END USER LICENSE AGREEMENT

PLEASE, READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) VERY CAREFULLY BEFORE CLICKING AN “I AGREE” BUTTON, DOWNLOADING OR USING THINGSBOARD PROFESSIONAL EDITION IOT PLATFORM. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SOFTWARE


DEFINITIONS

“Closed network” means a network with either restricted or limited access to the public Internet.

“Cluster deployment” means a scalable and fault-tolerant installation of the Software in which components are represented by containerized images jointly acting as Software and at least 2 core services of the same type are launched simultaneously to build a cluster.

“Core services”, in Cluster deployment, means a tb-core and/or tb-rule-engine microservices.

“Datapoint” means a particular key-value pair delivered as a part of the payload from IoT device or third-party system.

“Device fee” means a payment for IoT devices connected to the Software starting at 10,000 devices.

“Downlink” means an outgoing message from the Software to the device or third-party system.

“License key” or “License secret” means a Software activation code obtained by the Licensee as a result of licensing.

“Multi-instance license” means a license allowing the Licensee to use the same License secret for 2 or more Software copies or Core services simultaneously.

“Offer document” means the human-readable document with a reference number sent by the Licensor to the Licensee, which contains full terms and conditions of licensing of the Licensee, while the End User License Agreement specifies generic terms.

“Software” means a ThingsBoard closed-source IoT platform that enables rapid development, management and scaling of IoT projects as well as provides a possibility to (i) provision and control devices; (ii) collect and visualize data from devices; (iii) analyze device data and trigger alarms; (iv) transfer device data to other systems; (v) enable use-case specific features using customizable rules and plugins both for online or Closed network deployments. All specific features regarding the Software functionality can be found by the Licensee on the Website.

“Software License fee” means a payment, which must be contributed, starting from the moment of accepting of this Agreement and which makes it possible for the Licensee (i) to use the Software in compliance with the terms of the License; (ii) to use the support services in the time frame, over which the License fee was contributed.

“Territory” means worldwide unless otherwise provided in the Offer document.

“ThingsBoard Cloud” means a public managed service cluster offering from the Licensor.

“Total License cost” means a payment for the Software that supports more than 10,000 connected devices.

“Support” means technical support provided by the Licensor while using the Software by the Licensee within the term of the License. The main purpose of the Support is to eliminate obvious defects and errors (bugs) of the Software.

“Update fee” means a payment for the ability to download and execute the latest releases for the period of one (1) year of the Software after the initial year of usage (applicable for Perpetual license only).

“Uplink” means an incoming message from the device or third-party system to the Software.

“Website/Company’s website” means the https://thingsboard.io website that is owned by the Licensor.


RECITALS

WHEREAS, the Licensor has developed the Software and is the owner of this Software;

WHEREAS, the Licensee intends to purchase a License and use the Software; and

WHEREAS, the Licensor is ready to provide such the License for usage of the Software under the terms and conditions set forth herein, the Parties, in consideration of the foregoing premises and realizing reciprocal obligations, contained in this Agreement, have agreed as follows:

In compliance with the terms and conditions of this End­ User License Agreement (hereinafter referred to as the “License agreement”/“Agreement”), ThingsBoard, Inc. (hereinafter referred to as the “Licensor”/“We”) hereby grants Licensee (hereinafter referred to as the “Licensee”/“You”) (hereinafter collectively referred to as “Parties”) a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive right to use the Software on the territory only for Licensee’s personal use in accordance with any documentation that accompanies the License and under the terms set forth herein (hereinafter referred to as the “License”). Herewith, under the territory must be understood a territory of the whole world. This Agreement cannot be understood as an agreement for sale in any way.


TRANSFER OF THE LICENSE

The Licensor grants the License to the Licensee when all payment obligations stated herein are completed by the Licensee. Herewith, the License is to be considered as appropriately granted to the Licensee, when the Software is downloaded from the Website and the License key is delivered or used by the Licensee.

