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”).
1.1 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.
1.2.1 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: firstname.lastname@example.org. 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's timely payment of applicable Professional Service Fees, IoTium will use commercially reasonable efforts to provide to Customer the professional services (“Professional Services”) if any identified on an Order or in any mutually executed statement of work (“SOW”). IoTium will own all right, title and interest, including all intellectual property rights, in and to any work product developed in the course of the Professional Services. Nothing in this Agreement will be understood to prevent IoTium from developing similar work product for other customers. Customer will provide IoTium with the materials, personnel and access (including, if applicable, remote access) to Customer systems and premises as reasonably requested by IoTium to provide the services.
1.7 Restrictions. Customer will not, directly or indirectly, and will not authorize any person, to the maximum extent permitted by applicable law, to (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of or otherwise attempt to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms or any measures IoTium may use to prevent or restrict access to; (ii) derive the source code or the underlying ideas, algorithms, structure or organization from; (iii) otherwise obtain unauthorized access to; (iv) disrupt, damage, limit, interfere or attempt to interfere with the proper functioning of any software, hardware, or telecommunications equipment; (v) transmit or contain software viruses or any other unlawful, infringing or harmful data, files, programs or code to or from; (vi) directly or indirectly take any action or inaction (including without limitation uploading, downloading, posting, submitting or otherwise distributing or facilitating the distribution), that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (vii) directly or indirectly take any action or inaction that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (viii) take any action or in action that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (ix) impersonate any person or entity, including any employee or representative of IoTium; (x) use, in whole or in part, to build an application or product that is competitive with any IoTium product or service; (xi) translate, adapt, modify, or prepare derivative works of; (xii) write or develop any program, except as expressly permitted herein, based upon; (xiii) rent, loan, lease, distribute, sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (xiv) copy; or (xv) otherwise use except as expressly permitted hereunder, in each case of (i) – (xv), the IoTium Service, the iNode Software, the Development Materials and any documentation associated with the foregoing (including all technology and software constituting or used to provide such service) as applicable (collectively, “IoTium Technology”).
2. FEES; PAYMENT
2.1 Fees. Customer will pay IoTium the non-refundable and non-recoupable fees (“Fees”) of the type, amount and payment schedule set forth in each Order and/or SOW, as applicable, which may include without limitation subscription, activation and other fees for the IoTium Service (“Subscription Fee”), fees for Support, and fees for Professional Services (“Professional Service Fee”). After expiration of the initial term indicated on the Customer’s first Order, should the Customer renew their subscription, IoTium may increase the Fees upon a 60-days’ written notice to Customer.
2.2 Payment Terms. Unless otherwise set forth on the applicable Order or SOW, all Fees are due and payable in United States dollars in the manner set forth in such Order, without deduction or setoff. Interest accrues from the due date at the lesser rate of 1.5% per month or the highest rate allowed by law.
2.3 Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on IoTium’s net income).
3. TERM AND TERMINATION
3.1 Term. This Agreement is effective as of the effective date specified on the applicable Order and expires on the later of the expiration or termination of the last Subscription Term or the completion of any services provided by IoTium under this Agreement.
3.2 Subscription Term. Each subscription will commence on the start date specified in the applicable Order, and end on the end date
specified in such Order (“Initial Subscription Term”). Following the completion of each Initial Subscription Term, such subscription term may renew at the Customer’s option for additional one year periods (each a “Renewal Subscription Term” and collectively with the Initial Subscription Term for such Order the “Subscription Term”). If Customer’s Subscription Term is not renewed, Customer’s access to the IoTium Service specified in the corresponding Order will terminate at the end of the then-current Subscription Term for such Order. IoTium reserves the right to increase Fees for any Renewal Subscription Term by providing at least sixty (60) days’ notice prior to the end of the then-current Subscription Term. Except as explicitly as set forth in the applicable Order, all Subscription Fees are non-refundable and subscriptions may not be canceled prior to the end of the applicable Subscription Term.
3.3 Termination. IoTium may terminate this Agreement by written notice if any of the following occurs: (i) Customer fails to pay within 10 days after written notice of nonpayment any amounts owed to IoTium; (ii) except as set forth in (i), Customer is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (iii) Customer files for or is adjudicated bankrupt or suffers any other analogous event.
3.4 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, access to the IoTium Service will automatically terminate; and (ii) all outstanding payment obligations of Customer become due and payable immediately. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.7 and 3.4 , and 4 through 7 . Upon termination or expiration of a Subscription Term, IoTium will provide commercially reasonable support to assist Customer in unlocking any hardware that was locked by the IoTium Software; provided that Customer contacts IoTium by email at email@example.com within 30 days of termination.
4. CONFIDENTIALITY; OWNERSHIP; DATA
4.1 Definition. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (i) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (ii) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (iii) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between IoTium and Customer, the IoTium Technology is the Confidential Information of IoTium. The terms (but not the existence) of this Agreement is each party’s Confidential Information.
4.2 Use; Maintenance. Neither party will use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party will disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. IoTium may list Customer as a customer in its promotional and marketing materials, including its website.
