End User License Agreement

Section 1. Delivery and Acceptance

The Software is deemed delivered and accepted by You on the earlier of the date it is made available to You for download or installation, the date AssetPulse ships tangible media containing the Software, or, for a Cloud Service, the date AssetPulse provides You with access credentials. You agree to be bound by this EULA from that date. If You do not have authority to enter into this EULA, or You do not agree with its terms, do not Use the Software: uninstall or disable it, and return any tangible media to the Approved Source.

Section 2. License

Subject to Your purchase of a license to the Software from an Approved Source and Your compliance with this EULA, AssetPulse grants You a non-exclusive, non-transferable license to Use the Software and related Documentation for Your internal business operations, in accordance with and for the term (if any) specified in the applicable Order, Entitlement and supplemental terms. If Your Use of the Software exceeds Your Entitlement, You will pay for the excess Use.

Open source and other third-party software that is not owned by AssetPulse but that is delivered with or used alongside the Software is licensed to You under its own terms, which are made available with the Software or in the Documentation. Those terms control for that software.

Where AssetPulse hosts and operates the Software for You as a Cloud Service, Section 24 (Hosted Deployments) also applies to that Use.

Section 3. Beta and Trial Use

Beta versions of AssetPulse Software may contain bugs, errors or other defects, and may not be used in Your production environment(s) unless AssetPulse permits it in writing.

If AssetPulse provides You access to generally available Software for limited, temporary trial use, Your Use is permitted for the period set by the license key or by AssetPulse in writing. If no period is identified, the trial expires thirty (30) days after the Software is made available to You. AssetPulse may end any beta or trial at any time in its discretion, at which point You will no longer have access to related data, information and files and must immediately cease Use.

Continued Use of the Software after the trial period ends is a breach of this EULA and is handled under Section 12.

Beta and trial Software is provided “AS IS,” without support and without warranty of any kind, express or implied, and AssetPulse will have no liability arising out of Your use of it.

Section 4. Ownership and Feedback

As between the parties, AssetPulse retains all right, title and interest, including all intellectual property rights, in and to the Software, the Documentation and all underlying technology. No rights are granted to You except those expressly set out in this EULA.

You are not required to provide feedback. If You do provide feedback, comments or suggestions relating to the Software, You grant AssetPulse a perpetual, irrevocable, royalty-free license to use them for any purpose, without obligation or attribution to You.

Section 5. Restrictions

Unless expressly authorized by AssetPulse in writing, or permitted under applicable law that cannot be waived by contract, You will not:

(i) sell, resell, transfer, sublicense or assign Your rights under this EULA, except as expressly permitted in Section 20.4 (Assignment); (ii) modify, adapt or create derivative works of the Software; (iii) reverse engineer, decompile, decrypt or disassemble the Software, or otherwise attempt to derive its source code, except as permitted by Section 17 (Interoperability); (iv) make the functionality of the Software available to third parties, whether as an application service provider or on an outsourcing, membership, subscription, rental, service bureau, cloud, managed or hosted basis, or any similar basis; (v) Use Software licensed for a specific device, whether physical or virtual, on another device, or otherwise Use the Software beyond Your Entitlement; or (vi) remove, modify or conceal any product identification, copyright, proprietary or intellectual property notice or other mark.

Supported configurations. AssetPulse identifies the readers, gateways, mobile devices and third-party products it supports in the Documentation, including the published compatibility matrix. You may Use the Software with other equipment or third-party products, but AssetPulse does not warrant, support or accept responsibility for the operation of the Software in an unsupported configuration. Issues arising from an unsupported configuration are excluded from the warranty in Section 9 and from AssetPulse’s support obligations.

Section 6. Upgrades and Additional Copies

You may Use Upgrades and additional copies of the Software only within Your Entitlement. To Use an Upgrade or an additional copy beyond Your Entitlement, You must:

(a) hold and comply with a valid license to the underlying Software, and have paid any fee applicable to the Upgrade or copy; and (b) either hold a valid support agreement covering the Software (whether as part of a subscription or purchased separately), or purchase the Upgrade or additional copy separately.

Section 7. Use by Authorized Users

Authorized Users may Use the Software on Your behalf for Your internal operations. You remain responsible for their compliance with this EULA. Any act or omission by an Authorized User that would breach this EULA had it been Your own act or omission is treated as Your breach.

