https://soti.net/media/upucps05/2024-04-24-soti-one-general-software-terms-of-use.pdf

English
PLEASE READ THE FOLLOWING SOFTWARE LICENSE AGREEMENT (”AGREEMENT”) CAREFULLY BEFORE INSTALLING, COPYING,
DOWNLOADING OR USING THE SOFTWARE OR SOFTWARE UPDATE. THIS AGREEMENT GOVERNS THE PURCHASE, USE, UPDATE
AND RENEWAL OF USE OF SOTI SOFTWARE. BY CLICKING “ACCEPT” AND BY INSTALLING, COPYING, DOWNLOADING OR USING THE
SOFTWARE OR SOFTWARE UPDATE, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT AS WELL AS SOTI’S TERMS OF USE AND PRIVACY NOTICE PROVIDED FOR ON THE SOTI WEBSITE. IF YOU ARE ENTERING
INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO
BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT INSTALL OR USE
THE SOFTWARE AND PROMPTLY EXIT THE SETUP SOFTWARE AND RETURN ALL ACCOMPANYING ITEMS (INCLUDING ALL FORMS
OF DOCUMENTATION) TO THE ORIGINAL PLACE OF ORIGIN.
1. DEFINITIONS
“Affiliates” means any person, corporation, partnership, trust, or other entity, existing or which has yet to exist, that, directly or indirectly,
legally or beneficially, owns, is/will be owned by, or is/will be under common ownership with the subject entity or the subject entity’s
ultimate parent. For purposes of the foregoing, “own”, “owned”, or “ownership” means holding ownership of, or the right to vote, fifty
percent (50%) or more of the voting stock or ownership interest entitled to elect a board of directors or a comparable managing authority.
“Device” means any computing device/instrument that is supported by the Software.
“Documentation” means all user guides, specifications, manuals, and reference materials provided with the Software and/or online, as
such may be updated by SOTI from time to time.
“Licensee” means the end user or the entity, who agrees to the terms and conditions of this Agreement and to whom this license is granted.
“You” and “Your” will be understood as the Licensee interchangeably as required in the wording of the Agreement for comprehension
purposes.
“Licensee Data” means all electronic data or information submitted by Licensee through the Software and shall include, but not be
limited to, Licensee personal identifying information under the control of the Licensee. For purposes of clarity, Licensee Data excludes
any electronic data or information submitted outside of the direct control of Licensee and any such data and information that is not
otherwise available to the open public.
“Order” means the signed order form ordering the Software entered into by or on behalf of the Licensee and SOTI.
“Software” means any of SOTI’s proprietary software programs or web-based software application service, including associated offline
components, together with modifications, updates and new versions as provided by SOTI that may be licensed as described in an
Order.
"Use" means to use, execute, run, display, store, copy, network or host the Software.
2. PROPRIETARY RIGHTS
The Software (including any enhancements or updates), any third party software, content, components, designs, all related
Documentation, Software development kits, application program interfaces, and any copies thereof are licensed, not sold, to the
Licensee by SOTI for use only under the terms of this Agreement. SOTI, its Affiliates and/or SOTI’s licensors retain ownership of the
SOTI Software and reserve all rights not expressly granted to the Licensee.
The Software, including but not limited to the source code, its components, Documentation, design and structure, any copies thereof
is the proprietary property of SOTI or its suppliers and is protected by copyright laws and international copyright treaty provisions as
well as other applicable intellectual property laws and treaties. All title and copyrights in and to the Software, or any copy, modification
or merged portion of the Software shall at all times remain with SOTI. Licensee acknowledges and agrees that SOTI shall be the owner
of any enhancements, updates, upgrades, new versions, or new releases of the Software or derivatives thereof that are developed by
SOTI during the term of this Agreement and thereafter. Licensee expressly acknowledges and agrees that SOTI shall be the sole owner
of any newly-developed, revised, or modified source code related in any way to the Software or SOTI’s general business, regardless of
whether developed, revised, or modified in response to Licensee’s requests, suggestions, or ideas, even if performed as part of
professional services paid for by Licensee.
Licensee hereby grants SOTI a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate
into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, relating to the
operation of the Software (the “Feedback”), provided that (i) the Confidential Information of Licensee, as defined herein, shall not be
considered “Feedback” hereunder, and (ii) all Feedback is provided to SOTI “AS IS” and without warranty of any kind, express or implied,
and under no circumstances shall Licensee have any liability whatsoever to SOTI or any third party with respect to the Feedback or the
usage thereof.
3. GRANT OF LICENSE
3.1 SOTI Duty
Upon Order acceptance and subject to the terms of this Agreement, SOTI grants the Licensee a non-transferable, nonexclusive right
for:
a) Licensee and/or its Affiliates to install, access and Use the Software on the number of Devices Licensee has purchased licenses for.
This is not a concurrent Use license for Devices. Each license is assigned to an enrolled Device. A license can only be reassigned
when a Device is disenrolled; and
b) copy and use one (1) copy of the Software solely for backup, disaster recovery or archival purposes provided the Licensee
reproduces in such copies any copyright, trademark or other proprietary markings and notices contained in the Software and/or
Documentation.
3.2 Licensee Duty
The Licensee shall (i) be responsible for compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity
and legality of Licensee Data and of the means by which Licensee acquired Licensee Data; (iii) use commercially reasonable efforts to
prevent unauthorized access or Use of the Software, and notify SOTI promptly of any such unauthorized access or Use; (iv) Use the
Software only in accordance with the information provided to Licensee, content made available on the SOTI website, and applicable
laws and government regulations; and (v) shall be responsible for the security and privacy of any and all Software passwords, settings,
and user data. Features of the Software may not be available in all languages or regions, some features may vary by region, and some
may be restricted or unavailable from your service provider. A Wi-Fi or cellular data connection is required for some features of the
Software. Licensee acknowledges that many features, built-in apps, and services of the Software transmit data and could impact charges
to Licensee’s data plan, and that Licensee is responsible for any such charges.