Unless a Multi-instance license, the Software within the current License covers a single operating system process. The Licensee is entitled to download the Software from the Website and install the Software only onto its 1 (one) server. Herewith, if the Licensee intends to use the Software more than 1 (one) server, the Licensee is obliged to buy the number of Licenses equal to the number of servers or obtain a Multi-instance license. The instance count equals the number of running server processes, meaning that the Software license fee is applicable to each instance within the Multi-instance license.

The Licensee acknowledges that if required, the Licensor provides the Licensee with the electronic link for downloading the Software, the License key for activating the Software, usage instructions, and the Software documentation.

The number of Licenses the Licensee intends to buy within the current Agreement may be defined in an additional agreement to this Agreement or within the Offer document.

For Cluster deployment, paid licensing is applicable for each instance of a Core service or Rule Engine service.


TERM AND TERMINATION

Under this Agreement the License is granted for a period of IP rights ownership by the Licensor unless otherwise specified by the Parties in the appropriate additional agreement or in the Offer document. Specific to a Perpetual license packages, the License bundles one year of maintenance and support disclosed hereunder.

The effective date of the License is the date the License was granted to the Licensee by the Licensor.

This Agreement comes into force as of the date of its signing. The term of the Agreement is equal to the License validity, although the Parties agreed, that the Agreement shall be legally effective until the moment, the Parties have fulfilled all their obligations under this Agreement.

The term of the Licensed Software maintenance where applicable may be prolonged for a period of 1 (one) year, if the Licensee expresses a desire to use the Software and make the appropriate payment, the amount of which shall be agreed prior to the date of prolongation/then-current maintenance period expiration. Otherwise, the Licensee may continue to use the then-current version of the Software.

The License may be withdrawn by the Licensor at any time on the grounds of the Licensee’s breach of the terms of this Agreement or for other reasons, if, at the Licensor’s sole discretion, further use of the License or other actions of the Licensee may cause harm to the Licensor or any third party, their reputation, life or health. In a case of the License withdrawal, the Agreement is to be considered as terminated, herewith, all other Licenses granted under this Agreement shall be considered as withdrawn too.

The Parties are entitled to terminate this Agreement’s validity earlier by constituting the additional agreement to this Agreement, herewith, all Licenses granted to the Licensee hereunder shall be considered as terminated too.

Upon the expiration or in the case of early termination of the Agreement, the License fee paid by the Licensee for the Licensor’s benefit shall not be refunded to the Licensee. Upon this Agreement termination, (i) all Licensee’s rights under this Agreement must be immediately terminated, and (ii) the Licensee remains responsible for all fees and charges the Licensee had to pay up to the date of termination.


FEES

The currency of this Agreement shall be US dollars. All the payments according to this Agreement must be made in US dollars if other is not specified in the Offer document.

All payments under the Agreement shall be made against the invoices the Licensor provide the Licensee with.

The amount of the Software License fee for a perpetual license scope for the 1 (one) instance includes 1 (one) year of updates available and free basic level support (“Basic support”) which is limited to: a) sharing access to the ticketing system of Licensor (“Customer Portal”); b) bugs (defects) fixing and c) server-side issues email support with up to 48 hours response time and no solution time fixed for below than 10,000 connected devices installations. If the said amount exceeds 10,000 and the Licensee expresses the will to retain the given or acquire superior quality support, provisions of para 5.5 come into effect. Notwithstanding the above-mentioned, the Licensor undertakes to fix software defects permanently regardless of the device count. If the Licensee expresses the desire to get Software updates after the License 1 (one) first-year term expiration, the Licensee shall pay the then-current Update fee. Otherwise, the Licensee can use the software without the updates. This Licensed Software maintenance period renewal can be submitted during the active maintenance term and within 2 (two) months after its expiration.

