These HeliumOS Terms and Conditions (these "Terms") are entered into by Nova Labs, Inc., a Delaware corporation doing business as "Helium" ("Nova Labs"), and the customer identified in an Order Form ("Customer"). Nova Labs and Customer are each a "Party" and together the "Parties." These Terms, together with each Order Form, Product Schedule, and SOW and the documents incorporated under Section 2.1, form the "Agreement."
1. DEFINITIONS
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means ownership of more than fifty percent (50%) of the voting interests of the entity.
"Aggregated Data" means data derived from Customer Data that has been aggregated and de-identified so that it does not identify, and cannot reasonably be used to identify, Customer, any Venue Owner, any Venue, any End User, or any device.
"Applicable Law" means all federal, state, local, and foreign laws, regulations, rules, and orders applicable to a Party's performance under the Agreement.
"Authorized User" means an employee, contractor, or agent of Customer or its Affiliates, or personnel of a Venue Owner permitted under Section 4.2, whom Customer authorizes to access the Services.
“Customer Data” means all data, information, and content that Customer or its Authorized Users submit to the Services, or that the Services collect on Customer’s behalf from Customer Systems or in connection with End User sessions on the Helium Network, including Customer Personal Data and data relating to Venue Owners, Venues, and End Users. Customer Data excludes Aggregated Data, Usage Data, and Network Data, except to the extent Network Data contains Customer Personal Data.
"Customer Personal Data" means Customer Data that constitutes personal information, personal data, or similarly defined information under Applicable Law.
"Customer Systems" means the networks, access points, wireless controllers, distributed antenna systems, radio access network elements and management systems, authentication servers, applications, and other systems used by or for Customer or any Venue Owner that interoperate with the Services, whether owned by Customer, a Venue Owner, or a third party.
"Documentation" means Nova Labs' then-current technical and user documentation for the Services, including documentation published at os.helium.com/docs.
"DPA" means the HeliumOS Data Processing Addendum posted at helium.com/legal/dpa.
“End User” means any individual whose device connects to or through Customer Systems, or connects to the Helium Network through the Services, and whose data is processed by the Services.
"Fees" means the fees set forth in an Order Form or SOW.
"Helium Network" means the decentralized wireless network described in Section 5.1.
"Helium Technology" means the Services, the Documentation, and all software, algorithms, models, interfaces, and other technology that Nova Labs uses to provide the Services, together with all improvements, modifications, and derivative works of any of them.
"Information Security Exhibit" means the HeliumOS Information Security Exhibit posted at helium.com/legal/infosec.
“Network Agreement” means any network offload agreement, network access agreement, the Helium Plus Terms and Conditions, any Helium Plus participation agreement, venue activation form, or addendum, and any other agreement between the Parties relating to the Helium Network, other than the Agreement.
“Network Data” means data about the Helium Network and its access points, including access point identifiers, locations, and performance, and the records of data transfer that the Helium protocol records on its blockchain (“On-Chain Records”). Network Data includes performance metrics for access points, such as throughput, latency, session counts, and data transferred, aggregated across End Users and not attributed to any individual Customer. On-Chain Records do not contain Customer Personal Data.
"Order Form" means an ordering document that references these Terms and is signed by both Parties.
"Product Schedule" has the meaning in Section 2.3(a).
"Professional Services" means implementation, integration, configuration, training, and similar services described in an SOW.
"Sandbox Services" means any sandbox, trial, pilot, beta, preview, or evaluation version of the Services, including any Service designated as "Preview" or "Coming Soon" in the Documentation. Sandbox Services exclude any Service that Customer orders for a fee under an Order Form, unless that Order Form designates the Service as a pilot.
"Security Incident" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to, Customer Data in Nova Labs' possession or control.
"Services" means the HeliumOS subscription services identified in an Order Form, which may include WOX (Wi-Fi Offload Experience), HeliumAI, Wi-Fi Toolkit, the Carrier Enablement Platform, and Helium Network Integration, together with related support. Services exclude Professional Services and Third-Party Services.
"SOW" means a statement of work for Professional Services that references these Terms and is signed by both Parties.
"Subprocessor" means a third party that Nova Labs engages to process Customer Personal Data.
"Subprocessor List" means Nova Labs' list of Subprocessors posted at helium.com/legal/subprocessors.
"Subscription Term" means the subscription period for a Service specified in an Order Form, including any renewal period.
"Third-Party Services" means products, services, networks, and platforms not provided by Nova Labs, including Customer Systems.
"Usage Data" means data that the Services generate about the operation, performance, security, and use of the Services, such as system logs, uptime records, API call volumes, and Usage Metric counts.
“Usage Metric” means each unit of measure for a Service set forth in the applicable Product Schedule or Order Form, such as Daily Active Users or gigabytes of data transferred.
"Venue" means a specific geographic location at which Customer deploys the Services, as listed in an Order Form or reported under Section 4.5.
"Venue Agreement" means Customer's written agreement with a Venue Owner covering Customer's services that use the Services.
"Venue Owner" means the owner or operator of a Venue, other than Customer, or any other person, other than Customer, for whom Customer deploys the Services at a Venue.
2. AGREEMENT STRUCTURE AND ORDERING
2.1 Acceptance and Incorporated Documents. These Terms apply when Customer and Nova Labs sign an Order Form that references them. The DPA, the Information Security Exhibit, the Subprocessor List, and Appendix A are incorporated into these Terms. These Terms also apply, solely to Sandbox Services, when Customer accepts them through Nova Labs' account sign-up process without an Order Form. In that case, references to the notice contact in an Order Form mean the contact information in the Customer's account.