3.3 Evaluation
If the Software is offered to the Licensee for evaluation purposes and provided on a trial use basis the General Trail License Terms of
Use shall apply, which is incorporated by reference into this Agreement and may be viewed at https://soti.net/media/2234/sotisoftware-trial-terms-of-use.pdf . Licensee is permitted to use the Software only for internal demonstration, test or evaluation purposes
in a non-production environment, and unless agreed to in writing between both parties as otherwise, for period of no more than thirty
(30) days from delivery, following which the Software may automatically disable itself. Licensee acknowledges that SOTI is not obligated
to permit further use of the Software past the expiration date.
4. RIGHTS OF ACCESS
Licensee may access the Software but has no right to receive a copy of the object code or source code of the Software. Licensee must
have internet connection, hardware and software that is compatible with the Software as specified in the Documentation. As SOTI
regularly updates and upgrades the Software it may be the case that Licensee may need to upgrade equipment in order to make efficient
use of the Software.
5. FEES AND PAYMENT
5.1 Payment
Unless otherwise documented and agreed to in writing, the Licensee shall provide SOTI or its respective authorized representative payment
of all fees within thirty (30) days of the date of invoice in an acceptable form such as, but not limited to, bank transfer, credit card, or
company cheque. Such payments shall be made in advance in accordance with the billing frequency stated in the applicable Order.
It is the Licensee’s responsibility to ensure and maintain that all information for accounting, billing, and technical purposes is current
and accurate for services to be offered to the Licensee.
5.2 Suspension of Service and Acceleration
Unless otherwise documented and agreed to in writing, if any amount owing, not subject to a good faith dispute, by Licensee under
this or any other agreement for SOTI’s Software is thirty (30) or more days overdue, SOTI may, without limiting SOTI’s other rights and
remedies, accelerate Licensee’s unpaid fee obligations under such agreements so that all such obligations become immediately due
and payable, impose a penalty fee equal to the lower of two per cent (2%) per month or the highest rate then permitted by law and
suspend SOTI’s Service to Licensee until such amounts are paid in full.
5.3 Taxes
Licensee is responsible for paying all taxes associated with purchases hereunder. If SOTI has the legal obligation to pay or collect taxes
for which the Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless
Licensee provides SOTI with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. MANDATORY ACTIVATION
Access activation associates the use of the Software for a specific Licensee installation. During said access activation, the Software will
send information about itself and the installation to SOTI and/or its suppliers. The information transferred is specific to the Software
and the specific Licensee installation. Information includes the product version, registration code, installation ID, and the number of
Devices registered in the system. BY USING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION.
In addition to the initial access activation, the Software will periodically and autonomously send the same information stated above to
verify the current activation status of the Software. This is to automatically reflect changes to the license for the given installation.
7. RESTRICTIONS
Except as and only to the extent expressly permitted in this Agreement and by applicable law, the Licensee:
(a) may not rent, lease, lend, sell, redistribute, or sublicense the Software;
(b) may not permit any third party to access the Software or associated services except as permitted herein or in an Order,
(c) may not decompile, reverse engineer, adapt, translate, disassemble, modify, or create derivative works of the Software
or any part thereof;
(d) may Use the Software solely for internal use with the Licensee’s ordinary business processes, only in accordance with all
applicable laws and regulations, and in a manner consistent with this Agreement;
(e) may not copy, frame or mirror any part or content of the Software, other than copying or framing on Licensee’s
own intranets or otherwise for Licensee’s own internal business purposes;
(f) may not apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason
or purpose, the source code or source listings for the Software or any algorithm, process, procedure, trade secret
information contained in the Software or any associated services;
(g) may not Use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store
or transmit material in violation of third-party privacy rights; or
(h) may not interfere with or disrupt the integrity or performance of the Software, associated services or third-party data
contained therein.
(i) may not Use the Software to perform acts that would represent or be associated with any intellectual property right
violation, including, but not limited to the infringement or misappropriation of copyrights, trademarks, service marks,
trade secrets, software piracy, and patents held by individuals, corporations or other entities.
(j) may not exceed service limitations (including SMS messaging and data storage). SOTI is not responsible for any fees
charged to recipients of any SMS messages sent from the Software or associatedservices.
(k) may not access the Software in registration to (a) build a competitive product or service, or (b) copy any features, functions
or graphics of the Software.
If you do any of the foregoing, your rights under this Agreement will automatically terminate. Such termination shall be in addition and
not in lieu of any criminal, civil or other remedies available to SOTI and/or its suppliers.
Malware: Licensee represents, warrants and covenants that Licensee will not cause or knowingly allow harmful software to be stored
on, transmitted, or used with the Software, including but not limited to, the generation or dissemination of computer viruses, Trojan
horses, time bombs, denial of service attacks, key logging and other monitoring software, worms, logic bombs, or other code or
programs whose effect is to negatively impact the operation or performance of the Software or the safety, security, or privacy of users
or owners of the Software, or to negatively impact the operation or performance of the wireless networks with which the Software may
interact (“Networks”) or to permit unauthorized use of or access to such Networks. Licensee may not knowingly use Software in
any way that could cause harm to the Software or the Networks or impair their use by others. Licensee may not use Software to attempt
unauthorized access to any service, system, data, account, or Network.
