DataRemote End User License Agreement

DATAREMOTE, INC.

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” and together, the “Product”). By using the 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. Licensee’s continued use of the Software shall also constitute assent to the terms of this EULA. If Licensee does not unconditionally agree to all of 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 be part of this EULA.

1. LICENSE GRANT: Subject to the terms and conditions of this EULA, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, subject to the terms of this EULA, a limited, revocable, non-exclusive, nontransferable, non-sublicensable, territorially limited to the United States of America, object code 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 (“Authorized Distributor”). This license includes, if applicable, use of the DataRemote API subject to this EULA and any other agreement between you, DataRemote and or the Authorized Distributor. You shall not distribute or otherwise disseminate the DataRemote API by any means or in any form, except as an integral part of your use. Except as expressly stated in this license grant, Licensor reserves unto itself and its successors and assigns any right not specifically granted. It is acknowledged that all right, title and interest in the Software will remain vested exclusively with the Licensor and that the Software is licensed on a subscription basis and not “sold” to Licensee.

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 use the Software without an active subscription, 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 unless separately provided in writing. Licensee agrees not to attempt to circumvent any server or network security through SSH access or any other method without prior written consent of an authorized representative of the owner thereof.

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 the purchase of the Device, excluding any Open Source Software (as defined below). 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 to Licensor by Licensee for the Software 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, 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, NONIFRINGEMENT 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, (i) LICENSEE IS SOLELY RESPONSIBLE FOR ENSURING PROPER OPERATION WITH ITS ALARM / MONITORING PROVIDER AND IN NO EVENT SHALL LICENSOR OR ITS VENDORS BE LIABLE FOR ANY LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE, ATTEMPTED USE, OR INABILITY TO ACCESS LIFE SUPPORT, ALARM OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY CALL OR SERVICE AND (ii) LICENSEE ACKNOWLEDGES THAT IT IS AWARE TO THE FACT 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 AND/OR UNSUITABILITY IN THE INTERNET AND/OR ANY OTHER COMMUNICATION NETWORK AND/OR THE CONNECTIVITY OF ANY PARTIES DEVICES TO THE INTERNET OR OTHER NETWORK.

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 DEVICE AND SOFTWARE ARE 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 DEVICE AND 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 ONE THOUSAND DOLLARS ($1,000.00) OR THE SOFTWARE FEES PAID TO LICENSOR BY LICENSEE HEREUNDER DURING THE PRECEDING THREE (3) MONTHS, WHICHEVER IS GREATER. THE PROVISIONS OF THIS SECTION WILL NOT LIMIT LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER THIS EULA. THIS DISCLAIMER OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS EULA.

5. US GOVERNMENT END USERS: The Products and Authored Work are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Government end users will acquire the Software and Documentation with only those rights set forth in this EULA. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.

6. 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.

7. INDEMNIFICATION: Licensor shall indemnify, defend and hold harmless Licensee, its affiliates, and its and their respective employees, officers and directors from and against any claims, liabilities, losses, costs, or damages (including legal fees and costs) arising out of any third party claim brought against them to the extent resulting from the Product infringing any US intellectual property rights of a third party (“IP Claim”), but not to the extent that such infringement is attributable to: (i) content, materials or data transmitted using the Product; (ii) modification of the Product (other than by Licensor or an Authorized Distributor), (iii) combination of the Product with equipment, software or other materials, data, facilities, services or methods not furnished by Licensor or an Authorized Distributor; (iv) use of the Product in violation of this EULA or the Specifications; or (v) Open Source Software. In the event that an IP Claim is alleged, or in Licensor’s judgement, likely to be alleged, Licensor may at its sole option and expense either: (a) procure the right for Licensee to continue using such Product; (b) replace or modify the affected Product so that the Product becomes non-infringing; or (c) if none of the foregoing alternatives are possible after Licensor has used its commercially reasonable efforts, terminate the license under this EULA without liability. Licensee shall promptly notify Licensor in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim; provided, however, that the failure to promptly notify Licensor shall not relieve the Licensor of its indemnity obligations hereunder except to the extent prejudiced thereby. Licensor shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that: (i) Licensee shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and (ii) Licensor shall not intentionally impede participation by Licensee. Licensee shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of Licensor.

8. WAIVER: No failure or delay by either Licensor, Authorized Distributor or Licensee 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 to assert a breach be deemed to waive that or any other breach.

9. 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.

10. 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.

11. CLASS ACTION WAIVER: Licensee agrees that any cause of action or claim will be resolved individually, and Licensee agrees that it will not consolidate or seek class treatment for any claims, unless previously agreed to in writing by both parties.

12. 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.

13. ASSIGNMENT: This Agreement and all rights and obligations hereunder are between the Licensor and Licensee and may not be transferred or assigned by the Licensee at any time. The Licensor may assign its rights under this Agreement to any entity that assumes the Licensor’s obligations hereunder.

14. INTEGRATION: This Agreement is the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes the prior discussions, negotiations and memoranda related hereto.

15. 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.

16. 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/legal or provide written notice thereof. 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.

17. 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]. f