SEMTECH NETWORK SERVER SERVICES AGREEMENT

The Services that You seek to obtain from the Semtech Portal are offered on the condition that You agree to all of the terms set forth below by this LNS Services Agreement (“Agreement”).

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES.                                                                                                     

BY USING THE SEMTECH NETWORK SERVER SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DISAGREE WITH THESE TERMS OR ANY PART OF THESE TERMS, YOU MUST NOT USE THE SEMTECH NETWORK SERVICES.

1. Services. Subject to the terms and conditions of this Agreement, Semtech shall provide to You (the “Subscriber”) the Services.

1. Provision of Services. Semtech hereby grants Subscriber a non-exclusive, non-transferable right to access and use the Services during the Term solely for Subscriber’s internal (non-commercial) use. Subscriber’s access and use of the Services shall be limited to individuals authorized by the Subscriber (the “Authorized Users”).  Authorized Users who receive access credentials after completing the registration process for the Subscriber Portal (“Access Credentials”) can access the Services via the Subscriber Portal. 
2. Services Performance. Semtech has no obligation to provide support or maintenance for the Services.  However, to the extent Semtech provides any updates, upgrades or error corrections for the Services (collectively, “Updates”), the Updates are deemed to be Services and are provided to Subscriber pursuant to this Section 1 on an “AS IS” basis. Semtech has the right to make Updates to the Services that Semtech deems necessary or useful to comply with applicable law or to maintain or enhance the Services. Semtech does not have any obligation to notify Subscriber of any change that materially reduces the overall quality, usability and functionality of the Services.
3. Suspension of Services. Notwithstanding anything to the contrary in this Agreement, Semtech may suspend Subscriber’s access to and use of any portion or all of the Services if: (a) Semtech reasonably determines that (i) there is a threat or attack on the Services; (ii) Subscriber’s use of the Services disrupts or poses a security risk to the Services or to any other Subscriber or vendor of Semtech; (iii) Subscriber is using the Services for fraudulent or illegal activities; or (iv) Semtech’s provision of the Services to Subscriber is prohibited by applicable law; (b) any vendor of Semtech has suspended or terminated Semtech’s access to or use of any third-party services or products required to enable Subscriber to access the Services; or (c) if Subscriber is in breach of any of its obligations under this Agreement. Semtech will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber may incur as a result of such a Services suspension.
4. Use Restrictions. Except as expressly permitted under the Agreement or otherwise authorized by Semtech, Subscriber shall not directly or indirectly do any of the following: (a) sell, distribute, sublicense or commercially exploit any Services, any content delivered to Subscriber in connection with the Services or any rights under the Agreement, including without limitation any access or use of any Services beyond the scope specified in this Agreement (such as for any third parties on a rental or sharing basis); (b) knowingly introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the Services; or (c) remove, obscure, or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of any Services. 