8. UPGRADES AND UPDATES
SOTI may, at any time, extend, enhance, or otherwise modify the Software by way of a version upgrade or update. If SOTI makes any
available upgrades or updates, such upgrades or updates will be governed by this Agreement (unless a separate license is provided
with the upgrades or updates, in which case the terms of that license shall govern the upgrades or updates). SOTI will use its commercially
reasonable effort to notify Licensee of, or announce, any upgrades or updates (for clarity, such notification or announcement includes,
without limitation, a notice posted at www.soti.net or the equivalent thereof). Where an upgrade or update is made available, such
upgrades or updates may have APIs, features, services and/or functionality that are different from those found in the software licensed
under this Agreement. Upgrades or updates may not be pushed to any Devices without approval from Licensee.
9. USE OF DATA
9.1 Diagnostic and Usage Data
The Software may collect diagnostic and usage data. Licensee agrees that SOTI, its Affiliates and agents may collect, maintain, process
and use diagnostic, technical, usage and related information in the form of metadata, including but not limited to technical information
and identifiers about the Licensee Device, system and application software, and peripherals, that is gathered periodically to facilitate the
provision of Software, and or associated service updates, product support and other services to the Licensee (if any) related to the
Software, and to verify compliance with the terms of this Agreement. SOTI may use this information, so long as it is collected in a form
that does not personally identify the Licensee or Licensee end users, to provide and improve SOTI’s products and services. Opt-out
rights, if any, are described in the Documentation.
To enable SOTI’s partners and third party providers to improve their software, hardware and services designed for use with SOTI
products, SOTI may also provide any such partner or third party provider with a subset of diagnostic information that is relevant to that
partner’s or provider’s software, hardware and/or services, as long as the diagnostic and usage information is collected in an aggregated
form or in a form that does not personally identify the Licensee or Licensee end user.
Some features in the Software may enable Licensee the collection of data from end users that access or use the Software. If end users use
these features to enable data collection through Licensee applications, Licensee must comply with applicable law, including obtaining
any required end user consent, and maintain a prominent privacy policy that accurately informs end users about how Licensee uses,
collects, and shares end user data.
9.2 Location Data
SOTI, its Affiliates, partners and licensees may provide certain services through the Licensee Device that relies upon location information.
To provide and improve these services, where available, and on the basis that Devices are GPS capable, SOTI, its partners and licensees
may transmit, collect, maintain, process and use Licensee location data, including the real-time geographic location of Licensee’s Device,
and location search queries. The location data and queries collected by SOTI are collected in an aggregated form or a form that does
not personally identify the Licensee and may be used by SOTI, its partners and licensees to provide and improve location-based products
and services. By using any location-based services or application with the Software on Licensee’s Device, the Licensee agrees and
consents to SOTI's, its Affiliates, its partners' and licensees' transmission, collection, maintenance, processing and use of Licensee’s
location data and queries to provide and improve such location-based services or application of the Software, and other SOTI products
and services. Licensee may withdraw this consent at any time by disabling the location-based features in Licensee’s Device. By disabling
the location-based features, these features will be unavailable. Not using these location features will not impact the non-location-based
functionality of Licensee’s Device. When using third party applications or services on the Licensee Devices that use or provide location
data, Licensee is subject to and should review such third party's terms and privacy policy on use of location data by such third party
applications or services.
9.3 Licensee Systems and Licensee Data
9.3.1 Licensee Data shall at all times remain the property of the Licensee or its licensors.
9.3.2 Except to the extent SOTI has direct obligations under data protection laws, the Licensee acknowledges that SOTI
has no control over any Licensee Data hosted as part of the provision of the Software and may not actively monitor
or have access to the content of the Licensee Data. The Licensee shall ensure (and is exclusively responsible for) the
accuracy, quality, integrity and legality of the Licensee Data and that its use (including use in connection with the
Software) complies with all applicable laws and intellectual property rights.
9.3.3 If SOTI becomes aware of any allegation that any Licensee Data may not comply with the terms of this Agreement
SOTI shall have the right to permanently delete or otherwise remove or suspend access to any Licensee Data which
is suspected of being in breach of any of the foregoing from the Software and/or disclose Licensee Data to law
enforcement authorities (in each case without the need to consult the Licensee). Where reasonably practicable and
lawful SOTI shall notify the Licensee before taking such action.
9.3.4 Except as otherwise expressly agreed to in this Agreement, SOTI shall not be obliged to provide Licensee with any
assistance extracting, transferring or recovering any data whether during or after the Software service period. The
Licensee acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Licensee
Data, including as necessary to ensure the continuation of the Licensee’s businesses. The Licensee shall, without
limitation, ensure that it backs up (or procures the back up of) all Licensee Data regularly (in accordance with its
needs) and extracts it from each Software installment prior to the termination or expiry of this Agreement or the
cessation or suspension of the Software.
9.3.5 SOTI routinely undertakes regular backups of the Software (which may include Licensee Data) for its own business
continuity purposes. The Licensee acknowledges that such steps do not in any way make SOTI responsible for
ensuring the Licensee Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted
by applicable law, SOTI shall not be responsible (under any legal theory, including in negligence) for any loss of
availability of, or corruption or damage to, any Licensee Data.