2.2 Order Forms and SOWs. Customer may purchase Services through Order Forms and Professional Services through SOWs. Each Order Form and SOW incorporates these Terms. Customer's Affiliates may enter into Order Forms under these Terms, in which case the Affiliate is "Customer" for purposes of that Order Form and is responsible for it.
2.3 Product Schedules.
(a) Incorporation. Each Service is subject to the product schedule for that Service posted at helium.com/legal (each, a "Product Schedule"), which is incorporated into these Terms.
(b) Updates. Product Schedules may be updated under Section 19.
(c) Scope. A Product Schedule governs product-specific matters, including functionality, Usage Metrics, data categories and retention, support classifications, and product-specific disclaimers. No Product Schedule may modify Sections 14 (Indemnification), 15 (Limitation of Liability), or 18 (Governing Law and Dispute Resolution).
2.4 Order of Precedence. If documents conflict, the following order of precedence applies: (a) the DPA, with respect to the processing of Customer Personal Data; (b) an Order Form, but only where it expressly identifies the provision of these Terms, a Product Schedule, or the Premium Support Addendum that it modifies; (c) the Premium Support Addendum, with respect to service levels for Premium Services; (d) the applicable Product Schedule, with respect to the Service it covers; (e) these Terms; (f) an SOW; and (g) the Documentation.
2.5 Other Agreements. If Customer and Nova Labs have signed a written agreement that expressly states it governs Customer's use of the Services in place of these Terms, that agreement governs to the extent stated.
2.6 No Additional Terms. Terms in any purchase order, vendor registration form, portal, or click-through agreement presented by either Party do not apply, even if accepted or signed, unless the Parties expressly agree to them in a signed Order Form.
3. USE OF THE SERVICES
3.1 Access. Subject to the Agreement and payment of the Fees, Nova Labs grants Customer a non-exclusive, non-transferable (except under Section 20.2), non-sublicensable right during the Subscription Term to access and use the Services ordered under an Order Form at the Venues, if any, or as described in the applicable Product Schedule, for Customer's business purposes, including providing services to Venue Owners under Section 4, in accordance with the Documentation and the applicable Product Schedule.
3.2 Authorized Users. Customer is responsible for its Authorized Users' compliance with the Agreement and for maintaining the confidentiality of credentials issued to them. Customer shall notify Nova Labs promptly of any unauthorized use of its credentials.
3.3 Restrictions. Customer shall not, and shall not permit any third party to: (a) sell, resell, sublicense, or otherwise make the Services available to any third party, except as permitted by Section 4; (b) reverse engineer, decompile, or attempt to derive the source code or underlying models of the Helium Technology, except to the extent Applicable Law prohibits this restriction; (c) copy, modify, or create derivative works of the Helium Technology; (d) access the Services to build a competing product or service; (e) circumvent any usage limit, security control, or Usage Metric measurement; (f) remove any proprietary notices; or (g) attempt to reidentify any Aggregated Data or Network Data.
3.4 Acceptable Use. Customer shall not use the Services to: (a) violate Applicable Law or third-party rights; (b) transmit malicious code; (c) interfere with or disrupt the Services or the systems of other Nova Labs customers; or (d) gain unauthorized access to any system or network.
3.5 Sandbox Services. Nova Labs may make Sandbox Services available at no charge or as part of a pilot. Customer shall use only simulated or test data in Sandbox Services unless Nova Labs agrees otherwise in writing. Sandbox Services are provided "AS IS," without any warranty, indemnity, support commitment, or service level, and Nova Labs may modify or discontinue them at any time. Nova Labs' total liability arising from Sandbox Services shall not exceed one thousand dollars ($1,000). Unless an Order Form states otherwise, Sandbox Services automatically expire thirty (30) days after Nova Labs first makes them available to Customer.
3.6 Third-Party Services. Customer's use of Third-Party Services is governed by Customer's agreements with their providers. Nova Labs is not responsible for Third-Party Services, including their availability, accuracy, security, or interoperability with the Services, except to the extent a Third-Party Service is a Subprocessor.
3.7 Updates to the Services. Nova Labs may update the Services from time to time. Nova Labs shall not materially decrease the core functionality or security of a Service during the then-current Subscription Term. Nova Labs shall give Customer at least ninety (90) days' notice before discontinuing any material feature identified in an applicable Product Schedule.
3.8 Territory. The Services are offered for use in the United States. Customer shall not use the Services outside the United States, or route the traffic of End Users located outside the United States, unless the applicable Order Form expressly permits it. An Order Form that permits use outside the United States may include additional terms required by Applicable Law in each permitted country, including data protection terms under Section 11.2 of the DPA. Customer remains responsible under Section 6.6 for its regulatory obligations in each permitted country.
3.9 Client Software. If a Service includes a software development kit, library, or other software that Nova Labs makes available for Customer to incorporate into Customer’s applications (“Client Software”), Nova Labs grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to: (a) incorporate the Client Software, in object code form, into Customer’s applications; and (b) distribute it, as incorporated, to End Users under terms at least as protective of Nova Labs as the Agreement. Sections 3.3(a) and 3.3(c) do not prohibit use of Client Software as permitted by this Section 3.9. Open source components are licensed under the licenses identified in the Documentation. On termination or expiration, Customer shall stop distributing the Client Software, and previously distributed copies will cease to work with the Services.
4. DEPLOYMENT FOR VENUE OWNERS
4.1 Right to Serve Venue Owners. Customer may use the Services to provide Customer's own services to Venue Owners at their Venues, including under Customer's own brand. Customer shall not sublicense the Services or give any Venue Owner administrative access to the Services.