Section 8. Third-Party Products and Equipment

If You Use the Software together with third-party products, equipment or services, You are responsible for complying with those providers’ terms, conditions and privacy policies, and all such use is at Your risk. AssetPulse does not provide support for, and does not guarantee ongoing integration with, products that are not a native part of the Software. AssetPulse’s supported configurations are identified in the Documentation.

Section 9. Limited Warranty, Exclusive Remedy and Disclaimer

9.1 Limited Warranty. AssetPulse warrants that the Software will substantially conform to the applicable Documentation for ninety (90) days following the date the Software is made available to You for Your Use. This warranty does not apply if the Software, or any AssetPulse product or other equipment on which the Software is authorized to be used:

(i) has been altered, except by AssetPulse or its authorized representative; (ii) has not been installed, operated, repaired or maintained in accordance with instructions supplied by AssetPulse; (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence or accident; (iv) is licensed for beta or trial purposes, or provided in other circumstances for which the Approved Source does not receive payment of a purchase price or license fee; (v) has not been provided by an Approved Source; or (vi) is operated in an unsupported configuration as described in Section 5.

AssetPulse will use commercially reasonable efforts to deliver Software free from any virus, program or programming device designed to modify, delete, damage or disable the Software or Your data.

9.2 Exclusive Remedy. Upon Your prompt written notification to AssetPulse, during the warranty period, of AssetPulse’s breach of Section 9.1, and to the extent permitted by applicable law, Your sole and exclusive remedy is, at AssetPulse’s option, either: (i) repair or replacement of the Software; or (ii) a refund of the license fees paid for the non-conforming Software. AssetPulse may require You to return or destroy the Software, the applicable AssetPulse product and/or the Documentation as a condition of the remedy.

9.3 Disclaimer. Except as expressly set forth in Section 9.1 or agreed in writing by AssetPulse, and to the extent allowed by applicable law, AssetPulse expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term regarding merchantability, fitness for a particular purpose, or non-infringement.

Section 10. Limitations and Exclusions of Liability

Excluded losses. Neither AssetPulse nor its licensors will be liable, on any theory of liability and whether or not arising out of or relating to this EULA, Your Order or the Software, for: (a) any indirect, incidental, special, exemplary or consequential loss or damage; (b) loss or corruption of data, or interruption to Your business; or (c) lost revenue, lost profits, lost goodwill, or sales or savings that were anticipated but not realised. This applies even where the party in question knew that such loss was possible.

Cap on liability. The combined liability of AssetPulse and its affiliates, officers, directors, employees, agents, suppliers and licensors to You — in warranty, contract, tort (including negligence) or on any other basis — is limited to the fees paid or payable for the Software giving rise to the claim in the twelve (12) months before the event that first gave rise to it, whether those fees were paid to AssetPulse or to an Approved Source. That limit applies in aggregate across all claims, not separately to each one.

Unwaivable liability. Nothing in this EULA limits or excludes liability that applicable law does not permit to be limited or excluded.

Section 11. Audit

During the license term, You will take reasonable steps to maintain complete and accurate records of Your Use of the Software sufficient to verify compliance with this EULA. On at least thirty (30) days’ prior written notice, and no more than once in any twelve (12) month period, You will allow AssetPulse and its auditors to examine those records and any applicable books, systems (including, where applicable, AssetPulse-supplied products or other equipment) and accounts, during Your normal business hours and in a manner that does not unreasonably interfere with Your operations. AssetPulse and its auditors will comply with Your reasonable site and security requirements, and audit results are Your Confidential Information. If an audit discloses underpayment of license fees, You or Your Approved Source will pay those fees within thirty (30) days of written notice, plus the reasonable cost of the audit if the underpayment exceeds five percent (5%) of the fees properly due.

Section 12. Term and Termination

Your license begins on the date the Software is shipped or made available for download or installation, and continues until terminated or until the end of the term specified in the Order or Entitlement (the “Term”). This is also the start date of Your subscription, if the Software is licensed on a subscription basis.

Subscriptions automatically renew for the renewal period selected on the Order (each, a “Renewal Term”) unless: (i) You notify AssetPulse in writing at least thirty (30) days before the end of the then-current term that You do not intend to renew; or (ii) You or Your Approved Source elected on the Order at the time of initial purchase not to auto-renew. Your Approved Source will notify You reasonably in advance of any Renewal Term if fees will change. The new fees apply for the upcoming Renewal Term unless You notify AssetPulse in writing before the renewal date that You do not accept them, in which case the subscription terminates at the end of the then-current term.