9.3.6 Without limiting the above, SOTI shall maintain appropriate administrative, physical, and technical safeguards for
protection of the security, confidentiality and integrity of Licensee Data and Licensee end user data. Specifically, SOTI
shall:
a) Notify Licensee promptly after SOTI learns of any potential, actual or suspected misappropriation or unauthorized
access to, or disclosure or use of, Licensee Data, end user data, or other compromise of the security, confidentiality
or integrity of Licensee Data and/or end user data (collectively, “Security Breaches”). SOTI will promptly investigate
each potential, actual, or suspected Security Breach and assist Licensee in connection with any investigation that
Licensee may reasonably desire to conduct with respect to such Security Breach. SOTI will take all commercially
reasonable steps requested by Licensee to limit, stop, or otherwise remedy any potential, actual, or suspected
Security Breach.
b) Limit access to Licensee Data and end user data solely to personnel of SOTI who have a need of such access in
connection with the delivery and performance of the services under this Agreement, and shall not sell, disclose,
release or otherwise make available Licensee Data to any other party. The disclosure of Licensee Data shall be
limited to the specific information necessary for such personnel to deliver and perform the services under this
Agreement. SOTI shall inform its personnel with access to Licensee Data of the requirements set forth herein and
shall ensure that such personnel are bound by and comply with such requirements.
SOTI will not be in violation of its obligations under the immediately preceding paragraph when Licensee Data
and/or end user data is disclosed by SOTI to the extent legally required by a valid order of a court of competent
jurisdiction or administrative agency, or a validly enforceable subpoena; provided that (i) SOTI provides prompt
written notice to Licensee of any such request or requirement with reasonably sufficient details regarding the
request or requirement and the Licensee Data and/or end user data that SOTI is contemplating disclosing so that
Licensee may seek a protective order or other appropriate remedy and (ii) SOTI reasonably cooperates with
Licensee in their efforts to seek such order or remedy.
c) Use Licensee Data and end user data only for the specific purpose for which it was provided to SOTI or as
otherwise authorized by Licensee in writing and shall only reproduce Licensee Data and/or end user data to the
extent necessary for these purposes.
d) Promptly upon the earlier of the completion of services under this Agreement, upon the expiry of Software licenses,
or at any time upon the written request of Licensee, all Licensee Data and/or end user data in any form, in SOTI’s
possession or control shall be (i) destroyed in a manner that prevents its recovery or restoration or, (ii) if so directed
by Licensee, returned to Licensee in a secure manner without SOTI retaining any actual or recoverable copies
thereof, in both instances without charge to Licensee.
e) Provide Licensee with information as may be reasonably requested by Licensee from time to time with regard to
SOTI’s compliance with its obligations herein, including, if available and not subject to the attorney-client, work
product or any similar privilege, the results of any audits or tests performed on SOTI’s information security
program or on any components thereof.
f) Cooperate with Licensee and take such action as it reasonably requires enabling Licensee to comply with its
obligations under applicable Canadian, EU, US and foreign data protection and privacy laws as they relate to the
Licensee Data and end user data.
9.4 Limitations on Use.
Licensee’s optimal use of the Software may be subject to limitations based on the nature of the environment, which is subject to change
from time to time. Such factors, including but not limited to, the number of devices on a particular instance, quantity of Software rules,
frequency and/or retention of Licensee Data storage. Any such limitations are specified in the Documentation.
Licensee agrees to use the Software only for purposes permitted by this Agreement, and only to the extent permitted by any applicable
law, regulation, or generally accepted practice in the applicable jurisdiction. Each Device is allocated a defined storage capacity as
described in the Documentation. Additional storage is available for purchase on a subscription basis. Licensee can change their storage
subscription by upgrading or downgrading storage by contacting SOTI.
The applicable fee for an upgraded storage capacity will take effect immediately; any downgrades to storage capacity must be provided
for in writing with a minimum of thirty (30) days’ notice prior to the Licensee’s next billing cycle.
Exceeding any applicable or reasonable limitation of bandwidth, or storage capacity (for example, backup or email account space) is
prohibited and may prevent Licensee from backing up to SOTI’s systems or adding documents. If Licensee’s use of the Software or other
behavior intentionally or unintentionally threatens SOTI’s ability to provide the Software, associated services or other systems, SOTI shall
be entitled to take all reasonable steps to protect the Software, associated services and SOTI’s systems, which may include suspension
of Licensee’s access to the Software and services. Repeated violations of the limitations may result in termination of Licensee’s account.
Licensee agrees that it will not use any component, function or other facility of SOTI’s systems to create, receive, maintain or transmit
any protected health information or use SOTI’s Cloud in any manner that would make SOTI (or any SOTI Affiliate) Licensee’s or any third
party’s business associate.
SMS messaging is not intended for broadcast purposes, and such features may be used solely for emergency purposes. Additional
charges may apply.
9.5 Privacy
At all times Licensee and end user information will be treated in accordance with SOTI’s Privacy Notice, which is incorporated by
reference into this Agreement and may be viewed at http://www.soti.net/about/legal/policies/privacy-notice/ . In the event that any
term of SOTI’s Privacy Notice conflicts with this Agreement, this Agreement will control with respect to that term. Notwithstanding
SOTI’s Privacy Notice, in collecting, processing, recording, storing, registering, disclosing, transferring and using data (including any
personal data) and in maintaining records, SOTI shall comply fully with any applicable privacy protection regulations, data protection
regulations and other applicable laws, and shall only do so, directly or indirectly, if required to perform is obligations under this
Agreement, and in accordance with applicable Canadian, EU, U.S. federal and state and international privacy and data protection laws
and regulations.
9.6 Content
Any and all content stored or accessed with the Software is the property of the applicable content owner and is protected by applicable
law. Licensee is not granted any rights by SOTI to such content. To the extent that the Software may be used to reproduce, modify,
publish or distribute materials, such use is licensed to Licensee only for materials Licensee is authorized or legally permitted to
reproduce, modify, publish or distribute. If the Licensee is uncertain about the right to copy, modify, publish or distribute any material,
the Licensee should contact a legal advisor.