4.2 Venue Owner Access. Customer may permit a Venue Owner's personnel to view dashboards and reports through accounts that Customer administers. Those personnel are Authorized Users, and Customer is responsible for them.
4.3 Venue Agreements. Before deploying the Services at any Venue of a Venue Owner, Customer shall have a Venue Agreement in effect with that Venue Owner that includes terms at least as protective of Nova Labs and the Services as the following: (a) a disclaimer of warranties, an exclusion of indirect and consequential damages, and a limitation of liability, in each case applying to Customer's suppliers and subcontractors; (b) the Venue Owner's authorization for Customer and its suppliers to access, collect, and process data from the Venue Owner's systems and Venues as contemplated by Sections 6.2 and 6.3; (c) the Venue Owner's acknowledgment of the matters described in Section 6.5; (d) acceptable use restrictions no less protective than Section 3.4; and (e) permission for Customer to engage subprocessors, including Nova Labs. Customer need not identify Nova Labs in any Venue Agreement. On Nova Labs' reasonable request, Customer shall confirm in writing that its Venue Agreements comply with this Section 4.3.
4.4 Responsibility for Venue Owners. As between the Parties, Customer is solely responsible for: (a) its relationship with each Venue Owner, including pricing, billing, collections, and service commitments; (b) first-line support to Venue Owners; and (c) the acts and omissions of Venue Owners and their personnel in connection with the Services. Nova Labs shall provide support only to Customer. Nova Labs shall not communicate directly with any Venue Owner about the Services unless Customer requests it or Applicable Law requires it.
4.5 Venues. Where Customer deploys the Services at Venues, Customer shall identify each Venue, and for each Venue the applicable Venue Owner, if any, in an Order Form or in a written site report delivered to Nova Labs before deployment. Where applicable, Nova Labs' usage reports will show Usage Metrics by Venue.
5. HELIUM NETWORK; NO DIGITAL ASSETS; NETWORK AGREEMENTS
5.1 Helium Network. Nova Labs (d/b/a Helium) founded and continues to provide operational support for the Helium Network, a decentralized wireless network whose access points are owned, deployed, and maintained by independent third parties ("Access Point Operators"). Nova Labs does not own those access points and makes no commitment regarding the coverage, capacity, availability, or performance of the Helium Network or any access point. Any access to the Helium Network provided as part of the Services is governed by the applicable Product Schedule. A Product Schedule may include commitments regarding systems that Nova Labs provides to connect Customer to the Helium Network, such as authentication, routing, and measurement systems (“Helium Network Interfaces”). No such commitment extends to the coverage, capacity, availability, or performance of the Helium Network or any access point.
5.2 No Digital Assets. All Fees are payable solely in United States dollars. Neither Party is obligated to deliver, and Customer acquires no right to, HNT or any other digital asset, token, or protocol reward under the Agreement. Nothing in the Agreement is an offer to sell, or a solicitation of an offer to buy, any digital asset. Any HNT or other rewards issued by the Helium protocol to Access Point Operators are determined programmatically by the protocol, not by Nova Labs, and Customer has no right to, or obligation with respect to, any such reward.
5.3 Network Agreements. Except as provided for Migrated Agreements, the Agreement is separate from, and does not amend, any Network Agreement. Each Network Agreement is governed by its own terms, including its own dispute resolution provisions. No earnings, rewards, service credits, or other amounts arising under any Network Agreement or from the Helium protocol may be applied to Fees, and no Fees may be withheld from, set off against, or paid with any such amounts. No data-sharing restriction in any Network Agreement limits the processing of Customer Data permitted by the Agreement. If an Order Form for Helium Network Integration identifies a Network Agreement as a “Migrated Agreement,” then, effective on the migration date stated in that Order Form (the “Migration Date”): (a) the Migrated Agreement terminates, and the Agreement governs all access to the Helium Network previously covered by it; (b) each Party remains responsible for amounts accrued and obligations arising under the Migrated Agreement before the Migration Date, and provisions of the Migrated Agreement that by their terms survive termination continue to apply to those amounts and obligations; and (c) the Parties waive any notice period, termination fee, or other condition to termination under the Migrated Agreement. Any other Network Agreement in effect when Customer signs an Order Form for Helium Network Integration continues to govern the access it covers, and the applicable Product Schedule governs only access ordered under that Order Form.
5.4 Descriptions of the Helium Network. Customer shall not state or imply that Customer, any Venue Owner, or Nova Labs owns, operates, or controls the Helium Network. Any reference by Customer to the Helium Network shall describe it as a decentralized wireless network that Nova Labs (d/b/a Helium) founded and continues to provide operational support for. Customer shall not make any statement regarding the suitability of the Services or the Helium Network for emergency or public safety communications without Nova Labs' prior written consent.
6. CUSTOMER RESPONSIBILITIES
6.1 Cooperation. Customer shall provide accurate information, timely cooperation, and reasonable access to Customer Systems as needed for Nova Labs to provide the Services.
6.2 Customer Systems and Rights. Customer is responsible for the operation, configuration, and security of Customer Systems. Customer represents and warrants that it has obtained, and shall maintain, all rights, licenses, consents, and authorizations from the owners and operators of Customer Systems (including any Venue Owner, carrier, neutral host, or distributed antenna system operator) necessary for Nova Labs to access, collect, and process data from Customer Systems as contemplated by the Agreement. Nova Labs is not responsible for the availability, accuracy, or completeness of data provided by Customer Systems.
6.3 Notices and Consents. Customer is responsible for providing all notices to, and obtaining all consents from, End Users and other individuals that Applicable Law requires for the collection and processing of Customer Personal Data (including location data) through the Services.