If a party materially breaches this EULA and does not cure the breach within thirty (30) days after written notice of it, the non-breaching party may terminate this EULA for cause. AssetPulse may also immediately suspend or terminate Your Use of the Software and any associated Cloud Service if You breach Section 2, Section 5 or Section 15.

On termination or expiration, You must cease all further Use of the Software and any associated Cloud Service, and, where applicable, destroy or return all copies of the Software within Your control; on AssetPulse’s request, You will certify that You have done so. Following termination or expiration, AssetPulse will, on Your request, make Customer Data then in its possession available to You for export. AssetPulse may delete Customer Data thereafter.

On Your termination for AssetPulse’s material breach, AssetPulse will refund to You or Your Approved Source any prepaid fees covering the period from the effective date of termination to the end of the Term. On AssetPulse’s termination for Your material breach, You will pay any unpaid fees covering the period from the effective date of termination to the end of the Term.

Section 13. Confidential Information and Data

13.1 Confidential Information. Recipient will hold Discloser’s Confidential Information in confidence and use no less than reasonable care to avoid disclosing it to any third party, except to its employees, affiliates and contractors who need to know it in connection with this EULA and who are bound by written confidentiality obligations no less restrictive than this Section. Recipient is liable for any breach of this Section by those employees, affiliates and contractors.

Recipient’s nondisclosure obligation does not apply to information that: (i) is known to Recipient without confidentiality obligations; (ii) is or becomes public knowledge through no fault of Recipient; (iii) is independently developed by Recipient; or (iv) is rightfully received from a third party without restriction.

Recipient may disclose Discloser’s Confidential Information if required by regulation, law or court order, provided Recipient gives Discloser prior notice (to the extent legally permitted) and reasonably cooperates, at Discloser’s expense, with protective actions Discloser pursues. On Discloser’s reasonable request, Recipient will return, delete or destroy Discloser’s Confidential Information and certify that it has done so.

13.2 How We Use Your Data. AssetPulse processes and uses Customer Data to deliver, analyze, support and improve the Software, and as otherwise permitted in this EULA and the AssetPulse Privacy Policy. AssetPulse will maintain appropriate administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data it processes, and will notify You without undue delay after becoming aware of a security incident affecting Your Customer Data. AssetPulse may share Customer Data with third-party service providers, consistent with the AssetPulse Privacy Policy, to assist in providing and improving the Software. AssetPulse contracts only with service providers that can provide a level of data protection and information security consistent with AssetPulse’s own.

Where AssetPulse processes personal data on Your behalf and that processing is subject to the EU General Data Protection Regulation, the UK GDPR or a comparable data protection law, the AssetPulse Data Processing Addendum applies to that processing and is incorporated into this EULA by reference. AssetPulse will provide a copy of the Data Processing Addendum on request — contact AssetPulse using the details in Section 22. In the event of a conflict between this EULA and the Data Processing Addendum, the Data Processing Addendum controls with respect to the processing of personal data.

13.3 Telemetry Data. AssetPulse processes Telemetry Data to deliver, enhance, improve, customize, support and analyze the Software and other AssetPulse offerings, and may otherwise freely use Telemetry Data that does not identify You or any Authorized User. You can configure the Software to limit the Telemetry Data collected; in some cases Telemetry Data collection can only be stopped by uninstalling or disabling the Software.

13.4 International Data Transfers. The Cloud Service is hosted in the United States, and AssetPulse may process and store Customer Data in the United States or outside the country where it was collected. Where Customer Data originates from the European Economic Area, the United Kingdom or Switzerland, the transfer mechanism set out in the Data Processing Addendum applies. You are responsible for providing any required notices to, and obtaining any required consents from, Authorized Users regarding the processing and transfer of data by the Software, including international transfers.

Section 14. US Government End Users

The Software and Documentation are “commercial computer software” and “commercial computer software documentation” under FAR 12.212 and DFARS 227.7202. U.S. Government end users acquire the Software and Documentation with only the rights set forth in this EULA. Any provision inconsistent with federal procurement regulations is unenforceable against the U.S. Government.

Section 15. Export and Sanctions

AssetPulse Software, products, technology and services are subject to U.S. and local export control and sanctions laws and regulations. You and AssetPulse will each comply with those laws and regulations governing the use, export, re-export and transfer of the Software, products and technology, and will obtain all required U.S. and local authorizations, permits and licenses. You represent that You are not located in, and will not Use or transfer the Software in or to, an embargoed or sanctioned country, and that You and Your Authorized Users are not on any U.S. government denied-party or restricted-party list.

