END USER LICENSE AGREEMENT

Please read the terms and conditions of this End User License Agreement (the “EULA“) before using the DataRemote, Inc. (“Licensor”) devices (“Device”) and software (as embedded in the Device for the purpose of operating the Device, the “Software“).  By using Software you or the entity or company that you represent (“Licensee“) are unconditionally consenting to be bound by and are becoming a party to this EULA. If Licensee does not unconditionally agree to all the terms of this EULA, promptly cease any use of the Software.  Any changes, additions or deletions by Licensee to the EULA will not be accepted by Licensor and will not become part of this EULA.

1. LICENSE GRANT: Subject to the terms and conditions of this agreement, Licensor grants to Licensee, a limited, non-exclusive, nontransferable, non-sublicensable, territorially limited to the United States of America, license to use the Software solely with the Device on which it is deployed. Operation of the Software (including activation of RJ-11 ports) require an active subscription which may only be obtained from Licensor or Licensor’s authorized distributors, including AT&T (“Authorized Distributor”). 
2. RESTRICTIONS: Modifications, if any, to Devices and Software settings may only be made by Licensor or an Authorized Distributor.  Subject to the rights granted to Licensee under this EULA, title in and to the Software, including but not limited to, all copyright, patent, trade secret rights, and intellectual property rights shall remain in and with Licensor and its licensors. Except as expressly and unambiguously authorized under this EULA, Licensee may not, and will not permit others to: (i) copy, rent, lease, transfer, assign, sublicense, disassemble, reverse engineer, decompile or otherwise attempt to discover the source code of the Software, modify or alter any part of the Software, or (ii) use the Software for time sharing or service bureau purposes, or otherwise use the Software on behalf of any third party. The License does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Licensor or any other party without specific consent from Licensor or that party.
3. LIMITED WARRANTY AND DISCLAIMER: Licensor warrants only to Licensee that the Software will perform substantially in accordance with the Software specifications as may be published and modified by Licensor in its Internet site from time to time (“Specifications”) for 90 days following initial activation of the Device or as expressly agreed otherwise by Licensor in a written agreement, whichever is longer. In the event the Software does not conform to the Specifications, and if Licensee promptly notifies Licensor, Licensor’s and its suppliers’ entire liability and Licensee’s exclusive remedy shall be, at the election of Licensor, either (a) return of the price paid by Licensee during the last three (3) months, or (b) repair or replacement of the Software that does not conform with the Specifications.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 3 OR AS EXPRESSLY AGREED OTHERWISE BY LICENSOR IN A WRITTEN AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND LICENSOR AND ITS SUPPLIERS EACH DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RELIABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. WITHOUT DEROGATING THE AFOREMENTIONED, LICENSEE ACKNOWLEDGES THAT THE SOFTWARE FUNCTIONS OVER THE INTERNET AND/OR OTHER COMMUNICATION NETWORKS AND IT IS HEREBY IRREVOCABLY WAIVE ANY CLAIM THAT MAY ARISE IN CONNECTION WITH OR AS A RESULT OF ANY MALFUNCTION, DEFAULT OR UNSUITABILITY IN THE INTERNET OR ANY OTHER COMMUNICATION NETWORK OR THE CONNECTIVITY OF ANY PARTIES DEVICES TO THE INTERNET OR OTHER NETWORK. Nothing in this section will limit the express warranties and remedies, if any, extended to Licensee by an Authorized Distributor in a separate agreement, which will be solely between Authorized Distributor and Licensee. 
4. LIMITED LIABILITY: LICENSOR WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, SPECIAL, PUNITIVE OR OTHER LIKE DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF USE, PROFITS, REVENUE, BUSINESS OR GOODWILL WITH RESPECT TO ANY CLAIMS ARISING UNDER THIS EULA OR REGARDING THE SOFTWARE , EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOFTWARE IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT CUSTOMER USES THE DEVICE AND SOFTWARE IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK THEREFORE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY HEREUNDER EXCEED $100.00 OR THE FEES PAID TO LICENSOR BY LICENSEE HEREUNDER DURING THE PRECEDING THREE (3) MONTHS, WHICHEVER IS GREATER. THIS DISCLAIMER OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS EULA.  
5. OPEN SOURCE SOFTWARE: Licensee understands that Software may include Open Source Software. Open Source Software means any Software that is licensed pursuant to (whether or not Source Code is available or included in such license): (i) any license that is, or is substantially similar to, a license currently or in the future approved or identified by the Open Source Initiative, the Free Software Foundation, or any other similar organization, or listed at http://www.opensource.org/licenses, including all versions of the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the BSD license, the MIT license, the Eclipse Public License, the Common Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL); or (ii) any license under which Software or other materials are distributed or licensed as “free software,” “open source software” or under similar terms.
6. WAIVER: No failure or delay by either Party to assert any rights or remedies under this EULA will be construed as a waiver or a continuing waiver of such rights or remedies, nor will failure or delay by the non-breaching Party to assert a breach be deemed to waive that or any other breach. 
7. CHOICE OF LAW: This EULA will be construed and enforced in accordance with internal laws of the State of New York applicable to contracts made and performed entirely therein, without regard to conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods. All actions, claims or legal proceedings in any way pertaining to this EULA or the transactions to which it relates will be commenced and maintained in the federal or state courts of the State of New York, New York County.
8. WAIVER OF JURY TRIAL: Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to: (i) a trial by jury in any court action arising among the Parties, whether under or otherwise related to this EULA, and whether made by claim, counterclaim, third party claim or otherwise; and (ii) any right to pursue any claim or action arising out of or relating to this EULA on a class or consolidated basis or in a representative capacity.
9. SEVERABILITY: In the event that any provision of this EULA will be unlawful or otherwise unenforceable, such provision will be severed, and the entire EULA will not fail on account thereof, the balance continuing in full force and effect, and the Parties will endeavor to replace the severed provision with a similar provision that is not unlawful or otherwise unenforceable.
10. RELATIONSHIP OF THE PARTIES: This EULA is between Licensor and Licensee as independent contractors. 
11. EXPORT REGULATIONS: Licensee agrees to comply with, and not act or fail to act in any way that would violate, the applicable international, national, state, regional and local laws and regulations, including, without limitation, the United States Foreign Corrupt Practices Act, the Export Administration Act and the Export Administration Regulations, as amended or otherwise modified from time to time, and neither Licensor nor Licensee shall be required under this EULA to act or fail to act in any way which it believes in good faith will violate any such laws or regulations.
12. MODIFICATION: Licensor reserves the right to modify this EULA if necessary and the modified agreement will govern. In the case of modification Licensor will publish such updates at https://dataremote.com/apba_eula/, or its successor. In the event of a conflict between the terms of this EULA the terms of an express written agreement executed between Licensor and Licensee, the terms of such other agreement shall control. If you are not willing to be bound by the modified terms of this EULA, you should promptly cease all use of the Software and delete any copies thereof, your continued use of the Software shall be considered consent to this EULA and its modifications. 
13. NOTICES: Should Licensee have any questions concerning this License, or if Licensee desire to contact Licensor, for any reason, please use the contact information enclosed in the product or send an email to: [email protected].