6.4 Configurations. Customer is solely responsible for the policies, key performance indicators, thresholds, and rules that it or its Authorized Users configure in the Services, and for the outcomes of those configurations. Nova Labs executes those configurations as set by Customer and in accordance with the Documentation.
6.5 Authentication Path; Redundancy. Certain Services, including WOX, operate in the authentication path for Wi-Fi offload connections and are designed to fail closed. If those Services are unavailable or cannot process an authentication request, the request will not be approved through the Services, and affected devices will continue to use the cellular or other network they would use in the absence of the Services. The Services do not restrict or replace a device's access to any cellular network. Customer is responsible for determining whether the Services are appropriate for its intended uses and for maintaining redundant communications capabilities at each Venue appropriate to those uses, including for critical communications. This Section 6.5 describes the operation of the Services only and does not describe the capabilities of the Helium Network or of any service provided under a separate agreement.
6.6 Regulatory Status. Nova Labs provides technology services to Customer, including access to Helium Network Interfaces. Nova Labs does not provide telecommunications services, commercial mobile services, or broadband internet access services to End Users under the Agreement and does not assume any regulatory obligation of a carrier. Customer is responsible for its relationship with, and its regulatory obligations to, its subscribers, including obligations relating to customer proprietary network information, emergency services, lawful intercept, and network management disclosures.
7. PROFESSIONAL SERVICES
7.1 SOWs. Nova Labs may be engaged to perform Professional Services pursuant to an SOW appended to an applicable Order Form. Changes to an SOW require a written change order signed by both Parties.
7.2 Customer Dependencies. Nova Labs is not responsible for any delay or failure to the extent caused by Customer's failure to perform the dependencies stated in an SOW or Section 6.
7.3 Acceptance. Unless an SOW states otherwise, each Professional Services deliverable is deemed accepted unless Customer notifies Nova Labs in writing within ten (10) business days after delivery of a material nonconformity with the SOW. Nova Labs shall correct any such nonconformity and redeliver the deliverable, and the same acceptance process applies to the corrected deliverable.
7.4 Deliverables. Nova Labs owns all deliverables and work products from Professional Services. Nova Labs grants Customer a perpetual, non-exclusive, non-transferable, fully paid license to use deliverables created specifically for Customer, such as configurations, reports, and documentation, for Customer's internal business purposes. This license does not include any right to the Services or other Helium Technology, which Customer may use only during the Subscription Term.
8. FEES AND PAYMENT
8.1 Fees and Pricing Models. Customer shall pay the Fees set forth in each Order Form. An Order Form may specify one or more of the following pricing models: (a) usage-based, at a rate per Usage Metric, billed monthly in arrears based on actual usage; (b) subscription, at a fixed recurring fee or a rate per Usage Metric that includes a stated usage allowance, which may be measured in a different Usage Metric (the “Usage Allowance”), with usage above the Usage Allowance billed monthly in arrears at the overage rate stated in the Order Form; or (c) any other pricing model stated in the Order Form. Except as expressly provided in the Agreement, Fees and minimum commitments are non-cancellable and non-refundable.
8.2 Usage Measurement. Nova Labs measures the Usage Metric using its systems as described in the applicable Product Schedule. Nova Labs shall include a usage summary with each usage-based invoice. Nova Labs' measurements control absent manifest error, subject to Customer's dispute rights under Section 8.6.
8.3 Invoicing. Unless an Order Form states otherwise: (a) fixed recurring Fees are invoiced annually in advance; (b) usage-based Fees and overage are invoiced monthly in arrears; and (c) Professional Services Fees are invoiced as stated in the SOW.
8.4 Payment. Customer shall pay each invoice within thirty (30) days after the invoice date, by ACH or wire transfer to the account Nova Labs designates in writing.
8.5 Taxes. Fees exclude sales, use, value-added, telecommunications, and similar taxes, all of which Customer shall pay, other than taxes based on Nova Labs' net income. If Customer is tax-exempt, Customer shall provide a valid exemption certificate.
8.6 Disputes. Customer may dispute an invoice in good faith by written notice within thirty (30) days after the invoice date that identifies the disputed line items and the basis for the dispute. Customer shall pay all undisputed amounts when due. The Parties shall work in good faith to resolve the dispute within thirty (30) days. Customer waives any dispute not raised within the thirty (30) day period.
8.7 Late Payment. Undisputed amounts not paid when due accrue interest at the lesser of one percent (1%) per month and the maximum rate permitted by Applicable Law.
8.8 Suspension for Non-Payment. If any undisputed amount is more than thirty (30) days past due, Nova Labs may suspend the affected Services after giving Customer at least ten (10) business days' written notice, and shall restore the Services promptly after payment.
8.9 Renewal Pricing. Nova Labs may increase Fees effective at the start of any renewal Subscription Term by giving Customer written notice at least ninety (90) days before the renewal date.
9. SUPPORT AND SERVICE LEVELS
9.1 Support. Nova Labs shall provide support to Customer in accordance with Appendix A.
9.2 Service Levels. Premium support and service levels apply only to Services for which an Order Form specifies Premium Support and attaches Nova Labs' Premium Support and Service Level Addendum (the "Premium Support Addendum") ("Premium Services"). The Premium Support Addendum is not a Posted Document and may be amended only by a writing signed by both Parties. For Premium Services, the service credits and termination right in the Premium Support Addendum are Customer's sole and exclusive remedies for any failure to meet the availability commitment. For all other Services, Nova Labs makes no availability commitment.
9.3 Exclusions. No service level applies to Sandbox Services, the Helium Network (other than Helium Network Interfaces, to the extent the Premium Support Addendum provides a service level for them), Third-Party Services, or Customer Systems.