Section 16. Survival

The following survive termination or expiration of this EULA: Section 4 (Ownership and Feedback), Section 5 (Restrictions), Sections 9.2 and 9.3, Section 10 (Limitations and Exclusions of Liability), Section 11 (Audit) for twelve (12) months following termination, Section 13 (Confidential Information and Data), Section 14 (US Government End Users), Section 15 (Export and Sanctions), this Section 16, Section 18 (Third Party Beneficiaries), Section 19 (Governing Law and Dispute Resolution), Section 20 (General), Section 22 (Notices), Section 24.6 (Data on termination) and Section 25 (Definitions).

Section 17. Interoperability

Where applicable law gives You a right to interoperability information, AssetPulse will supply, on Your written request, the interface information needed to make the Software work with an independently created program. You will treat that information as AssetPulse’s Confidential Information, use it solely to achieve that interoperability, and observe any conditions AssetPulse reasonably attaches to its release.

Section 18. Third Party Beneficiaries

This EULA does not grant any benefit to any third party unless it expressly says that it does. No person other than a party to this EULA may enforce or take the benefit of any of its terms.

Section 19. Governing Law and Dispute Resolution

19.1 Governing law. This EULA, and any dispute arising out of or relating to it, is governed by the laws of the State of California, United States of America, excluding its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

19.2 Arbitration. Any controversy or claim arising out of or relating to this EULA, or its breach, will be settled by binding arbitration in Santa Clara County, California, before a single arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party bears its own costs and attorneys’ fees, and the parties share the arbitrator’s fees equally, unless the arbitrator awards the prevailing party its reasonable fees and costs.

19.3 Equitable relief. The parties agree that a breach of Section 5 (Restrictions) or Section 13 (Confidential Information and Data) may cause irreparable harm for which monetary damages would be an inadequate remedy. Either party may seek injunctive or other equitable relief, from the arbitrator or from any court of competent jurisdiction, to restrain an actual or threatened breach and to obtain specific performance, without the need to post a bond or other security.

Section 20. General

20.1 Severability. If any portion of this EULA is found void or unenforceable, the remaining provisions remain in full force and effect.

20.2 Entire agreement. Except as expressly stated, or as expressly amended in a signed agreement, this EULA is the complete agreement between the parties with respect to the Software and supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, regarding this subject matter.

20.3 Order of precedence. In the event of a conflict, the order of precedence is: (i) a signed written agreement between You and AssetPulse covering the Software; (ii) supplemental terms; (iii) these license terms; then (iv) any policies referenced in this EULA.

20.4 Assignment. You may not assign this EULA, in whole or in part, without AssetPulse’s prior written consent, except to a successor in connection with a merger, acquisition or sale of all or substantially all of Your assets, on written notice to AssetPulse. AssetPulse may assign this EULA to an affiliate or to a successor in interest. Any attempted assignment in breach of this Section is void.

20.5 No waiver. A party’s failure to enforce any provision is not a waiver of its right to do so later.

20.6 Independent contractors. The parties are independent contractors. This EULA creates no partnership, franchise, joint venture, agency, fiduciary or employment relationship.

20.7 Language. The English version of this EULA governs in the event of a conflict with any translation.

20.8 Changes to this EULA. AssetPulse may update this EULA from time to time by posting a revised version at assetpulse.com/license-agreement. The version in effect on the date of Your Order governs that Order for its Term; a revised version applies to Software licensed, and to renewals commencing, after its effective date.

Section 21. AssetPulse Partner Transactions

If You purchase AssetPulse Software and/or Services from an AssetPulse Partner: (i) the terms of this EULA apply to Your Use of the Software and/or Services; and (ii) the terms of this EULA prevail over any inconsistent provision in Your purchase order with the AssetPulse Partner.

Section 22. Notices

AssetPulse may provide You with notice by email and/or by posting on the assetpulse.com website or any other website used with the Software. Notices to AssetPulse must be sent to AssetPulse, LLC, 1340 S. De Anza Blvd., Suite #106, San Jose, CA 95129, USA, unless this EULA, applicable supplemental terms or an Order allows another means of notice.