9.7 Login
SOTI leverages cookies to save Licensee information for Software registration and login. SOTI will at all times treat any information
collected as cookies in accordance with its Cookie Policy that may be viewed at https://soti.net/about/legal/policies/cookie-policy/ .
10. Confidentiality
In the course of performing this Agreement, either party (the “Disclosing Party”) may find it necessary to disclose to the other party
(the “Receiving Party”) or Receiving Party may otherwise obtain from the Disclosing Party, certain information which is confidential
information. “Confidential Information” means all information, that is identified orally or in writing as being confidential or information
that is obviously confidential by its nature or is used in a context where the Receiving Party should have reasonably understood that
the information should be treated as confidential, whether or not the word “confidential” is used. Confidential Information includes, but
is not limited to, technical, financial or commercial information, trade secrets, know- how, patents or patent pending filings, business
plans, projections, marketing plans, client lists, customer lists and other information regarding customers or customer relationships,
product plans and costs, methods of operation, schematics, studies, proposal strategy, specifications, drawings, photographs, models,
mock-ups, designs, test results, research, process and fabrication information, programming code, computer software, software tools
and descriptions of functions and features of software, source code, computer hardware designs and all other related materials that
contain or reflect in whole or in part any such information or materials. Confidential Information does not include information (i) which
was known to the Recipient prior to disclosure by the Discloser, and for which the Recipient can provide evidence that it was in its lawful
possession free of any obligations to keep it confidential; (ii) which is in the public domain at the time of disclosure or becomes part of
the public domain after disclosure otherwise than through a breach of this Agreement; (iii) which is independently developed by the
Receiving Party; (iv) which is approved for release by prior written consent of the Disclosing Party; (v) which is received by the Receiving
Party from a third party and there was no knowledge or reason to know on the part of the Receiving Party that the third party had
obtained the information from the Disclosing Party under obligation of confidentiality; and (vi) which is required to be disclosed by
governmental or judicial order or applicable law. The Receiving Party shall use Confidential Information received solely for the purpose
of performing its obligations under this Agreement. The Receiving Party may disclose Confidential Information on a strictly “need to
know” basis to its officers, contractors, or employees if each of such officer, contractor, or employee is also bound by a confidentiality
agreement to protect the Confidential Information under conditions substantially similar as indicated in this Agreement, but in no event
less than reasonable care. In the event the Receiving Party becomes legally compelled to disclose any Confidential Information of the
Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a
protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. In the event that a protective
order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving
Party will furnish only that Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded to the Confidential Information so disclosed.
11. WARRANTY
11.1 The Software is either proprietary to SOTI or properly licensed by SOTI from third party providers, does not and will not infringe,
misappropriate, or violate any patent, copyright, trademark, trade secret, or other proprietary right, and will be free of any liens,
encumbrances or other claims.
11.2 The Software (including any software or media used to provide or access any Software or associated service) does not contain
any virus or Disabling Device. As used herein, “Disabling Device” shall mean any timer, clock, counter, time lock, time bomb, other
limiting code, design, instruction or routine which is designed or intended to do any of the following, either automatically or
without the intentional action of Licensee or end user: (i) erase data or other programming, or (ii) damage, destroy, disable,
suspend or otherwise alter the operation of any other software (or components thereof), or (iii) cause any other software (or
components thereof) to become inoperable or otherwise incapable of being used in the full manner for which the Software (or
components thereof) was designed or created.
11.3 SOTI will not access any Licensee Data or end user data without Licensee’s knowledge and written approval and in
accordance with this Agreement.
12. DISCLAIMER
Except as specifically stated in this Agreement, the Software is provided and licensed "AS IS" without warranty of any kind, either express
or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. SOTI warrants
that the Software will substantially perform the functions or generally conform to the Documentation under normal use and normal
circumstances for a period of ninety (90) days following the date on which the Licensee begins using the Software after downloading
and inputting the license keys provided by SOTI.
If the Software does not substantially perform the functions or generally conform to the Documentation under normal use and normal
circumstances, the Licensee may within thirty (30) days of delivery write to SOTI to report a significant defect. If, in SOTI’s discretion, SOTI
is unable to correct the defect within ninety (90) days of receiving your report, the Licensee may terminate this Agreement by returning
the Software with the original receipt and the Licensee’s will be refunded.
SOTI does not warrant that the functions contained in, or services performed or provided by, the Software will meet your requirements
or that the operation of the Software will be uninterrupted, entirely error free, continue to be made available, compatible or work with
any third party software, applications, or third party services or any other SOTI products or services, appear precisely as described in
the Documentation, or that defects in the Software will be corrected. SOTI does not guarantee the performance of the Software for use
under every possible configuration, including but not limited to failure of the Software due to third party software or the Licensee’s
computer hardware or network.
SOTI will not warrant any Software: (i) that has not been used in accordance with this Agreement and the Documentation; (ii) that has
been used for a purpose other than for the purpose for which it is intended; (iii) used with other software or services or on equipment
with which it is incompatible; (iv) that has been altered in any way by Licensee or any third party not under the control of SOTI, or their
employees or agents; (v) that is used in an operating environment other than as specified in the Documentation; (vi) where such
nonconformity in the Software is due to abuse, neglect, or other improper operation or Use by the Licensee; or (vii) where reported
errors or nonconformities cannot be reproduced by SOTI, working, in good faith, with Licensee’s assistance.
