End User License Agreement

1. SCOPE AND APPLICABILITY
You agree to be bound by the terms of this EULA when:
b) You download, install, or use the mIoT Technology; or
c) You expressly agree to the terms of this EULA.

If You do not agree with the terms of this EULA, You should not use the Hardware and not use or install the mIoT Technology.

You should carefully read the following terms and conditions before using any mIoT device, product, component or parts (Hardware) which contains embedded software.

This End User License Agreement (“EULA”) covers Your use of mIoT’s Software and Cloud Services (“mIoT Technology”). This EULA also incorporates some product specific terms that may apply to the mIoT Technology.

Some terms are defined in this EULA, see clause 13 (Definitions) and the defined terms are capitalised herein.

2. USING mIoT TECHNOLOGY
2.1. mIoT grants You a non-exclusive, non-transferable (except with respect to the Software or Platform under the MIoT Software Transfer Policy):
a) license to use the Software;
b) and right to use the Cloud Services,
where acquired from an Approved Source (“Rights”).

2.2. Use by Third Parties
You may permit Authorized Third Parties to exercise the Rights on Your behalf, provided that You are responsible for:
a) ensuring that such Authorized Third Parties comply with this EULA and
b) any breach of this EULA by such Authorized Third Parties,
and indemnify mIoT in relation to loss occasioned as a result of your breach or failure to do so.

2.3. Trial Use
If mIoT grants You Rights to use mIoT Technology on a trial basis (“Evaluation Software”), You may use the Technology for a period of 60 days from installation.
If You fail to stop using and/or return the Evaluation Software by the end of the trial period, You may be invoiced for such use at mIoT’s standard rates. mIoT, in its discretion, may stop providing the Evaluation Software and Services at any time. You will no longer have access to any related data, and must immediately cease using the mIoT Technology. Except where expressly agreed in writing mIoT will not have any liability relating to Your use of the Evaluation Software and Your use of such software, including in production environment, is at Your own risk.

2.4. Upgrades
You will be informed of Upgrades to the Software and are encouraged to download and use all upgrades, modifications, variations and new versions of the Software as soon as they are made available.
Older versions of Software may become inoperable and may no longer be supported.
2.5. Interoperability of Software
If agreed in relation to provision of the Services, mIoT will provide You with the information needed to achieve interoperability between the Software and another independently created program, for example should You wish to maintain Your own platform or database. MIoT may require You to treat such information as Confidential Information.

2.6. Subscription Renewal
Your right to use any mIoT Technology if acquired on a subscription basis, will automatically renew for the renewal period indicated on any Purchase Order which You or Your mIoT Partner placed with mIoT (“Renewal Term”). Where no renewal period is inducted on a Purchase Order then the subscription will automatically renew on an annual basis, unless:
(a) You notify Your Approved Source in writing at least 45 days before the end of Your then- current Usage Term, of Your intention not to renew; or
(b) You or Your mIoT Partner elect not to auto-renew at the time of the initial order placed with mIoT.

Your Approved Source will notify You in advance of any Renewal Term if, fee changes will apply for the Renewal Term. The new fees will apply for the upcoming Renewal Term unless You or Your mIoT Partner promptly notify mIoT in writing, before the renewal date, that You do not accept the fee changes. In that case, Your subscription will terminate at the end of the current Term.

3. ADDITIONAL CONDITIONS OF USE
3.1. mIoT Technology Generally
Unless expressly agreed by mIoT, You may not:
a) transfer, sell, sublicense, monetize or make the mIoT Technology available to any third party;
b) use the Software on equipment not authorized by mIoT, or use Software on a different device
c) (except as permitted under mIoT’s Software License Portability Policy);
d) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks;
e) reverse engineer, decompile, decrypt, disassemble, modify, or make derivative works of the mIoT Technology; or
f) use mIoT Content other than as part of Your permitted use of the mIoT Technology.