2.  Term and Termination.
   1. Term.  Unless sooner terminated pursuant to any provision of this Article 2, the term of this Agreement (“Term”) shall commence on the date You accept the terms and conditions of this Agreement by clicking on the “I Accept” button and continue for a period of one (1) year.
   2. Termination without Cause.  Either party may terminate this Agreement with or without cause by delivering written notice to that effect to the other party.
   3. Effects of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted hereunder to Subscriber will terminate immediately.  Immediately upon such termination or expiration, Subscriber will cease all use of the Services. Semtech has no obligation to maintain Subscriber Data and may destroy it following such termination or expiration.
   4. Survival.  Sections 2c, 2d, 4, 5, 6, 7, 8, 9 and 10 will survive expiration or termination of this Agreement.
3. Subscriber Responsibilities. Subscriber shall use the Services in accordance with applicable law and Semtech’s and its licensors’ and vendors’ terms and conditions of use. Subscriber’s use of the Services is subject to, and Subscriber shall comply with, this Agreement and Acceptable Use Policy for the Semtech Portal including all use restrictions set forth therein.  Subscriber must keep its Access Credentials for the Services secure and confidential.  Subscriber may enable access of the Services for use only by the Authorized Users. Subscriber is responsible for all use by the Authorized Users of the Services and compliance by the Authorized Users with this Agreement. Subscriber shall: (a) have sole responsibility for the accuracy, quality, and legality of all Subscriber Data; and (b) use reasonable means to prevent unauthorized access to, or use of, the Services, and notify Semtech promptly of any known unauthorized access or use.  You may stop use of the Services at any time without providing Semtech with advance notice of Your decision to cease use of the Services. 
4. Data Controller and Data Processor Roles.  Subscriber represents and warrants that it has the authority to provide any personal information (e.g., any Authorized User within Subscriber’s organization) to Semtech for processing as contemplated by this Agreement. Subscriber agrees that as the data controller, it is entitled to transfer its Subscriber Data, including relevant personal information, to Semtech, the data processor, so that it, its affiliates and third-party contractors may process the Subscriber Data for purposes of providing the Services under this Agreement.
5. Indemnification. Subscriber shall defend, indemnify, and hold harmless Semtech and its affiliates and their respective directors, officers, employees, contractors, agents, suppliers, and end users (“Indemnified Parties”) against any action, claim, demand, proceeding or suit (“Claim”) and any liability, damage, loss, cost, and expenses (including attorney's fees) arising from the Claim (“Damages”) threatened or brought against any Indemnified Party in connection with Subscriber’s use of the Services, any non-compliance by Subscriber of any term or condition of this Agreement and any use by Semtech of Subscriber Data in connection with Semtech’s provision of Services for the benefit of Subscriber. The Indemnified Party shall provide Subscriber with written notice of any Claim within a reasonable time after the Indemnified Party receives written notice of the Claim. The Indemnified Party’s failure to provide timely written notice will not excuse Subscriber’s obligation under this Agreement unless lack of actual notice of the Claim has a substantially adverse effect on Your ability to defend the Claim. The Indemnified Party must allow Subscriber to have sole control of the defense. Subscriber shall not settle any Claim, and no settlement of a Claim will be binding on the Indemnified Party, without its prior written consent, which will not be unreasonably withheld or delayed.
6. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER “AS IS” AND “AS AVAILABLE.” SEMTECH AND ITS LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SEMTECH DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

Subscriber acknowledges that the Services may depend in part on the infrastructure, networks, and connectivity and acts or omissions of service providers such as communications carriers, data centers, colocation providers and content and software providers that Semtech uses to deliver the Services. Semtech shall have no liability for those areas of functionality, infrastructure or technology that are under the control of such service providers.

7. Limitation of Liability. SEMTECH IS NOT LIABLE (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, DATA, RECORDS OR INFORMATION; LOST PROFITS AND ANY FAILURE OF DELIVERY OF THE SERVICES), OR (II) FOR ANY LOSS, CORRUPTION, OR BREACH OF SUBSCRIBER’S INFORMATION, DATA OR SOFTWARE, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, (INCLUDING NEGLIGENCE) STRICT LIABILITY, AND OTHERWISE, REGARDLESS OF WHETHER SEMTECH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IF APPLICABLE LAW LIMITS SEMTECH’S DISCLAIMERS OF WARRANTY AND LIABILITY UNDER THIS AGREEMENT, THE TOTAL MAXIMUM LIABILITY OF SEMTECH OR ITS LICENSORS, AFFILIATES AND VENDORS FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO FIVE HUNDRED UNITED STATES DOLLARS ($US500), EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. ACTIONS HEREUNDER MUST BE COMMENCED WITHIN 12 MONTHS OF THE DATE THE ACTION FIRST ACCRUES.

