TERMS OF SERVICE
Last Updated: September 08, 2021
THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO THE PRODUCTS AND SERVICES PROVIDED TO YOU BY SMARTDUST SP. Z O.O. UL. SĄDOWA 2/11 20-027 LUBLIN, POLAND, NIP 7123421412 (“Smart Dust”). PROCUREMENT OF, USE OF, OR ACCESS TO SUCH PRODUCTS OR SERVICES IS SUBJECT TO YOUR, AND THE ENTITY YOU REPRESENT (TOGETHER, “CUSTOMER”), COMPLIANCE WITH THIS AGREEMENT.
1. SMART DUST SERVICES.
1.1 Provision of Services. Smart Dust offers various online, software-as-a-service products and services (collectively, the “Smart Dust Services“). The Smart Dust Services ordered by Customer shall be as set forth in an “Order Form”, meaning such products and services are: (i) selected by Customer via Smart Dust’ online purchase process or (ii) set forth in a quote or purchase order executed by the parties. The Smart Dust Services are provided on a subscription basis for a Subscription Term (as defined in Section 5.1). This Agreement also includes any Statements of Work (or similar documents) executed by the parties (“SOWs”).
1.2 Access to Services. During the applicable Subscription Term, Customer may access and use (on a software-as-a-service basis) the Smart Dust Services solely for testing its own websites and mobile applications and only in accordance with the terms and conditions of this Agreement and any end user documentation provided, or made available online, by Smart Dust (“Documentation”). For clarity, no software code will be provided to Customer. Use of the Smart Dust Services is permitted only by the number of employees of Customer specified during the purchase process (“Permitted Users”). Customer shall require that all Permitted Users keep any Smart Dust Services user ID and password information confidential. Customer shall be responsible for all actions taken using Customer’s accounts and passwords in its possession. Customer must immediately notify Smart Dust in the event a Permitted User violates this Agreement. In addition, as identified in the purchase process or Documentation, other use limitations may apply (such as, use of the Smart Dust Services may be limited by minutes or number of concurrent sessions).
1.3 Support Services. During the Subscription Term of each Smart Dust Services, Smart Dust shall provide end user support for the support level specified at the time of purchase, in accordance with the terms set forth at https://smartdust.me/privacy-policy/ .
1.4 Customer Contractors. Customer may permit its independent contractors who are not competitors of Smart Dust (“Contractors”) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of the Smart Dust Services by such Contractor is for the sole benefit of Customer. For clarity, use of the Smart Dust Services by Contractors and Customer must be, in the aggregate, within the use restrictions, if any, specified at the time of purchase.
1.5 General Restrictions. Customer shall not (and shall not allow any third party to); (a) rent, lease, copy, provide access to or sublicense any Smart Dust Services to any third party (except as authorized by Section 1.3 above); (b) use any Smart Dust Services to help develop, or help provide to any third party, any other product or service, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of the Smart Dust Services (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law (and then only upon advance notice to Smart Dust), (d) modify or create derivatives of any of the Smart Dust Services or any Documentation, (e) send or store in or via the Smart Dust Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights, (f) send or store in or via the Smart Dust Services any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (g) use the Smart Dust Services in a manner that Customer should reasonably know may damage or otherwise harm and Smart Dust systems, networks, equipment or data, (h) use the Smart Dust Services for any purpose, or in any manner, that violates any laws, regulations or third party rights, (i) remove, alter or obscure any proprietary or other notices contained on or in any Smart Dust Services (including any reports or data printed from any Smart Dust Services) or Documentation or (j) publicly disseminate information regarding the performance of the Smart Dust Services (such as benchmarking results). All information referenced in Section 1.5 (j) is Smart Dust’ Confidential Information (as defined in Section 9) even though it may be originally generated or discovered by Customer.
1.6 Apple Infrastructure Terms. Except as otherwise agreed by the parties in writing, during the Subscription Term, Customer, from time to time, may use Smart Dust Services for the testing of Apple Mac OS and iOS applications (“Apple Applications”). Customer may use up to 50% of any virtual concurrent sessions included in the subscribed Smart Dust Services for the testing of Apple Applications. Any use above 50% is subject to Smart Dust’ written consent (which may be conditioned on additional fees).
1.7 Additional Policies. This Agreement includes, and Customer must comply with, all policies posted by Smart Dust on its website (such as, the Smart Dust Acceptable Use Policy set forth at https://smartdust.me/acceptable-use-policy).