Section 23. Force Majeure

Neither party is liable for any delay or failure in performing its obligations, other than an obligation to pay, where the cause lies outside that party’s reasonable control. This includes natural disasters and severe weather; epidemics and pandemics; war, civil unrest and acts of terrorism; industrial action; acts or orders of any government or regulator; and the failure or unavailability of the public internet or of utility services. The affected party will notify the other promptly and resume performance as soon as it reasonably can.

Section 24. Hosted Deployments

This Section applies only where AssetPulse hosts and operates the Software for You as a Cloud Service. It does not apply where You install and operate the Software on infrastructure You control, whether on Your premises or in Your own cloud environment.

24.1 Availability. AssetPulse will use commercially reasonable efforts to keep the Cloud Service available. AssetPulse provides no uptime guarantee and no service credits under this EULA. The Cloud Service may be unavailable during planned maintenance, and AssetPulse will use commercially reasonable efforts to schedule planned maintenance outside normal business hours and to give You advance notice of it.

24.2 AssetPulse responsibilities. AssetPulse is responsible for provisioning and operating the infrastructure on which the Cloud Service runs, applying Upgrades to it, and maintaining routine backups of Customer Data in accordance with its then-current operational practices.

24.3 Your responsibilities. You are responsible for: managing Your Authorized Users and their access; safeguarding account credentials; the accuracy and lawfulness of Customer Data You submit; and promptly notifying AssetPulse of any suspected unauthorized access to Your tenant.

24.4 Tenant separation. The Cloud Service is multi-tenant. AssetPulse logically segregates Customer Data so that each customer’s data is accessible only to that customer’s Authorized Users and to AssetPulse personnel who require access to operate and support the Cloud Service.

24.5 Suspension. AssetPulse may suspend Your access to the Cloud Service, in whole or in part, if: (i) fees are overdue and remain unpaid after written notice; (ii) Your Use poses a security risk to the Cloud Service or to another customer; or (iii) suspension is required by law. Except where an immediate suspension is necessary to protect the Cloud Service, AssetPulse will give You notice and a reasonable opportunity to resolve the issue first, and will restore access promptly once resolved.

24.6 Data on termination. Section 12 governs the return and deletion of Customer Data following termination or expiration.

Section 25. Definitions

“Approved Source” means AssetPulse or an AssetPulse authorized reseller, distributor or systems integrator.

“AssetPulse,” “we,” “our” or “us” means AssetPulse, LLC or its applicable affiliate(s).

“AssetPulse Partner” means an Approved Source other than AssetPulse.

“Authorized User(s)” means the individuals You authorize to access the Software, including Your employees and third parties that access the Software solely on Your behalf for Your internal operations.

“Cloud Service” means the AssetPulse hosted, multi-tenant service through which AssetPulse operates the Software for You, as described in the applicable Order or Documentation. A Cloud Service includes Software.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA which: (i) is conspicuously marked as confidential; (ii) by its nature should reasonably be considered confidential; or (iii) if disclosed verbally, is summarized in writing to Recipient within fourteen (14) days.

“Customer Data” means all information and data that You or an Authorized User provides or transfers to AssetPulse, or that the Software collects from You, Your Authorized Users or Your systems, in connection with Your Use of the Software, including data relating to Authorized Users. Customer Data does not include Telemetry Data.

“Documentation” means the AssetPulse user or technical manuals, training materials, specifications, compatibility matrices, privacy data sheets and other information applicable to the Software.

“Entitlement” means the license details, including license metric, duration and quantity, specified in the Order.

“Order” means an ordering document (including a web or other electronic form) that specifies the duration, type or product ID, and quantity of Software and/or Cloud Services to be provided, and the associated fees (if any).

“Services” means the implementation, configuration, training, support and other professional services AssetPulse or an AssetPulse Partner provides in connection with the Software, as described in an Order.

“Software” means AssetPulse computer programs in object-code form (including Upgrades), however delivered — by download, on physical media, pre-installed on a computer system, embedded in a device, or hosted — and obtained from an Approved Source. Software includes firmware supplied by AssetPulse.

“Telemetry Data” means data the Software generates about its own operation and Your Use of it, including configuration and log data; Software version and deployment details; health, status and diagnostic data for readers, gateways, sensors, mobile devices and other connected equipment; error and crash reports; and feature-usage and performance metrics. Telemetry Data does not include Customer Data.

“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.

“Use” means to download, install, activate, access, run, or otherwise benefit from the functionality of the Software.

“You” and “Your” means the individual or legal entity licensing the Software under this EULA.

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