3.2. Cloud Services
You will not intentionally:
a) interfere with other customers’ access to, or use of, the Cloud Service, or with its security;
b) facilitate the attack or disruption of the Cloud Service, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots);
c) cause an unusual spike or increase in Your use of the Cloud Service that negatively impacts the Cloud Service’s operation; or
d) submit any information that is not contemplated in the applicable Documentation

3.3. Evolving mIoT Technology
mIoT may:
a) enhance or refine a Cloud Service, although in doing so, mIoT will not materially reduce the core functionality of that Cloud Service, except as contemplated in this Section; and
b) perform scheduled maintenance of the infrastructure and Software used to provide a Cloud Service, during which time You may experience some disruption to that Cloud Service.
c) whenever reasonably practicable, provide You with advance notice of such maintenance. You acknowledge that, from time to time, mIoT may need to perform maintenance without providing You with advance notice, during which time mIoT may temporarily suspend Your access to, and use of, the Software.
d) end the life of any mIoT Technology, including component functionality (“EOL”), by providing written notice on www.miot.com.au. If You or Your mIoT Partner prepaid a fee for Your use of the mIoT Technology which becomes EOL before the expiration of Your then-current Term, mIoT will use commercially reasonable efforts to transition You to a substantially similar mIoT Technology. If mIoT does not have substantially similar MIoT Technology, then mIoT will provide you with a credit to be applied towards the future purchase of mIoT products.

3.4. Protecting Account Access
You will keep all account information up to date, use reasonable means to protect Your account information, passwords and other login credentials, and promptly notify mIoT of any known or suspected unauthorized use of or access to Your account.

3.5. Use with Third-Party Products
If You use the mIoT Technology together with third-party products, such use is at Your risk. You are responsible for complying with any third-party provider terms, including its privacy policy. mIoT does not provide support or guarantee ongoing integration support for Hardware that is not mIoT Technology.

3.6. Open Source Software
Open source software not owned by mIoT is subject to separate license terms. mIoT will endeavour to ensure that open source software licences will not materially affect Your ability to exercise Your Usage Rights in the mIoT Technology.

4. FEES
To the extent permitted by law, orders for Hardware and the mIoT Technology may not be cancelled once placed. Fees for Your use of mIoT Technology are set out in Your Purchase Order. If You use mIoT Technology beyond Your Entitlement (“Overage”), You may be invoiced, and You agree to pay, for such Overage.

Different device fees and data overage charges may occur based on how devices are configured, number of inputs and different sampling rates. This will generate different daily device usage in terms of “Measurements, Events, Alarms” (MEAs) and determine Device Class charges as confirmed in Your Purchase Order (See 13. Definitions – Device Class).

5. CONFIDENTIAL INFORMATION AND USE OF DATA
5.1. Confidentiality
Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient:
a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and
b) is liable for any breach of this Section by its Permitted Recipients.
c) acknowledges that such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations;
i. is or has become public knowledge through no fault of Recipient; or
ii. is independently developed by Recipient.
d) Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, in relation to any action pursued by Discloser.
e) Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser.

5.2. How We Use Data
mIoT will access, process and use data in connection with Your use of the mIoT Technology in accordance with applicable privacy and data protection laws. For further detail, please visit mIoT’s trading terms and conditions and Data Protection Agreement, located at www.miot.com.au

5.3. Notice and Consent
To the extent Your use of the mIoT Technology requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the mIoT Technology. You must only use such data subject to a minimum standard which meets (or exceeds) mIoT’s Privacy Policy.

6. OWNERSHIP
Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights. You retain any ownership of Your content and mIoT retains ownership of the mIoT Technology and mIoT Content. mIoT may use any feedback You provide in connection with Your use of the mIoT Technology, or any works derived from such feedback, as part of its business operations and you will have no right or claim in relation to same.

7. INDEMNIFICATION
7.1. Claims
mIoT will defend any third-party claim against You asserting that Your authorised use of mIoT Technology infringes a third party’s patent, copyright or registered trademark (“IP Claim”). mIoT will indemnify You against the final judgment entered by a court of competent jurisdiction, provided that You:
a) promptly notify mIoT in writing of the IP Claim;
b) fully cooperate with mIoT in the defense of the IP Claim; and
c) grant mIoT the right to exclusively control the defense and settlement of the IP Claim, and any subsequent appeal. mIoT will have no obligation to reimburse You for legal fees or costs incurred prior to mIoT’s receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.

7.2. Additional Remedies
If an IP Claim is made and prevents Your exercise of the Rights, mIoT will either procure for You the right to continue using the mIoT Technology or replace or modify the mIoT Technology with functionality that is at least equivalent. Only if mIoT determines that these alternatives are not reasonably available, may mIoT terminate Your Rights upon written notice to You and will refund You a prorated portion of the fees paid for the mIoT Technology for the remainder of the unexpired Term.