1.8 Evaluation Use. To the extent the Smart Dust Services are provided for no charge or on an evaluation basis (in either case, “Evaluation Basis”), the Smart Dust Services may be suspended or terminated by Smart Dust at any time, for any or no reason, with or without notice. Customer acknowledges that other sections of this Agreement contain terms and conditions specific to services provided on an Evaluation Basis.
1.9 Smart Lab Free. Notwithstanding anything in this Agreement to the contrary, to the extent the Smart Dust Services are the “Free Lab” service, the following shall apply: (i) Customer may only have one Free Lab account, (ii) the Customer’s project it tests using Free Lab must be deemed by Smart Dust to be an “open source” project (in its sole discretion), (iii) all Customer Data (as defined in Section 2.1) used with Free Lab, and all results generated from using Free Lab, may be disclosed by Smart Dust to any third parties at its discretion, such as: other customers, to the public via white papers, etc.). (iv) Smart Dust may retain, reproduce, disclose and use all such data after termination of this Agreement in perpetuity, and (v) Lab may be suspended or terminated by Smart Dust at any time, for any or no reason, with or without notice. For clarity, to the extent any provision of this Agreement conflicts with the foregoing, the foregoing shall apply.
2. CUSTOMER DATA.
2.1 In General. “Customer Data” means all data inputted by Customer into the Smart Dust Services for testing its websites and mobile applications. CUSTOMER MUST ENSURE THAT ALL CUSTOMER DATA IS ONLY NON-SENSITIVE, TEST (DUMMY) DATA. FOR EXAMPLE, CUSTOMER WILL NOT LOAD INTO THE SMART DUST SERVICES ANY PERSONALLY IDENTIFIABLE INFORMATION (SUCH AS; ITS CUSTOMERS’ OR USERS’ EMAIL ADDRESSES, SOCIAL SECURITY NUMBERS OR FINANCIAL ACCOUNT INFORMATION). In addition, Customer shall ensure that Customer’s use of Smart Dust Services and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable laws and regulations, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Smart Dust that Customer has sufficient rights in the Customer Data to grant the rights granted to Smart Dust in Section 2.2 below and that the Customer Data does not infringe or otherwise violate the rights of any third party. If Customer exports information from a jurisdiction outside Poland, Customer will ensure that it has all legal rights to do so (including, without limitation, in compliance with applicable privacy laws and regulations).
2.2 Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including all intellectual property rights) in and to the Customer Data provided to Smart Dust. Customer hereby grants to Smart Dust a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display the Customer Data to the extent reasonably necessary to provide the Smart Dust Services to Customer.
2.3 Uploads of Customer Data. Customer shall be responsible for providing all Customer Data to Smart Dust and shall provide such Customer Data in a format consistent with the technical compatibility requirements set forth in the applicable Documentation (or as otherwise specified by Smart Dust) (“Technical Requirements”). Errors in loading Customer Data onto Smart Dust systems due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Smart Dust Services or may be referred back to Customer for resolution and Smart Dust shall have no responsibility for any related impact on the applicable Smart Dust Services.
2.4 Data Storage and Wind Down. Smart Dust does not provide a data/content archiving service. Smart Dust agrees only that it shall not intentionally delete any Customer Data which is less than thirty (30) days old. During the thirty (30) days period immediately following termination of this Agreement, Smart Dust will provide Customer with access to the Customer Data for download (and reasonable assistance in effectuating such download). Data not retrieved within thirty (30) days may be deleted by Smart Dust in its discretion. Any additional transition assistance activities will be at Smart Dust’s discretion and may be subject to its then-current rates.
2.5 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Smart Dust from and against all third party claims (and all resulting, to the extent payable out-of-pocket to unaffiliated third parties: damages, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees) (“Losses”) arising out of: (i) any Customer Data (including, without limitation, the violation of any laws, regulations or privacy rights), (ii) Customer’s breach of its obligation to only load non-sensitive, test (dummy) data as required by Section 2.1, (iii) any action taken (or not taken) by Customer based upon use of any of the Smart Dust Services or results thereof, (iv) any service or product offered by Customer in connection with, or related to, any of the Smart Dust Services or (v) Customer’s breach of Section 6. This indemnification obligation is subject to Customer receiving: (a) prompt written notice of such claim (but in any event, notice in sufficient time for Customer to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) the reasonable cooperation of Smart Dust at Customer’s expense.