4.3 Ownership; Data. Except for the limited rights granted in this Agreement: (i) IoTium hereby retains all rights, title and interest, including all intellectual property rights, in and to the IoTium Technology, and (ii) Customer hereby retains all rights, title and interest in the Customer Data. Customer hereby grants to IoTium and its affiliates a worldwide, irrevocable, perpetual, royalty-free license (a) to exploit without restriction all feedback regarding IoTium Technology; (b) to use and log other information derived from Customer’s use of the IoTium Service to improve IoTium’s products and services; and (c) to use all data made available to IoTium by or on behalf of Customer to perform its obligations hereunder. The non-public data transmitted through the IoTium Service by or on behalf of Customer will be deemed “Customer Data.” Customer Data does not include public domain or publicly available data, data independently derived by IoTium, or except as expressly described above, data obtained by IoTium from a third party (e.g. from candidates). Except as expressly agreed, IoTium has no obligation hereunder to obtain any third party data or pay any usage fee therefor. Customer will obtain all permissions or approvals from each applicable data source as may be necessary or required to transmit such data through the IoTium Service and comply with all applicable laws in its performance under this Agreement. In the event Customer chooses to transmit data from the IoTium Service to Customer’s own servers or cloud storage, IoTium will have no liability to Customer for any claims arising out of such data.
5.1 By IoTium. IoTium will (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use of the IoTium Service as authorized in this Agreement constitutes a direct infringement of U.S. copyright or trade secret of any third party, and (ii) pay, subject to the limitations set forth in Section 6 , damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by IoTium; provided that Customer provides IoTium (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by IoTium in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, IoTium may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable IoTium Service; (b) modify the IoTium Service to make it non-infringing; (c) replace the IoTium Service with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable IoTium Service or this Agreement. Notwithstanding the foregoing, IoTium will have no liability to Customer for any claim arising out of or based upon Customer’s failure to use the IoTium Service in accordance with this Agreement, Customer Data, or the use of the IoTium Service or iNode Software in combination with software, products or services not provided by IoTium, including Customer Applications or Third Party Applications, such as claims arising from: (i) product failures, (ii) vulnerabilities to intrusion or attack, or (iii) the quality of updates made to Customer Applications or Third Party Applications.
5.2 Disclaimer. SECTION 5.1 STATES THE ENTIRE LIABILITY OF IOTIUM, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY IOTIUM OR ITS SERVICE OR TECHNOLOGY OR ANY PART THEREOF.
5.3 By Customer. Notwithstanding anything to the contrary in Section 5.1 and to the fullest extent permitted by applicable law, Customer will defend, release, and hold IoTium harmless from any claims brought against IoTium arising out of or in connection with Customer’s or Customer End Users’: (i) use of IoTium Technology, (ii) violation of this Agreement or any agreement between Customer and a third party, (iii) violation of any law or the rights of any third party and all related losses thereof, (iv) actions that result in an allegation of infringement or misappropriation of any third party’s rights, in connection with the use by or on behalf of IoTium of the Customer Data or Customer Applications, or (v) actions or inactions which result in negligence, fraud or willful misconduct. Customer will pay damages finally awarded against IoTium (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that IoTium provides Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. IoTium may appear, at its own expense, through counsel reasonably acceptable to Customer.
6. DISCLAIMER; LIMITATION OF LIABILITY
6.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IOTIUM HEREBY DISCLAIMS, TO FULLEST THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, 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. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. IN NO EVENT DOES IOTIUM WARRANT THAT THE INODE SOFTWARE OR IOTIUM SERVICE IS ERROR FREE OR THAT CUSTOMER WILL BE ABLE TO OPERATE THE INODE SOFTWARE OR IOTIUM SERVICE WITHOUT PROBLEMS OR INTERRUPTIONS. ADDITIONALLY, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, IOTIUM DOES NOT WARRANT THAT THE INODE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE INODE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY EXPRESS WARRANTIES FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATIONS MAY NOT APPLY.
6.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
7. GENERAL PROVISIONS
7.1 Assignment. Neither party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
7.2 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party will give the other party notice of such cause and will use its reasonable commercial efforts to correct such failure or delay in performance.
7.3 Modification of this Agreement. IoTium reserves the right, at its discretion, to modify this Agreement on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following. In the case of material changes to this Agreement, IoTium will make reasonable efforts to notify Customer of the change, such as through sending an email to any address Customer may have used to register for an account, through a pop-up window on the IoTium Service, or other similar mechanism. The modifications to the Agreement will be effective upon the earlier of (i) Customer’s first use of the IoTium Service with actual notice of such change, or (ii) 30 days from posting of such change. Customer’s use of the IoTium Service following the date that any such change becomes effective constitutes Customer’s agreement to be bound by the modified Agreement. If Customer does not agree to the modified Agreement, Customer’s sole and exclusive remedy is to terminate Customer’s account and Customer may no longer use the IoTium Service. Disputes arising under this Agreement will be resolved in accordance with the version of the Agreement that was in effect at the time the dispute arose.
7.4 Governing Law. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.
7.5 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by overnight air courier, in each case properly posted and fully prepaid to IoTium, Inc., 3080 Olcott St, Suite B240, Santa Clara, CA 95054. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
7.6 U.S. Government End Users. The IoTium Technology qualifies as “commercial items,” as that term is 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 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the IoTium Technology with only those rights set forth in the Agreement. Use of the IoTium Technology, in whole or in part, constitutes an agreement by the Government that the IoTium Technology is “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
7.7 Export Control. Customer agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the IoTium Technology or any technical information about the IoTium Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export.
7.8 Miscellaneous. This Agreement (together with the Order(s) and any applicable SOW(s)) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence will apply: these General Terms and Conditions, Order, SOW. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of IoTium to object to such terms. Any ambiguity in this Agreement will be interpreted equitably without regard to which party drafted hereof. This Agreement may only be amended by a writing signed by both parties. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. The relationship between the parties will be that of independent contractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of IoTium Technology.