13. LIMITATION OF LIABILITY
13.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL SOTI OR ITS SUPPLIERS BE LIABLE FOR
DAMAGES OF THIRD PARTIES CLAIMED AGAINST THE LICENSEE OR FOR PERSONAL INJURY, DEATH, OR ANY INCIDENTAL, SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE
OR FAILURE TO REALIZE EXPECTED SAVINGS, LOSS AND/OR HARM OF DATA, DATA LEAKAGE, BUSINESS INTERRUPTION OR ANY
OTHER COMMERCIAL DAMAGES OR LOSSES INCLUDING COSTS ASSOCIATED WITH DATA USAGE OVER COMMUNICATION
NETWORKS (E.G. CELLULAR), ARISING OUT OF OR RELATED TO LICENSEES USE OR INABILITY TO USE THE SOFTWARE, HOWEVER
CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SOTI HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. NEITHER WILL SOTI AND ITS SUPPLIERS BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF,
OR IN CONNECTION WITH, ANY ALLEGED OR ACTUAL IMPROPER USE OR INSTALLATION OF THE SOFTWARE BY LICENSEE, ALLEGED OR
ACTUAL NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT, FRAUD OR FAILURE OF THE SOFTWARE DUE TO THIRD PARTIES
SOFTWARE OR THE LICENSEE’S COMPUTER NETWORK. IN NO EVENT SHALL SOTI’S TOTAL LIABILITY FOR ALL DAMAGES (OTHER
THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSOINAL INJURY) EXCEED THE AMOUNT ACTUALLY PAID BY
LICENSEE FOR THE SOFTWARE WITHIN TWELVE (12) MONTHS PRECEDING THE CLAIM (“PERIOD”) LESS THE AMOUNT CONSUMED FOR
SUPPORT AND MAINTENANCE IN THE PERIOD PRECEDING THE CLAIM.
13.2 SOTI’s total liability in respect of each individual free or trial service (and any and all support services provided in connection with the same)
(howsoever arising under or in connection with this Agreement) shall not exceed an amount of $50.00 USD.
14. INDEMNIFICATION
14.1 Either party shall hold harmless the other party including its staff, officers, directors, partners and controlling persons from and
against any and all third party claims, arising out of or relating to the indemnifying party’s: (i) negligent acts or omissions, willful
misconduct or fraud in connection with this Agreement,;
(ii) violation of any statute, law, ordinance or regulation, or (ii) infringement of any patent, copyright, trademark, trade secret or other
intellectual property or other rights of a third party.
14.2 Licensee shall indemnify, keep indemnified and hold harmless SOTI (on SOTI’s own behalf on behalf of each of SOTI’s Affiliates)
from and against any losses, claims, damages, liability, data protection losses, costs (including legal and other professional fees) and
expenses incurred by it (or any of its Affiliates) as a result of the Licensee’s breach of this Agreement.
15. TERM AND TERMINATION
15.1 Term of Agreement
This Agreement commences on the date the Licensee accepts the terms of this Agreement by downloading the Software and continues
until all perpetual or subscription licenses granted in accordance with this Agreement have expired or been terminated. If Licensee
uses the Software for a free trial period and does not purchase a license before the end of that period, this Agreement will terminate at
the end of the free trial period.
15.2 Term of Purchased Subscription Licenses
Subscription licenses purchased by Licensee commence on the start date specified in the applicable Order and continue for the
subscription term specified therein. Except as otherwise specified in the applicable Order, all subscriptions shall automatically renew for
additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice
of non-renewal at least thirty (30) days before the end of the relevant subscription term.
15.3 Termination
Without prejudice to any other rights, SOTI may terminate this Agreement without notice from SOTI in the event the Licensee fails to
comply with the rights and obligations of this Agreement and the rights and obligations of any associated SOTI products and/or
services. In the event of such termination, the Licensee must return or destroy all copies and components of the Software with written
confirmation.
15.4 Termination for Cause
Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if
such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or
any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Licensee agrees that SOTI may, at its sole discretion, at any time discontinue providing or limit access to the services, Software, website,
any areas of the website or content provided on or through the website. SOTI will terminate or limit Licensee’s access to or use of the
services, Software or website if, under appropriate circumstances, Licensee is determined to be a repeat infringer of third party copyright
rights. Licensee agrees that SOTI shall not be liable to Licensee or any third-party for any termination or limitation of Licensee’s access
to or use of the services, Software, website, or any content on or through the website.
15.5 Refund or Payment upon Termination
Upon any termination for cause by Licensee, SOTI or the respective authorized representative shall refund Licensee any prepaid fees
covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by SOTI,
Licensee shall pay any unpaid fees covering the remainder of the term after the effective date of termination. In no event shall any
termination relieve Licensee of the obligation to pay any fees payable to SOTI or its respective authorized representative for the period
prior to the effective date of termination.
16. MISCELLANEOUS
16.1. High Risk Activity
THE SOFTWARE MUST NOT BE USED FOR ANY HIGH RISK OR STRICT LIABILITY ACTIVITY. REAL TIME LOCATION DATA ACCESSED
VIA THE SOFTWARE MAY BE INACCURATE OR INCOMPLETE. LICENSEE’S USE OF THIS SOFTWARE IS AT ITS SOLE RISK. Licensee shall
not use the software for, including, without limitation, nuclear energy equipment, air or space traffic control, the operation of critical
communication system, public transportation control, life support devices, weapon systems or other ultra-hazardous uses where failure
of the Software to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses.
Should the Licensee engage or attempt to engage in high risk activity, Licensee shall (i) assume and accept sole responsibility for all risks
arising out of, associated with or related to engaging in high risk activity; (ii) be solely responsible for any injury, loss or damage that
Licensee sustains while engaged in high risk activity; (iii) hold harmless and indemnify SOTI from any and all liability for any damage to
property of, or personal injury to, any third party resulting from Licensee’s engagement in high risk activity; and (iv) hold harmless,
indemnify and release SOTI, its Affiliates, subsidiaries, officers, directors, agents, employees and representatives from liability for any and
all claims, demands, actions and costs which may arise as a result of Licensee’s engagement in high risk activity. For added clarity, where
the Licensee utilizes the Software in the performance of high risk activity, the abovementioned shall also apply in the event of a failure or
deficiency in the functionality or operation of the Software.
16.2 Force Majeure
Except for payment obligations, neither party shall be liable for any delays or other non-performance resulting from circumstances or
causes beyond its reasonable control that are not due to the negligence or misconduct of the party claiming relief under this section,
including, without limitation, fire or other casualty, act of God, war, terrorism, or other violence, any law, order or requirement of any
governmental agency or authority or other causes beyond the reasonable control of such party, provided that such party has informed
the other party of such force majeure event promptly upon the occurrence thereof (including a reasonable estimate of the additional
time required for performance to the extent determinable) and such party uses reasonable commercial efforts to effect the required
performance as soon as reasonablypracticable.
16.3 Applicable Law
a) North, Central and South America. If the Licensee lives in (or, if a business, the principal place of business is in) North, Central
or South America, you are contracting with SOTI Inc., an Ontario, Canada registered corporation located at 1950 Meadowvale Boulevard,
Mississauga, Ontario, Canada, L5N 8L9. This Agreement shall be governed by and construed under the laws of the Province of Ontario,
Canada. Each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and
irrevocably consents to the service of process by mail or in any manner permitted by applicable law and consents to the jurisdiction of
the courts of the Province of Ontario, Canada. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or
judicial proceeding arising or relating to this Agreement.
b) United Kingdom. If the Licensee lives in (or, if a business, the principal place of business is in) the United Kingdom or Russia
you are contracting with SOTI Limited, an England and Wales registered corporation located at 5-7 Drury Lane, Solihull, United
Kingdom, B91 3BB. This Agreement will be governed by and construed in accordance with English Law and the courts of England will
have exclusive jurisdiction to settle any dispute which arises out of or in connection with this Agreement and the Parties hereby agree to
submit to the jurisdiction of the courts of England. The Parties to this Agreement do not intend that any of its terms will be enforceable
by virtue of the Contract (Rights of Third Parties) Act (UK) 1999 by any person not a Party toit.
c) India and Sri Lanka. If the Licensee lives in (or, if a business, the principal place of business is in) India or Sri Lanka you are
contracting with SOTI India Private Limited., a corporation organized under the laws of India located at 2nd Floor, Bestech Business
Tower, Sohna Road, Sector 48, Gurugram, Haryana 122004 India. Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity, or termination, will be referred to and finally resolved by arbitration in Singapore
in accordance with the Arbitration Rules of the Singapore International Arbitration Center (SIAC), which rules are deemed to be
incorporated by reference into this section. The Tribunal will consist of one arbitrator to be appointed by the President of SIAC. The
language of arbitration will be English. The decision of the arbitrator will be final, binding, and incontestable, and it may be used as a
basis for judgment in any country or region.
d) Africa, Asia, Europe, Middle East, or South Pacific. If the Licensee lives in (or, if a business, the principal place of business is
in) Africa, Asia (except for India or Sri Lanka), Europe (except for the United Kingdom or Russia), Middle East, or South Pacific you are
contracting with SOTI Ireland Limited., a corporation organized under the laws of Ireland located at First Floor Island House, Cathedral
Square, Galway City, Galway. This Agreement shall be governed by and construed under the laws of Ireland. Each Party irrevocably
waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to the service
of process by mail or in any manner permitted by applicable law and consents to the jurisdiction of the courts of Dublin, Ireland.
16.4 Complete Agreement; Amendments & Severability
This Agreement constitutes the entire agreement between the Licensee and SOTI relating to the use of the Software and supersedes
all prior or concurrent understanding regarding such subject matter. This Agreement may not be amended or modified unless in
writing, as mutually agreed and signed, by both SOTI and the Licensee. If any provision of this Agreement is found to be invalid or
unenforceable to any extent, then the invalid portion shall be deemed conformed to the minimum requirements of law to the extent
possible. In addition, all other provisions of this Agreement shall not be affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
16.5 Compliance
Each party shall comply with Corruption of Foreign Public Officials Act, applicable Bribery Laws and all SOTI policies and procedures (if
any) with which each party is required to comply relating to prevention of bribery and corruption as updated from time to time by the
written agreement of the parties.
Any resale and/or delivery of the Software or related services to any country shall not violate any applicable National and International
Law. It is unlawful and a specific violation of this Agreement to deliberately communicate, transmit in any manner, means or medium,
any unsolicited information or material to any individual or groups of individuals (that is: spamming) about SOTI’s product offering or
services. It is also a violation of the Agreement to use such methods to promote the Software. This prohibition specifically includes but
is not limited to unsolicited commercial e-mail.
In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and
regulations. For clarity, Licensee is solely responsible for compliance related to the manner in which it chooses to use the Software.
16.6 Sanctions
Licensee covenants that it shall not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any software,
source code, or technology (including products derived from or based on such technology) received from SOTI under this Agreement
to any other person, entity, or destination prohibited by the laws or regulations of the United Nations, United Kingdom, Canada, and
the United States of America, without obtaining prior authorization from the competent government authorities as required by those
laws and regulations. SOTI shall notify Licensee of any countries, jurisdictions or territories that Licensee may not export, re-export,
transfer, divert, or otherwise dispose of any Software, source code or technology. Licensee's intentional breach of this sanctions
compliance clause shall constitute cause for immediate termination of this Agreement.