3. OWNERSHIP. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the Smart Dust Services. Customer agrees that Smart Dust or its third party providers retain all right, title and interest (including all patents, copyrights, trade secrets and other intellectual property rights) in and to (i) the Smart Dust Services and Documentation and all related underlying technology; and (ii) any intellectual property it develops in connection with this Agreement. In the event Customer provides Smart Dust with any suggestions, ideas, improvements or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Customer shall and hereby does grant Smart Dust (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable, transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose.
4.1 Fees and Payment. Unless otherwise specified in an Order Form, all fees are payable by Customer at the time of purchase, (or on the date of renewal, as applicable). Use of Smart Dust Services beyond agreed-to limits may subject Customer to overage fees as set forth at the time of purchase. In addition, Smart Dust may adjust the fees charged to Customer hereunder on notice (electronic notice is sufficient) delivered to Customer at least forty-five (45) days prior to the end of the then-current Subscription Term (and such fees will take effect beginning on the next term). Notwithstanding the foregoing, Smart Dust may, without notice, increase the fees for any term over the fees from the preceding term by the greater of 3% and CPI. Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Smart Dust. Except as expressly set forth in Section 6.2, all fees are non-refundable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. All fees must be paid in US dollars.
4.2 Suspension of Service. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Smart Dust reserves the right to, with or without notice, suspend Customer’s access to the applicable Smart Dust Services without liability to Customer until such amounts are paid in full.
5. TERM & TERMINATION.
5.1 Term. This Agreement is effective as of the Effective Date and will terminate as set forth below. Each Order Form will have the initial subscription term set forth thereon. Thereafter, each Order Form will automatically renew for successive renewal subscription terms of equal length to its initial subscription term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current subscription term. The initial subscription term and all renewals are referred to collectively as the “Subscription Term”. If no initial Subscription Term is set forth in an Order Form, the initial Subscription Term for such Order Form will be one (1) year.
5.2 Termination. This Agreement will automatically terminate if there are no Order Forms in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment or in the event Customer breaches any license or use restrictions) (provided that, in the event of Customer’s notice of breach with respect to the Smart Dust Services, such notice must (i) be sufficiently detailed for Smart Dust to verify and remedy the issue and (ii) expressly state the intent to terminate); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within ninety (90) days thereafter). With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. Termination of this Agreement will automatically terminate all Order Forms.
5.3 Effect of Termination. Upon any termination of this Agreement, (i) Customer shall immediately cease all use of and access to the Smart Dust Services and (ii) each party will return to the other party (or destroy) such other party’s Confidential Information. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4 Survival. The following Sections shall survive any termination of this Agreement: 1.5, 2.5, 3, 5, 6.3, 7, 8, 9 and 10, and all outstanding payments obligations.
6.1 Mutual Warranties. Each party represents and warrants that (i) it is a corporation or other legally organized entity in good standing under the laws of the state in which it was formed, (ii) it has the power and authority to execute, deliver, and perform its obligations under this Agreement, (iii) its performance will comply with all applicable laws and regulations and (iv) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms.
6.2 Services Warranty. Smart Dust warrants, for Customer’s benefit only, that it will use commercially reasonable efforts to ensure that the Smart Dust Services will operate in conformity in all material respects with the applicable Documentation on a 24/7 basis. Smart Dust’ sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Smart Dust’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects or otherwise remedies the reported non-conformity, or if Smart Dust determines such remedy to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Smart Dust Services for the unexpired remainder of the then-current Subscription Term. The limited warranty set forth in this Section 6.2 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared or (ii) if the error was caused by misuse (other than by Smart Dust or its contractors), unauthorized modifications by Customer (or any third acting on its behalf), or third-party hardware or software or services not provided by Smart Dust.
6.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.2, THE SMART DUST SERVICES ARE PROVIDED “AS IS”. NEITHER SMART DUST NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING THE FOREGOING, SECTION 6.2 WILL NOT APPLY TO OPEN SOURCE OR ANY SERVICES PROVIDED ON AN EVALUATION BASIS.
7. LIMITATION ON LIABILITY.
7.1 NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO SMART DUST DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, OR THE SERVICES ARE SERVICES FREE OF CHARGE OR PROVIDED ON AN EVALUATION BASIS, SUCH AMOUNT SHALL BE US$1,000.00) OR (III) IN THE CASE OF SMART DUST’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. IN ADDITION, SMART DUST SHALL HAVE NO LIABILITY FOR MATTERS OUTSIDE OF ITS REASONABLE CONTROL (SUCH AS, ISP OUTAGES).
