IOTIUM GENERAL TERMS AND CONDITIONS

These IoTium General Terms and Conditions form a part of the agreement between IoTium, Inc. (“IoTium”) and the customer (individual or entity) (“Customer” or “you” or “your”) identified on the applicable order form (“Order”) under which Customer has ordered certain subscriptions, products, or services from IoTium. This agreement includes these IoTium General Terms and Conditions and any applicable Order or SOWs (together, the “Agreement”).

1. SERVICES
1.1 IoTium Service. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable Fees), IoTium grants Customer a non-exclusive, non-transferable right, during the Subscription Term, to (i) Use IoTium’s web-based service expressly identified on the applicable Order executed by the parties (such service, the “IoTium Service”) and (ii) use IoTium’s iNode software which came pre-installed on certain hardware that has been purchased or leased by the Customer (“iNode Software”), solely for Customer’s internal business purpose. “Use” means that Customer may access the IoTium Service, at the subscription level (i.e. Retail, Commercial or Industrial or other such service level) indicated in the Order for interaction with up to the number of instances of iNode Software indicated on each Order, solely for Customer’s internal business purpose, and solely in accordance with any other limitations set forth in the Order, which may include, without limitation, restrictions on data transmission, memory, CPUs, connectivity, and number of end points.

1.2  Applications.
1.2.1 Development of Customer Applications. In the event that IoTium gives Customer access to IoTium’s development materials which are generally provided as part of IoTium Intelligent Edge Computer Developer Program (“Development Materials”), including (i) any technical documentation, sample software code, meta data categories, files, and any other related materials or tools, and (ii) any error corrections, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of any of the foregoing, then IoTium hereby grants to Customer a nonexclusive, nontransferable, limited right and license, with no right to sublicense, to (a) download a reasonable number of copies of the Development Materials on computers owned or controlled by Customer, (b) make a reasonable number of copies of any documentation included in the Development Materials, and (c) allow Customer’s employees and contractors that have a need to access the Development Materials to access and use the Development Materials, in each instance solely as necessary for the purpose of developing and testing Customer Applications as set forth in this Agreement. “Customer Applications” means applications that are developed and owned by Customer using the Development Materials and are intended for use by Customer’s end users (“Customer End Users”) of the IoTium Service. Except as specifically provided herein, IoTium does not grant to Customer any right or license, express or implied, in the Development Materials. Customer shall not redistribute the Development Materials.

1.2.2 Use and Restrictions of Customer Applications. As a condition to using the Development Materials, Customer agrees that: (i) Customer will only use the Development Materials for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations; (ii) Customer will not use the Development Materials to develop any Customer Applications which are unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act; (iii) Customer Applications will be developed in compliance with the documentation provided by IoTium and any other requirements or guidelines set forth be IoTium from time to time; (iv) the Customer Applications do not and will not violate, misappropriate, or infringe any intellectual property rights, rights of privacy and publicity, or other proprietary or legal right of any third party or of IoTium; and (v) Customer will not create any Customer Application that would disable, hack or otherwise interfere with any security, digital signing, digital rights management content protection, verification or authentication mechanisms implemented in or by the IoTium Service or iNode Software, or other IoTium software, services or technology, or enable others to do so. Customer is solely responsible for obtaining all applicable licenses necessary for the development and use of Customer Applications. If any Customer Application includes any free or open source software, Customer agrees to comply with all applicable Open Source Software licensing terms. Customer also agrees not to use any free or open source software in the development of any Customer Application in such a way that would cause the IoTium Service, iNode Software, or the Development Materials, in whole or in part, to be subject to any free or open source software licensing terms.

1.2.3 No Distribution of Customer Applications to Third Parties. Customer will access and use Customer Applications solely for Customer’s internal business purpose and Customer is not authorized to, and will not, distribute the Customer Applications to third parties, including without limitation through the IoTium Orchestrator or any other method of distribution, pursuant to this Agreement. In the event Customer wishes to distribute any Customer Applications to third party end users of the IoTium Service or iNode Software, such distribution is subject to IoTium and Customer entering into IoTium’s Developer Program and Distribution Agreement. In such case, Customer will contact IoTium at the following email address to fully execute the IoTium Developer Program and Distribution Agreement: info@iotium.io. IoTium reserves the right to approve or withhold approval of distribution of any Customer Application at its sole discretion.

1.2.4 Use of Third Party Applications. To the extent Customer wishes to use third party applications in combination with the IoTium Service or iNode Software (“Third Party Applications”), including applications which are made available through IoTium’s Orchestrator, such use is solely governed by the applicable license agreement between such third party and Customer.

1.2.5 Applications Disclaimer and Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (i) IOTIUM EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ANY THIRD PARTY APPLICATIONS OR CUSTOMER APPLICATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE, AND (ii) IN NO EVENT WILL IOTIUM BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO ANY THIRD PARTY APPLICATIONS OR CUSTOMER APPLICATIONS, INCLUDING ALL LIABILITY IN CONNECTION WITH THE: (a) CONTENT, (b) SELECTION, (c) FUNCTIONALITY, (d) PRODUCT FAILURES, (e) VULNERABILITIES TO INTRUSION OR ATTACK, (f) OR QUALITY OF UPDATES OF, OR ARISING FROM, SUCH APPLICATIONS. IOTIUM EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM ANY ISSUES RELATED TO THE COMBINATION OF CUSTOMER APPLICATIONS OR THIRD PARTY APPLICATIONS WITH ANY IOTIUM PRODUCT OR SERVICES, INCLUDING ISSUES WITH INTEROPERABILITY.

1.3 Service Level. During the Subscription Term, IoTium will use commercially reasonable efforts to make the IoTium Service available to Customer and perform in accordance with the following service levels: 99% uptime, excluding maintenance, measured on a rolling 6-month basis. Notwithstanding the foregoing, IoTium will not be responsible for downtime that results from (a) failure of your hardware, equipment, applications, and software and/or third party hardware, equipment, applications or software not within the primary control of IoTium (and IoTium will not be responsible for disaster recovery in connection with the foregoing), or (b) outages caused by IoTium’s third party service providers and other causes not reasonably within the control of IoTium, such as upstream provider outages, natural disasters, or a force majeure event.

1.4 Support. Subject to Customer’s timely payment of all applicable Fees, during the period set forth on each Order, IoTium will use commercially reasonable efforts to furnish to Customer the support services (“Support”), if any set forth on each Order. Unless otherwise indicated in an Order, Support is available 24X7 by email (not onsite), excluding US holidays. Access to the IoTium Service is subject to the installation of all updates provided by IoTium to the IoTium Technology (as defined in Section 1.7 ) in a timely manner, and Customer agrees not to prohibit the IoTium Technology from accessing or installing updates which have been made available by IoTium.

1.5 Management Services. In the event that Customer purchases the OT-Edge as a Service, IoTium will also provide certain management services for the iNode Software and Third Party Applications selected by the Customer, as further described in the applicable Order. In such case, IoTium is not responsible for performance failures or other issues that arise out of any updates IoTium deploys to Customer in connection with the OT-Edge as a Service. Regardless of Customer’s use of the OT-Edge as a Service to deploy any Third Party Applications, Customer is solely responsible for the selection of any Third Party Applications and all consequences resulting thereof.

1.6 Professional Services. Subject to Customer%26%2339;s timely payment of applicable Professional Service Fees, IoTium will use commercially reasonable efforts to provide to Cu