16.7 Monitoring Compliance
During the active term of the Software and for seven (7) years thereafter, the Licensee shall maintain full and accurate records regarding
the number of licensed Devices monitored by the Software and shall make such information available to SOTI upon request. The
Licensee shall allow and procure for SOTI (and any representatives of SOTI) access to its premises to inspect use of the Software and
audit (and take copies of) the relevant records of the Licensee in each case to the extent necessary to verify that the Licensee is in
compliance with its obligations under this Agreement.
Unless agreed to as otherwise in writing, the inspection and audit as referred to above shall be undertaken during Licensee’s normal
business hours, subject to reasonable prior notice, and not more than once in any given twelve (12) month period.
16.8 Assignment
This Agreement, including any rights, or obligations under this license, may not be assigned or otherwise transferred by the Licensee
to any other person, corporation or similar entity without the prior written consent of SOTI and any attempt to do so in violation of the
terms hereof shall be null and void.
16.9 No Third Party Beneficiaries
This Agreement is for the benefit of the Licensee and SOTI and does not provide any third party the right to enforce it or to bring an
action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.
16.10 Set Off
Licensee shall pay all sums that it owes to SOTI under this Agreement without any set-off, counterclaim, deduction or withholding of any
kind, save as may be required by law.
16.11 Language
In the event SOTI or another party has provided the Licensee with a translation of this Agreement from the English language to another
language, the Licensee agrees that such translation is provided for convenience only; that the English version of this Agreement governs
the relationship between SOTI and the Licensee; and, if there is any conflict between the English version of this Agreement and the
translated version, the English version shall take precedence. All disputes under this Agreement shall be resolved in the English
language.
16.12 Waiver
Neither the failure nor any delay by any party in exercising any right under this Agreement will operate as a waiver of such right.
16.13 Notice
Any notice or other communication given by a party under this Agreement shall be (i) in writing and in English; and (ii) signed by, or on
behalf of, the party giving it (except for notices sent via email). Notices and other communications intended for SOTI shall be sent to:
SOTI Inc, 1950 Meadowvale Boulevard, Mississauga, Ontario, Canada, L5N 8L9, Attn:
Legal / Contracts
Email: legal@soti.net
Phone: + 1 905 624 9828 or 1 888 624 9828
Fax: + 1 905 624 3242
17. PRODUCT SUPPORT AND MAINTENANCE SERVICES
Software support and maintenance services shall be governed by the most current SOTI Service Level Terms (“Services”) which is
incorporated by reference into this Agreement and made available through the following link http://www.soti.net/mcsla.pdf
Services for on premise perpetual Software must be purchased at a minimum of no less than a period of twelve (12) months, from the
date of activation or from the date of renewal of the Order. SOTI shall perform for Licensee, Services with respect to the Software on
the condition that the Licensee has a valid Order with SOTI.
Services for subscription as a service and cloud versions of the Software are incorporated with purchase.
SOTI has the right to deny access to the Services should the Licensee fail to have active Service. It is understood that SOTI cannot guarantee
the Services if Licensee tampers or modifies the SQL Database unless explicitly communicated and agreed to in writing with SOTI.
Should SOTI be requested to provide professional services to the Licensee beyond SOTI’s standard Services, the resulting professional
services shall be provided to the Licensee undera statementofwork(“SOW”), terms of which are incorporated by reference into this Agreement
and made available through the following http://www.soti.net/policies/professional-services-terms-and-conditions/ , billed at SOTI’s
then-current rates for professional services, and invoiced to the Licensee or its representative, as provided in this Agreement. All
professional services provided at Licensee’s site shall be subject to SOTI’s then-current expense reimbursementpolicies.
18. THIRD PARTY NOTICE
18.1 Portions of the Software may utilize or include third party software and other copyrighted material. Unless indicated as otherwise,
third party software is available for an additional fee and/or is not required or necessary for the use of the Software. Except as explicitly
stated within this Agreement, any third party software or source code is provided “AS IS” or “AS AVAILABLE”, with no warranties or
representations of any kind. Any third party software sublicense will terminate when this Agreement terminates, when the Licensee
terminates, or when the Software is no longer being used by the Licensee. The Licensee shall not decompile, reverse engineer, adapt,
translate, disassemble, modify, or create derivative works of the third party software, which shall be subject to the same restrictions as
those set forth with respect to the Software within this Agreement.
19. LOCATION BASED SERVICES
To the extent that the Software contains location based service functionality, the following terms apply. The Software's location based
services (“LBS”) can be used with Devices that are equipped with a GPS receiver or devices that utilize cellular based location capabilities.
The LBS feature in the Software is powered by Microsoft's Bing Maps technology. The Terms of Use and Privacy Statement for Microsoft’s
Bing Maps technology may be accessed at: http://www.microsoft.com/maps/assets/docs/terms.aspx; https://privacy.microsoft.com/enus/privacystatement . In order to access this third-party system, the product registration code is passed from the Software to the SOTI
and/or its suppliers LBS Server, which in turn requests a non-identifying token from Microsoft’s Bing Maps service on behalf of the end
user.
20. ANTI-VIRUS AND URL FILTERING
To the extent that the Software contains anti-virus and URL filtering functionality, the following terms apply. The Anti-Virus and URL
Filtering feature in the Software is powered by BitDefender. The Terms of Use and Privacy Policy may be
accessed at: https://www.bitdefender.com/site/Main/view/end-user-license-minimum-terms.html ;
https://www.bitdefender.com/site/view/legal-privacy-policy-for-bitdefender-business-solutions.html