7.2 THIS SECTION 7 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 9, CUSTOMER’S BREACH OF ANY SMART DUST SERVICES USE RESTRICTIONS OR CUSTOMER’S BREACH OF ITS OBLIGATION TO ONLY LOAD OR OTHERWISE PROVIDE NON-SENSITIVE, TEST (DUMMY) DATA.
8. INDEMNIFICATION. Smart Dust shall indemnify and hold harmless Customer from and against all Losses arising out of the alleged infringement of a U.S. patent, copyright, or trademark by the Smart Dust Services as provided by Smart Dust; provided that, Smart Dust receives from Customer: (i) prompt written notice of such third party claim (but in any event, notice in sufficient time for Smart Dust to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) reasonable cooperation of Customer. If Customer’s use of any Smart Dust Services is, or in Smart Dust’ determination may be, enjoined due to the type of infringement specified above, or if required by settlement, Smart Dust may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Smart Dust Services; or (c) terminate the Agreement and refund to Customer the fees it pre-paid for use of the applicable Smart Dust Services for the unexpired remainder of the then-current Subscription Term. The foregoing indemnification obligation of Smart Dust shall not apply: (1) if Smart Dust Services are modified by any party other than Smart Dust, but solely to the extent the alleged infringement is caused by such modification; (2) the Smart Dust Services are combined with other non-Smart Dust Services or processes not authorized by Smart Dust, but solely to the extent the alleged infringement is caused by such combination; (3) to any Smart Dust Services that are being misused; or (4) any claim arising as a result of Customer Data or any third-party deliverables or components contained within Smart Dust Services. THIS SECTION 8 SETS FORTH SMART DUST’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. THIS SECTION 8 WILL NOT APPLY TO OPEN SOURCE OR ANY SERVICES PROVIDED ON AN EVALUATION BASIS.
9. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the other party (as “Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. In addition, to the extent Customer has negotiated pricing with Smart Dust, such pricing is Smart Dust’s Confidential Information. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence (using reasonable methods or protection) and (b) not use any Confidential Information except in furtherance of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law. Customer acknowledges this Section does not apply to Customer Data provided for use with services provided free of charge.
10. GENERAL TERMS.
10.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. In the event Customer assigns this Agreement to a Smart Dust’s competitor, Smart Dust may terminate this Agreement on notice. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
10.2 Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. In the event of a Force Majeure Event that prevents one part from substantially performing its obligations hereunder for a period of ten (10) days or more, either party may terminate this Agreement on five (5) days written notice.
10.3 Subcontractors. Smart Dust may use the services of subcontractors for performance of services under this Agreement, provided that Smart Dust remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Smart Dust Services as required under this Agreement.
10.4 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.5 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.6 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the Polish law without regard to the conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the rules and procedures of the Arbitration Court local to Smart Dust. To the extent available, the Arbitration Court Streamlined Rules will apply. The arbitration shall take place in Warsaw, Poland, in the Polish language and the arbitral decision may be enforced in any court. Subject to the foregoing arbitration provision, all disputes arising in connection herewith will be subject to the sole and exclusive jurisdiction and venue of the Polish courts located in Warsaw (and the parties each hereby consent and submit to such jurisdiction and venue). The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.7 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Customer, the address listed by Customer during the Smart Dust Services registration process (or as otherwise later changed by Customer in its Smart Dust’s account) and (ii) if to Smart Dust Lab, Jana Pawła II 20/1602, 00-133 Warszawa, POLAND, Attn: Legal (or at such other address as may be given by Smart Dust at any time) and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Smart Dust (such as for breach) must also be provided in email to: email@example.com (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement. Electronic notices may be delivered via email or to the Customer’s Smart Dust Services account.
10.8 Amendments; Waivers. Smart Dust may supplement, amend or otherwise modify this Agreement at any time, by providing Customer with at least forty-five (45) days’ notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Subscription Term. Except as set forth in the preceding sentence, no supplement, amendment or modification of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent this Agreement conflicts with any Order Form of SOW, the Order Form or SOW (as applicable) shall control (provided that any reference to any other Customer agreement – such as, any Customer online click-through – shall not apply).
10.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and Smart Dust have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement.