in the applicable Order; (b) Additional Fees; and (c) the fees, charges, and expenses set forth in the remainder of this section.  Solution Provider will pay those invoices in accordance with Section 10(b) of the Terms.  All travel costs and expenses (e.g., meals) associated with Professional Services will be billed to Solution Provider at cost.  Comcast will use reasonable efforts to comply with Solution Provider’s travel and expense policy, if provided in writing to Comcast a reasonable amount of time in advance of such travel.
 
3.  Ownership.  To the extent that the Professional Services relate to Comcast’s modification or configuration of the Comcast Materials: (a) Comcast retains ownership of such modifications and configurations and all intellectual property therein; and (b) Solution Provider is licensed to use such modifications and configurations pursuant to the license grant in Section 13(a) of the Terms relating to the particular Comcast Material that was modified.  To the extent that the Professional Services relate to Comcast’s delivery of reports or analyses (such as the results of a site survey): (y) Solution Provider owns such reports and analyses and all intellectual property therein, which constitutes “works made for hire” for purposes of the U.S. Copyright Act of 1976; and (z) the rights in clause (y) are subject to Comcast retaining ownership of the tools and methodologies used to create such reports and analyses, as well as the format, design, layout and other pre-existing or generic Comcast materials that are incorporated in those reports and analyses.  To the extent that the Professional Services relate to Comcast’s creation of any other type of work product or delivery of any other type of deliverable, ownership thereof will be set forth in the applicable Order.  If none is set forth in the applicable Order, then the work product and deliverables are Comcast Materials.   
 
4.  Warranties; Disclaimer; Indemnity; Limitation of Liability.  For clarity, “Services” and “Comcast Materials” as used in Sections 14 – 17 of the Terms, include Professional Services and the resulting work product and deliverables thereof, respectively.