10. DATA PROTECTION AND SECURITY
10.1 Ownership. As between the Parties, Customer owns all Customer Data, subject to any rights of Venue Owners and End Users.
10.2 Nova Labs' Use of Customer Data. Nova Labs shall process Customer Data only to: (a) provide, maintain, secure, and support the Services; (b) prevent fraud and abuse; (c) comply with Applicable Law; (d) follow Customer's documented instructions as set forth in the Agreement and the DPA; (e) record On-Chain Records as described in the applicable Product Schedule; and (f) create Aggregated Data as permitted by Section 10.3. Nova Labs processes Customer Data relating to a Venue Owner on Customer's behalf. Nova Labs shall not sell Customer Personal Data or share it for cross-context behavioral advertising.
10.3 Aggregated Data and Usage Data. Nova Labs may create Aggregated Data and may use Aggregated Data and Usage Data to operate, analyze, improve, develop, and promote its products and services, including (a) by making Aggregated Data available to other customers through the Services, and (b) publishing Aggregated Data, and statistics, insights, and analyses derived from Aggregated Data, in case studies, blog posts, white papers, industry reports, presentations, and other marketing and publicity materials relating to any Nova Labs product or service. Nova Labs shall not attempt to reidentify Aggregated Data and shall not disclose Aggregated Data in a form that identifies Customer, any Venue Owner, or any Venue. Any use of Customer’s name or logo remains subject to Section 20.4.
10.4 DPA. The DPA governs Nova Labs' processing of Customer Personal Data. To the extent Customer Data includes customer proprietary network information as defined in 47 U.S.C. § 222(h)(1) (“CPNI”), Nova Labs processes it solely as Customer’s vendor to provide the Services, and shall protect it under the DPA and Section 12 as if it were Customer Personal Data, whether or not it constitutes personal information under Applicable Law. Nothing in the Agreement makes Nova Labs subject to 47 U.S.C. § 222 or obligated to comply with it directly.
10.5 Security. Nova Labs shall implement and maintain the administrative, technical, and physical safeguards described in the Information Security Exhibit, which are designed to protect Customer Data against Security Incidents.
10.6 Security Incidents. Nova Labs shall notify Customer without undue delay, and in no event later than seventy-two (72) hours, after becoming aware of a Security Incident. The notice shall describe, to the extent known: (a) the nature of the Security Incident; (b) the categories and approximate volume of Customer Data affected; and (c) the measures taken or proposed. Nova Labs shall cooperate reasonably with Customer's investigation. Customer shall relay any such notice to affected Venue Owners as required by Applicable Law or the applicable Venue Agreement. Nova Labs shall bear the reasonable costs of investigation, remediation, and legally required notifications to the extent the Security Incident results from Nova Labs' breach of the Agreement.
10.7 Subprocessors. Nova Labs' current Subprocessors are listed in the Subprocessor List. Nova Labs shall give Customer at least thirty (30) days' notice before engaging a new Subprocessor. During that notice period, Customer may object to the new Subprocessor by written notice on reasonable data protection grounds. The Parties shall work in good faith to resolve the objection. If they cannot resolve it before the new Subprocessor is engaged, Customer may terminate the affected Order Forms by written notice. Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Services for that period.
10.8 AI Features. Certain Services include features that use machine learning or large language models, which may be provided by third-party model providers engaged as Subprocessors. Nova Labs shall contractually prohibit those providers from using Customer Data to train their models. Customer is responsible for reviewing Outputs before relying on them. Additional terms for AI features may appear in the applicable Product Schedule. If Customer connects the Services to AI tools or model providers that Customer selects, including through a Model Context Protocol server, those tools and providers are Third-Party Services, and the training restriction in this Section 10.8 does not apply to them.
10.9 Retention, Return, and Deletion. During the Subscription Term, Nova Labs retains Customer Data as described in the applicable Product Schedule, or for up to twelve (12) months if the Product Schedule is silent. For thirty (30) days after termination or expiration, Nova Labs shall make Customer Data available for export in a standard format. Nova Labs shall then delete Customer Data within ninety (90) days, except for (a) data in backups, which is deleted in the ordinary backup cycle; (b) data that Applicable Law requires Nova Labs to retain; and (c) On-Chain Records, which cannot be altered or deleted. Sections 10.1, 10.2, 10.4, 10.5, 10.6, 10.10, and 12 continue to apply to data retained under this Section 10.9, other than On-Chain Records, for as long as Nova Labs retains it. Nova Labs shall certify deletion on request. Customer may purchase transition assistance, including an extended export period, under an SOW.
10.10 Data Location. Nova Labs shall store Customer Data at rest in the United States unless Customer agrees otherwise in writing. Subprocessors may process Customer Data in the locations stated in the Subprocessor List, and Customer Data may transit or be temporarily cached outside the United States in the course of delivering the Services.
11. INTELLECTUAL PROPERTY
11.1 Helium Technology. Nova Labs and its licensors own all right, title, and interest in and to the Helium Technology. No rights are granted except as expressly stated in the Agreement.
11.2 Customer Data. Customer grants Nova Labs a non-exclusive, royalty-free license during the Subscription Term to use Customer Data as permitted by Section 10.
11.3 Feedback. If Customer provides suggestions or other feedback about the Services, Customer grants Nova Labs a perpetual, irrevocable, royalty-free, worldwide license to use that feedback for any purpose, without obligation to Customer.
11.4 Outputs. Customer may use the reports, dashboards, analytics, and other outputs that the Services generate for Customer (“Outputs”) for its business purposes, during and after the Subscription Term, and may share Outputs with third parties. Customer Data in Outputs remains Customer’s. Network Data and Aggregated Data in Outputs remain Nova Labs', and Customer shall not use Outputs to build a dataset or product that competes with the Services.