7.3. Exclusions
mIoT has no obligation with respect to any IP Claim based on:
a) compliance with any designs, specifications, or requirements You provide or a third party provides on Your behalf;
b) Your modification of any mIoT Technology or modification by a third party;
c) the amount or duration of use made of the mIoT Technology revenue You earned, or services You offered;
d) operation, or use of mIoT Technology, including combined them with non-mIoT products, software or business processes;
e) Your failure to modify or replace mIoT Technology as required by mIoT; or
f) Any mIoT Technology provided on a no charge, beta or evaluation basis.

7.4. Remedy
This clause provides Your exclusive remedy against mIoT for any IP Claims against You.

8. WARRANTIES AND REPRESENTATIONS
8.1 Performance
mIoT warrants that during the Term, it will provide the Cloud Services with commercially reasonable skill and care in accordance with the Documentation.

8.2 Malicious Code.
mIoT will use commercially reasonable efforts to deliver the Software free of Malicious Code.

8.3 Qualifications.
Clauses 8.1 and 8.2 do not apply if the Software, Hardware or the equipment on which it is authorized for use:
a) has been altered, except by mIoT or its authorized representative;
b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or mIoT’s instructions;
c) is acquired on a no charge, beta or evaluation basis; or
d) has not been provided by an Approved Source.

8.4 In the event of mIoT’s breach of this clause 8, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at mIoT’s option, either:
a) repair or replacement of the Software; or
b) a refund of the:
i. license fees paid or due for the non-conforming Software, or
ii. the fees paid for the period in which the Cloud Service did not comply.

8.5 Where mIoT provides a refund of license fees paid for Software, You must return or destroy all copies of the applicable Software.

8.6 Except as expressly stated in this Section, to the extent allowed by law, mIoT expressly disclaims all warranties and conditions of any kind, express or implied, including any warranty, as to merchantability, fitness for a particular purpose or noninfringement, or that the mIoT Technology will be secure, uninterrupted or error free. If You are a consumer, You may have legal rights in Your country of residence that prohibit the limitations set out in this clause from applying to You, and, where prohibited, they will not apply.

9. LIABILITY
9.1. Neither party will be liable for indirect, incidental, exemplary, special or consequential damages; loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings.

9.2. The maximum aggregate liability of each party under this EULA is limited to the fees received by mIoT for the Software;
This limitation of liability does not apply to liability arising from:
a) Your failure to pay all amounts due; or
b) Your breach of clauses 2.1 (License and Right to Use), 3.1 (mIoT Technology), 3.2 (Cloud Services) or 12.8 (Export).

10. TERMINATION AND SUSPENSION
10.1 Suspension.
mIoT may immediately suspend Your Rights if You breach clauses 2.1 (License and Right to Use), 3.1 (mIoT Technology), 3.2 (Cloud Services) or 12.8 (Export).

10.2 Termination.
If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause.

10.3. mIoT may immediately terminate this EULA if You breach clauses 2.1 (License and Right to Use), 3.1 (mIoT Technology), 3.2 (Cloud Services) or 12.8 (Export).

10.4. Upon termination of the EULA, You must stop using the mIoT Technology and destroy any copies of Software and Confidential Information within Your control.

10.5. Upon mIoT’s termination of this EULA for Your material breach, You will pay mIoT or the Approved Source any unpaid fees through to the end of the then-current Usage Term.

10.6. If You continue to use or access any mIoT Technology after termination, mIoT or the Approved Source may invoice You, and You agree to pay, for such continued use.

11. VERIFICATION
During the Usage Term and for a period of 12 months after its expiry or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the mIoT Technology (“Verification Records General Provisions).

12. SURVIVAL
Clauses 4, 5, 6, 8, 9, 10, 11 and 12 will survive termination or expiration of this EULA.

12.1. Third-Party rights
This EULA does not grant any right or cause of action to any third party.

12.2. Assignment and Subcontracting
You may not assign or novate this EULA in whole or in part without mIoT’s express written consent. mIoT may:
a) by written notice to You, assign or novate this EULA in whole or in part to an Affiliate of mIoT, or otherwise as part of a sale or transfer of any part of its business; or
b) subcontract any performance associated with the mIoT Technology to third parties, provided that such subcontract does not relieve mIoT of any of its obligations under this EULA.

12.3. mIoT Partner Transactions
If You purchase mIoT Technology from a mIoT Partner, the terms of this EULA apply to Your use of that mIoT Technology and prevail over any inconsistent provisions in Your agreement or Purchase Order with the mIoT Partner.