The Licensee may want to receive Basic or extended professional support services based on public offerings besides the services included in the Software License fee. If the other is not agreed in a separate agreement, the Licensor may use the following approaches to calculate the support cost: a) Time and Material support with its rate or b) using the Device fee model. Provisioned that the amount of the Device fee for one month depends on the type of the device (“Device profile”), which is determined by number of datapoints. The price decrease may be agreed upon while issuing the Offer document or within a separate support agreement. Herewith, Licensee is free to choose which calculation model to proceed with.

The final amount of this Agreement — Total License cost — is the sum of the Software License fee paid by the Licensee throughout the term of the License and the Device fee or corresponding support fee. The Software License fee is a gross amount, but it does not include any shipping, duties, bank fees, sales, any value-added tax, use tax, sales tax or any other similar tax. Each party shall pay all taxes they must (including, but not limited to, taxes based upon its income) or levies imposed on them under applicable laws, regulations and tax treaties.

The License fee is non-refundable, regardless of any circumstances, unless otherwise specified by the Parties in the appropriate additional agreement.


OBLIGATIONS OF THE PARTIES

The Licensor is obliged to provide the Licensee with the License on the terms, specified herein.

The Licensee is obliged: (i) to adhere to the terms specified in this Agreement; (ii) to make all appropriate payments provided by the Agreement; (iii) to use the Software in a good way as specified herein, herewith, the Licensee may not transfer or sublicense the License to any third party, in whole or in part, in any form; (iv) to indemnify all damages to the Licensor as stated in the Agreement; (v) to adhere to all demands regarding the confidentiality and intellectual property as stipulated herein.

The Licensee shall strictly comply with all laws, rules, and regulations applicable while using the Software.


USE OF THE LICENSE

The Licensee is entitled to use the Software the Licensee has paid for, at its sole discretion with the purposes that are specified herein as well as with any other purposes contemplated by the Software functionality and not prohibited by the applicable legislation.

The Licensee is entitled to grant the right of access to the Software to its employees, clients, partners or any other individuals but only on the basis set forth herein. Herewith, the Licensee is obliged not to transfer the Software to third parties, which are not formally authorized by the Licensee to the Software access.

The Licensee independently bears the liability for the consequences that may arise as a result of the access to the Software provided by the Licensee to its employees, clients, partners or other third parties.

The Licensee is obliged not to perform any actions regarding the Software, which can directly or indirectly violate the Licensor’s rights and/or contribute to the damages for the Licensor and/or for the third parties.

The Licensee is obliged not to develop, use or provide a competing software product or service, which include, without limitation, installations of the Software, or any component thereof, as a service, whether managed or otherwise.

The Licensee has no rights to (i) modify, alter, tamper with, repair, or otherwise create derivative works of the Software; (ii) reverse engineer, disassemble, or decompile the Software or apply any other process or procedure to derive the source code of the Software; (iii) access or use the Software in a way intended to avoid incurring fees or exceeding usage limits or quotas; (iv) resell or sublicense the Software; (v) attempt to disable or circumvent any security mechanisms used by the Software; (vi) use the Software to perform a malicious activity; or (vii) upload or otherwise process any malicious content to or through the Software.

The Licensee acknowledges and agrees that the Licensor may collect and utilize certain usage data related to Licensee’s use of the Software, including, but not limited to, the number of tenants, connected devices, assets, and other relevant metrics. This data will be collected for the purposes of: (a) verifying Licensee’s compliance with the terms and conditions of this Agreement, including the permitted scope and limitations of the license granted herein; and (b) generating statistical and analytical reports related to the use of the Software, which may be used for internal business purposes, including product improvement and development.

The Licensor shall implement reasonable security measures to protect the collected usage data from unauthorized access, use, or disclosure. Licensor may retain the collected usage data for a period necessary to fulfill the purposes outlined in this section, unless a longer retention period is required or permitted by applicable law.