12. CONFIDENTIALITY
12.1 Definition. "Confidential Information" means non-public information that one Party (the "Discloser") discloses to the other Party (the "Recipient") in connection with the Agreement and that is marked confidential or would reasonably be understood to be confidential. Confidential Information includes the terms of each Order Form and SOW. These Terms, as published by Nova Labs, are not Confidential Information. Customer Data is Customer's Confidential Information. The Helium Technology is Nova Labs' Confidential Information.
12.2 Exclusions. Confidential Information does not include information that the Recipient can show: (a) is or becomes public through no fault of the Recipient; (b) was known to the Recipient without restriction before disclosure; (c) is independently developed without use of the Discloser's Confidential Information; or (d) is rightfully received from a third party without a confidentiality restriction.
12.3 Obligations. The Recipient shall use Confidential Information only to perform its obligations or exercise its rights under the Agreement and shall protect it with at least reasonable care. The Recipient may disclose Confidential Information only to its and its Affiliates' employees, contractors, and advisors who need to know it and who are bound by confidentiality obligations at least as protective as this Section 12. Customer may also share the Documentation, Service reports and Outputs with a Venue Owner as reasonably needed to provide Customer's services to that Venue Owner, under confidentiality obligations at least as protective as this Section 12. Nova Labs' recording of On-Chain Records as permitted by Section 10.2 is not a breach of this Section 12.
12.4 Compelled Disclosure. The Recipient may disclose Confidential Information to the extent required by law. Where legally permitted, the Recipient shall give the Discloser prompt notice and reasonable cooperation so the Discloser can seek protective treatment.
12.5 Duration. These obligations continue for three (3) years after termination of the Agreement, except that obligations for trade secrets continue for as long as the information remains a trade secret, and obligations for Customer Data continue for as long as Nova Labs retains it.
13. WARRANTIES AND DISCLAIMERS
13.1 Mutual. Each Party represents and warrants that: (a) it has full authority to enter into and perform the Agreement; and (b) it will comply with Applicable Law in its performance under the Agreement.
13.2 Nova Labs. Nova Labs warrants that: (a) the Services will perform materially in accordance with the Documentation and the applicable Product Schedule; (b) Professional Services will be performed in a professional and workmanlike manner; and (c) Nova Labs will use industry-standard measures designed to keep malicious code out of the Services. Customer must notify Nova Labs of a breach of clause (a) within thirty (30) days after the nonconformity first occurs. If Nova Labs cannot correct the nonconformity within thirty (30) days after receiving that notice, either Party may terminate the affected Service. Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Service for that period. Correction or refund is Customer's exclusive remedy for breach of clause (a).
13.3 Customer. Customer represents and warrants that it has all rights necessary to provide Customer Data to Nova Labs and to permit Nova Labs to process it as contemplated by the Agreement, including the rights described in Sections 6.2 and 6.3.
13.4 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, THE SERVICES, PROFESSIONAL SERVICES, AND HELIUM TECHNOLOGY ARE PROVIDED "AS IS," AND EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NOVA LABS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NOVA LABS MAKES NO WARRANTY REGARDING: (A) THE HELIUM NETWORK, EXCEPT AS EXPRESSLY STATED IN A PRODUCT SCHEDULE FOR HELIUM NETWORK INTERFACES; (B) THIRD-PARTY SERVICES OR CUSTOMER SYSTEMS; (C) THE RESULTS OF POLICIES OR CONFIGURATIONS SET BY CUSTOMER; OR (D) THE ACCURACY OF OUTPUTS GENERATED BY AI FEATURES.
14. INDEMNIFICATION
14.1 By Nova Labs. Nova Labs shall defend Customer against any third-party claim alleging that the Services, as provided by Nova Labs, infringe or misappropriate a third party's patent, copyright, trademark, or trade secret, and shall pay any resulting damages finally awarded or settlement amounts that Nova Labs agrees to. Nova Labs has no obligation for claims arising from: (a) Customer Data or Customer Systems; (b) combination of the Services with products, services, or data not provided by Nova Labs, where the claim would not have arisen but for the combination; (c) modifications not made by Nova Labs; or (d) use of the Services in breach of the Agreement or after Nova Labs has notified Customer to stop using them because of a claim. If the Services become, or in Nova Labs' opinion are likely to become, subject to such a claim, Nova Labs may: (i) procure the right for Customer to continue using the Services; (ii) modify the Services so they are non-infringing without materially reducing functionality; or (iii) if neither option is commercially reasonable, terminate the affected Service. If Nova Labs terminates a Service under clause (iii), Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Service for that period. This Section 14.1 states Nova Labs' entire liability, and Customer's exclusive remedy, for third-party intellectual property claims.
14.2 By Customer. Customer shall defend Nova Labs and its Affiliates against any third-party claim arising from: (a) Customer Data or Customer Systems, including any claim that Nova Labs' processing of Customer Data as permitted by the Agreement violates Applicable Law or third-party rights because a required right, notice, or consent was not obtained; (b) Customer's breach of Sections 3.3, 3.4, 4.3, 5.4, 6.2, 6.3, or 6.5, or Customer's violation of Applicable Law; or (c) Customer's services to Venue Owners or End Users, including any claim by a Venue Owner or by any individual at a Venue arising out of those services ("Venue Owner Claims"), in each case except to the extent the claim results from Nova Labs' breach of the Agreement or is covered by Section 14.1. Customer shall pay any resulting damages finally awarded or settlement amounts that Customer agrees to.