8. Ownership.
   1. Reservation of Rights. Semtech reserves all rights not expressly granted herein. Except for the limited right to access and use the Services granted to Subscriber hereunder, Semtech and its licensors retain all right, title, and interest, including all intellectual property rights, in all Services that are proprietary to Semtech and its licensors.
   2. Subscriber Data.  Subscriber retains ownership of all its intellectual property rights in Subscriber Data and information provided to Semtech during Subscriber’s use of the Services.  Subscriber grants Semtech and its service providers the right to use Subscriber Data in connection with provision of the Services. Notwithstanding the foregoing, Semtech may monitor Subscriber’s use of the Services and collect, compile and analyze data and information related to Subscriber's use of the Services, including Subscriber Data, in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, operation and improvement of the Services. All right, title, and interest in such aggregate information is retained solely by Semtech.
   3. Subscriber Input.  Semtech shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any Subscriber Input. Subscriber shall have no obligation to provide Subscriber Input.
9. General Provisions.
   1. Compliance with Law.  Each party will comply with all laws applicable to it under this Agreement, including, but not limited to laws related to data privacy, data protection, anti-corruption and export control.
   2. Assignment.  Subscriber shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without  prior written consent, which consent Semtech shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Subscriber (regardless of whether Subscriber is a surviving or disappearing entity) shall be deemed to be a transfer of rights, obligations or performance under this Agreement for which Semtech's prior written consent is required. No delegation or other transfer will relieve Subscriber of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this provision is void. Semtech may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Subscriber's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
   3. Entire Agreement; Modification.  This Agreement constitutes the entire agreement between the party with respect to the subject matter hereof, and supersedes all other communications, including all prior agreements, between the parties with respect to such subject matter. If a provision hereof is held to be invalid, illegal or unenforceable, the remainder of the Agreement will continue in full force and effect. The waiver of a breach hereunder will not constitute the waiver of any subsequent breach. Modifications to this Agreement must be made in writing signed by the parties’ authorized representatives.
   4. Force Majeure.  Neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder, where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, epidemic, flood, fire, sabotage, fluctuations or non-availability of electrical power, loss and destruction of property or any other circumstances or causes beyond such party's reasonable control.
   5. Governing Law; Dispute Resolution.  This Agreement shall in all respects be construed and be given legal effect in conformity with the laws of Switzerland. Any dispute between Semtech and Subscriber arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a panel of three arbitrators appointed in accordance with said Rules, which rules are deemed to be imported by reference into this Agreement. The arbitrators will give full force and effect to the clear intent of the parties as expressed in the terms and conditions of this Agreement. The place of arbitration shall be in Geneva, Switzerland. The language of arbitration shall be English. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
   6. Notices. Any notice, communication, or demand in writing required hereunder, must be delivered to Semtech by hand or by international commercial courier (with confirmation of receipt), shall be addressed to the attention of Semtech’s Legal Department and shall be effective on the day of receipt (if it is a business day within the locality of receipt or the first local business day in the locality thereafter) when received at the address of Semtech set forth on the face page of this Agreement or at such other address Semtech shall have communicated in writing to You.
   7. Independent Contractors.  Subscriber and Semtech are independent contractors. Nothing in this Agreement creates, or is intended to create, an agency, employment, franchise, joint venture, or partnership relationship between the parties.
   8. U.S. Government as Subscriber.  If the Subscriber is part of the U.S. Government, the Services (and the software underlying the Services) are made available to the U.S. Government as “commercial items” and “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services as such terms are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
   9. Equitable Relief.  A breach or threatened breach by Subscriber of any use restrictions applicable to the Services would cause Semtech irreparable harm for which monetary damages would not be an adequate remedy and in the event of such breach or threatened breach, Semtech will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
   10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, 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 this Agreement.
10. Defined Terms.  Capitalized terms not otherwise defined in this Agreement have the meaning given to them in this Section 10.

1. “Subscriber Data” means employee, asset, vendor and similar data, files, designs, specifications, or other materials that Subscriber enters into any of the Services, or other data or information provided by Subscriber to Semtech in connection with is provision of the Services.
2. “Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided to Semtech during the term of this Agreement by Subscriber, its employees and Authorized Users, relating to the design, operation or functionality of the Services. 
3. “Subscriber Portal” means the Semtech Portal for Subscribers, available at https://lora-developers.semtech.com and https://ns.loracloud.com.
4.  “Services” means Semtech Network Server services and associated services provided by the Network Server, such as, but not limited to, Organization Dashboards, Organization Users, Organization API Keys, Service Profiles Dashboards, Device Profile Dashboards, Gateway Dashboards, and Application Dashboards.