12.4. Modifications to the EULA
MIoT may change this EULA by updating its terms on www.miot.com.au. Changes to the EULA apply to any Rights acquired or renewed after the update.

12.5. Compliance with Laws
Each party will comply with all laws and regulations applicable to their obligations under this EULA. MIoT may restrict the availability of the mIoT Technology in any particular location or modify or discontinue features to comply with applicable laws.

12.6. Governing Law and Venue
This EULA, and any disputes arising from it, will be governed exclusively by the law of the State of Queensland, Australia and the Courts having jurisdiction in that State.

12.7 Notice
Any notice delivered by mIoT to You under this EULA will be delivered via email, to the address set out in any Purchase Order.

12.8. No Waiver
Failure by either party to enforce any right under this EULA will not waive that right.

12.9. Severability
If any portion of this EULA is not enforceable, it will not affect any other terms and the unenforceable term will be severed to the extent it is possible to do so, while the remainder of the term is given effect.

12.10. Entire agreement
This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral). The parties acknowledge that they may enter into other agreements (including incidental to this agreement) for the supply of goods or services.

12.11. Translations
mIoT may provide local language translations of this EULA in some locations. You agree that those translations are provided for informational purposes and if there is any inconsistency, the English version of this EULA will prevail.

13. DEFINITIONS
“Affiliate” means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., an agreement that allows control).

“Approved Source” means mIoT or a mIoT Partner.

“Authorized Third Parties” means Your Users, Your Affiliates, Your third-party service providers, and each of their respective Users permitted to access and use the mIoT Technology on Your behalf.

“Cloud Service” means the mIoT hosted software-as-a-service offering or other mIoT cloud- enabled feature described in the applicable Product Specific Terms. Cloud Service includes applicable Documentation and may also include Software and/or Platform.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is
a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or
b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.
“Delivery Date” means the date set out in a Purchase Order and where no date is agreed:
a) where Usage Rights in Software or Cloud Services are granted separately:
i. for Software, the date Software is made available for download or installation, and
ii. for Cloud Services, the date on which the Cloud Service is made available for Your use; or
b) where Usage Rights in Software and Cloud Services are granted together, the earlier of the date Software is made available for download, or the date on which the Cloud Service is made available for Your use.

“Device Class” is defined by the average frequency number of MEAs (measurements, events, alarms) a device sends to the Cloud Services Platform. Refer to table below for examples of different use cases and related MEA estimates.
a) Class A devices < 24 MEA’s per device per day
b) Class B devices ≥ 24 MEA’s and <144 MEA’s per day
c) Class C devices ≥144 and <1440 per day
d) Class D devices 1440 and <8640 per day
Number of MEAs per day is determines by the average number of MEAs per day over a calendar month. Get API calls are not counted towards daily MEA allowance.

“Documentation” means the technical specifications and usage materials officially published by mIoT specifying the functionalities and capabilities of the applicable mIoT Technology.

“Entitlement” means the specific metrics, duration, and quantity of mIoT Technology that You commit to acquire from an Approved Source through individual acquisitions or Your participation in a mIoT buying program.

“Hardware” means any mIoT device, product, component or parts.

“Malicious Code” means code that is designed or intended to disable or impede the normal operation of, or provide unauthorized access to, networks, systems, Software or Cloud Services other than as intended by the mIoT Technology (for example, as part of some of mIoT’s security products).

“mIoT Content” means any
a) content or data provided by mIoT to You as part of Your use of the mIoT Technology and
b) content or data that the mIoT Technology generates or derives in connection with Your use. mIoT Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and mIoT’s compilation of suspicious URLs.

“mIoT Partner” means a mIoT authorized reseller, distributor or systems integrator authorized by mIoT to sell mIoT Technology. mIoT Technology will include the Software and Cloud Services.

“mIoT” “we” “our” or “us” means mIoT or its Affiliate(s).

“Platform” means a website or platform mentioned by mIoT for use with the Software or Services.

“Product Specific Terms” means additional product related terms applicable to the mIoT Technology You acquire as set out at www.miot.com.au

“Purchase Order” means an order for the purchase of Hardware and/or ancillary services, whether placed in person, electronically or online.

“Software” means the mIoT computer programs including Upgrades, firmware and applicable Documentation.

“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.

“Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable mIoT Technology.

“User” means the individuals (including contractors or employees) permitted to access and use the mIoT Technology on Your behalf as part of Your Entitlement.

“You” means the individual or legal entity purchasing the mIoT Technology.

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