14.3 Procedure. The indemnified Party shall: (a) give prompt written notice of the claim, provided that a delay relieves the indemnifying Party of its obligations only to the extent the delay materially prejudices it; (b) give the indemnifying Party sole control of the defense and settlement; and (c) provide reasonable cooperation at the indemnifying Party's expense. The indemnifying Party may not settle any claim in a way that imposes an obligation or admission on the indemnified Party without the indemnified Party's prior written consent, which shall not be unreasonably withheld.
15. LIMITATION OF LIABILITY
15.1 Exclusion of Damages. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, OR GOODWILL, ARISING OUT OF OR RELATING TO THE AGREEMENT, EVEN IF ADVISED OF THEIR POSSIBILITY.
15.2 General Cap. EXCEPT AS PROVIDED IN SECTIONS 15.3 AND 15.4, EACH PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (THE "GENERAL CAP").
15.3 Enhanced Cap. FOR CLAIMS ARISING FROM (A) A PARTY'S BREACH OF SECTION 10 (DATA PROTECTION AND SECURITY), THE DPA, OR SECTION 12 (CONFIDENTIALITY), OR (B) A PARTY'S OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EACH PARTY'S TOTAL LIABILITY SHALL NOT EXCEED TWO (2) TIMES THE GENERAL CAP, OR, FOR CLAIMS ARISING UNDER AN ORDER FORM THAT STATES A DIFFERENT ENHANCED CAP, THE AMOUNT STATED IN THAT ORDER FORM (THE "ENHANCED CAP"). IN NO EVENT SHALL A PARTY'S TOTAL LIABILITY UNDER SECTIONS 15.2 AND 15.3 COMBINED EXCEED THE ENHANCED CAP.
15.4 Excluded Claims. SECTIONS 15.1 THROUGH 15.3 DO NOT APPLY TO THE FOLLOWING (EACH, AN "EXCLUDED CLAIM"): (A) A PARTY'S FRAUD OR WILLFUL MISCONDUCT; (B) CUSTOMER'S OBLIGATION TO PAY FEES; (C) CUSTOMER'S BREACH OF SECTIONS 3.3 OR 3.4; (D) BODILY INJURY OR DEATH CAUSED BY A PARTY'S NEGLIGENCE; OR (E) CUSTOMER'S OBLIGATIONS UNDER SECTION 14.2(c) FOR VENUE OWNER CLAIMS, TO THE EXTENT THE CLAIM WOULD HAVE BEEN BARRED OR LIMITED HAD THE APPLICABLE VENUE AGREEMENT INCLUDED THE TERMS REQUIRED BY SECTION 4.3.
15.5 Basis of the Bargain. The Parties agree that this Section 15 reflects an informed allocation of risk and is an essential basis of the Fees, and that it applies even if a limited remedy fails of its essential purpose.
16. TERM AND TERMINATION
16.1 Term. These Terms apply from the earlier of the effective date of Customer’s first Order Form or SOW and Customer’s acceptance under Section 2.1, and continue until no Order Form, SOW, or Sandbox Service remains in effect.
16.2 Subscription Term and Renewal. Each Subscription Term is stated in the applicable Order Form and renews automatically for successive twelve (12) month periods unless either Party gives written notice of non-renewal at least sixty (60) days before the end of the then-current term.
16.3 Termination for Cause. Either Party may terminate any Order Form or SOW, or all of them, by written notice if the other Party: (a) materially breaches the Agreement and fails to cure the breach within thirty (30) days after receiving written notice describing it; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to a bankruptcy petition that is not dismissed within sixty (60) days.
16.4 Effect of Termination. On termination or expiration of an Order Form: (a) Customer's right to use the affected Services ends, including at all affected Venues, and Customer is responsible for winding down its services to affected Venue Owners; (b) Customer shall pay all Fees accrued through the effective date; (c) if Customer terminates under Section 16.3 because of Nova Labs' uncured breach, Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Services for that period; (d) if Nova Labs terminates under Section 16.3, Customer shall pay any unpaid Fees for the remainder of the Subscription Term, including any minimum commitment; (e) Section 10.9 governs Customer Data; and (f) each Party shall return or destroy the other Party's Confidential Information, subject to Section 10.9. Termination of one Order Form does not affect any other Order Form.
16.5 Survival. Sections 1, 3.3, 3.9, 5.2, 5.3, 7.4, 8 (as to accrued amounts), 10.3, 10.9 (including the provisions it continues), 11, 12, 13.4, 14, 15, 16.4, 16.5, 18, and 20 survive termination or expiration.
17. INSURANCE
During any Subscription Term, while Customer deploys the Services at any Venue of a Venue Owner or uses the Services to provide services to subscribers or other End Users, Customer shall maintain technology errors and omissions and cyber liability insurance of at least one million dollars ($1,000,000) per claim. Customer shall provide certificates of insurance on request.
18. GOVERNING LAW AND DISPUTE RESOLUTION
18.1 Governing Law. The Agreement is governed by the laws of the State of New York, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
18.2 Executive Escalation. Before starting arbitration, a Party shall give the other Party written notice of the dispute, and senior executives of each Party shall negotiate in good faith for thirty (30) days after the notice.
18.3 Arbitration. Any dispute arising out of or relating to the Agreement that is not resolved under Section 18.2 shall be finally resolved by binding arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, before a single arbitrator, seated in New York, New York, and conducted in English. The arbitration and any award are confidential, except as needed to enforce the award. The arbitrator has no authority to award damages excluded or limited by Section 15. Judgment on the award may be entered in any court of competent jurisdiction.
18.4 Exceptions. Notwithstanding Section 18.3: (a) either Party may seek temporary, preliminary, or permanent injunctive relief in court to address a breach or threatened breach of Sections 3.3, 11, or 12; and (b) Nova Labs may bring an action in court to collect undisputed Fees. Each Party consents to the exclusive jurisdiction of the state and federal courts located in New York County, New York, for these actions.
18.5 Jury Waiver. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.
18.6 Costs. The arbitrator or court may award the prevailing Party its reasonable attorneys' fees and costs.
19. UPDATES TO THESE TERMS
19.1 Updates. Nova Labs may update these Terms, any Product Schedule, the DPA, the Information Security Exhibit, and Appendix A (each, a "Posted Document") at any time by posting the updated version at its posted location and updating its "Last Updated" date. Nova Labs shall keep an archive of prior versions of each Posted Document.
19.2 Non-Adverse Updates. An update that is not materially adverse to Customer takes effect when posted.
19.3 Materially Adverse Updates; Right to Terminate. An update is "materially adverse" if it materially reduces Customer's rights or materially increases Customer's obligations under the Agreement. Nova Labs shall give Customer at least thirty (30) days' notice of any materially adverse update by email to the notice contact in the applicable Order Form. The update takes effect on the date stated in the notice. Customer's continued use of the Services after that date constitutes acceptance of the update. Nova Labs may, at its election, treat any update as materially adverse and give notice under this Section 19.3. If Customer does not agree to a materially adverse update, Customer may terminate the affected Order Forms by written notice to Nova Labs before the update takes effect. The termination takes effect on the date the update would have taken effect and is not a breach. Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Services for that period.
19.4 Legally Required Changes. Notwithstanding Section 19.3, an update required by Applicable Law, or needed to address a material security risk, may take effect on a shorter period that Nova Labs specifies in its notice. Customer's termination right under Section 19.3 still applies. For such an update, Customer may exercise that right by written notice within thirty (30) days after Nova Labs' notice, effective on the date of Customer’s notice.
19.5 Limits on Updates. No update: (a) alters, without Customer's written consent, the Fees, Usage Allowance, minimum commitment, Subscription Term, or Special Terms in an executed Order Form, or any executed SOW; (b) applies to claims arising before the update takes effect; or (c) materially reduces the overall protection of Customer Data under the DPA or the Information Security Exhibit during a Subscription Term. Changes to the Subprocessor List are governed by Section 10.7.
20. GENERAL
20.1 Notices. Notices must be in writing and are effective: (a) when delivered personally; (b) one (1) business day after deposit with a nationally recognized overnight courier; or (c) when sent by email with confirmation of receipt. Notices to Nova Labs go to Nova Labs, Inc., 2261 Market Street, Ste. 10194, San Francisco, CA 94114, Attn: Legal, legal@helium.com. Notices to Customer go to the notice contact in the applicable Order Form. Nova Labs may also give notice of updates under Section 19 by email to that contact.
20.2 Assignment. Neither Party may assign the Agreement without the other Party's prior written consent, except that either Party may assign the Agreement without consent, on written notice, to an Affiliate or to a successor in a merger, acquisition, or sale of all or substantially all of the assets or business to which the Agreement relates. Any other attempted assignment is void.
20.3 Force Majeure. Neither Party is liable for delay or failure to perform caused by events beyond its reasonable control, except for payment obligations. The affected Party shall give prompt notice and use commercially reasonable efforts to resume performance. If a force majeure event continues for more than sixty (60) days, either Party may terminate the affected Order Form. Nova Labs shall refund any prepaid Fees for the period after termination, and Customer owes no Fees, including any minimum commitment, for the terminated Services for that period.
20.4 Publicity. Neither Party may use the other Party's name or logo in publicity or marketing without the other Party's prior written consent, which may be given by email.
20.5 Export and Anti-Corruption. Each Party shall comply with applicable export control, sanctions, and anti-corruption laws in connection with the Agreement.
20.6 Government Customers. If Customer is a governmental entity, the Parties shall agree in a signed writing on any additional terms required by Applicable Law.
20.7 Miscellaneous. The Parties are independent contractors. The Agreement creates no third-party beneficiaries, including any Venue Owner or End User. The Agreement is the Parties' entire agreement with respect to its subject matter and supersedes all prior agreements with respect to that subject matter. These Terms may be modified only under Section 19 or by a writing signed by both Parties, and an Order Form or SOW may be amended only by a writing signed by both Parties. A waiver is effective only in writing. If any provision is held unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions remain in effect. “Including” means including without limitation. Headings are for convenience only.
Appendix A: Standard Support
A.1 Scope. Nova Labs provides Standard Support for all production Services to Customer, and not to Venue Owners or End Users, during Business Hours through the support agent in the HeliumOS platform or by email to support@helium.com. "Business Hours" means 9:00 a.m. to 6:00 p.m. Pacific Time on business days.
A.2 Response Targets. Nova Labs will use commercially reasonable efforts to respond to properly submitted tickets within the following targets. Response targets are not guarantees, and failure to meet them is not a breach of the Agreement.
| Priority | Definition | Response Target |
|---|---|---|
| P1 Critical | Full outage of the production Service, or 75% or more of requests failing | 4 Business Hours |
| P2 High | Major degradation, or 30% to 75% of requests failing; workaround available | 1 business day |
| P3 Medium | Moderate degradation affecting less than 30% of requests; workaround available | 2 business days |
| P4 Low | Questions and feature requests | 5 business days |
A.3 No Availability Commitment. Nova Labs makes no commitment regarding the availability of any Service that receives Standard Support only. Premium support and service levels are available only under a Premium Support Addendum, as described in Section 9.2.