SUPPORT

The Licensor will make all reasonable steps to provide the Licensee with quality Software support when it is needed. Herewith, the Licensor provides the Licensee free-of-charge community support with a 48-hour first response time or, for Perpetual Licensees, the Basic support. For Closed networks, as Software is intended to be used without public access, that is not under the control of the Licensor and is non-reachable for remote support, the Licensee acknowledges and hereby agrees that the Licensor waives its obligation to provide any Support and does not give any guarantee in case the Licensee fails with temporary access to hosting servers for the Licensor.

The Licensor may provide more quality Software support on a fee basis if the Parties agree to this additional service based on the Service Level Support Agreement.

The Licensor is entitled to provide 1 (one) year of Software updates with the latest bug fixes. Critical bugs are to be fixed with the highest priority.

The Licensee may grant the Licensor temporary access to its servers, on which the Software is used, for providing certain procedures and actions regarding the Software support. Herewith, the timeframe of such period may be agreed by the Parties additionally through the signing of additional agreements.


CONFIDENTIALITY

In the context of this Agreement, the “Confidential Information” shall mean information designated as confidential or reasonably considered as confidential, including, but not limited to, financial, advertising and operational information, information about commercial relations between the Licensor and the Licensee, trade secret, know-how, ideas, patents, modifications, improvements, derivative works, inventions, and/or original works of authorship, whether or not patentable, copyrightable or otherwise legally protectable.

Internal structure, constitution, Software code, artefacts, API, binaries, repository, and any other technical, commercial and/or financial information, either expressed in notes, letters, facsimile, memoranda, agreement, contract, analyses, reports, minutes, documents, manuals, compilations, software code or formulae, electronic mail, or other written forms, or disclosed orally, is valuable commercial and confidential information, owned by the Licensor.

Each Party to this Agreement shall keep the other party’s Confidential Information confidential by using a reasonable degree of care, but not less than the degree of care used to protect its own Confidential Information.

Each Party is obliged not to disclose the other party’s Confidential Information to any third party without the disclosing party’s prior written consent or except as required by law or use the other party’s Confidential Information for any purpose except performing this Agreement or furthering the relationship between the Parties. The Licensor is entitled to collect, keep and use the Confidential information of the Licensee with the purpose to fulfill the obligations stipulated herein as well as for the Software improvement and development unless otherwise is agreed by the Parties.

The information shall not be considered as confidential in case if such information:

Upon the expiration or in the case of early termination of the Agreement, the Licensor is not obligated to keep any Licensee’s Confidential information and has a right to delete such information at sole discretion after the termination date at any time. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Confidential Information, which is considered a trade secret according to relevant law, shall be kept confidential by the Parties for as long as such information remains trade secret.


INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

The Licensor reserves ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this Agreement. These rights are reserved by international treaties and all other applicable legislative provisions regarding intellectual property protection.

The Software is not sold and is not alienated to the Licensee.

All rights for the Software are reserved by the Licensor except those, which are explicitly transferred to the Licensee as the end user of the Software under the License transferred within this Agreement.

While using the Software, the Licensee is entitled to upload data which belongs to the Licensee. Herewith, the Licensee represents and warrants that the Licensee owns all rights, title, and interests in and to its data and none of its data violates this Agreement, any applicable law or any third party’s intellectual property or other rights. Furthermore, the Licensee grants a limited, commercial, non-sublicensable, non-transferable, non-exclusive, revocable right to the Licensor to keep and use such data for the sole purpose of execution of this Agreement. In case of revocation of this right by the Licensee, the functionality of the Software may be limited, and certain or all functions of the Software may be disabled.

While using the Software, the Licensee may upload any other information including any personal information, herewith, the Licensee represents and warrants that the Licensee owns all rights for such information or got consent to use such information from the owner.

The Licensor neither collects nor processes any personal information within the current Agreement.

The Licensee acknowledges and confirms that the Licensor may use the data, the intellectual property rights for which belong to the Licensee, to improve or/and develop the Software functionality. The Licensor may disclose the Licensee’s data for the purpose of facilitating the Software usage or for the purpose of complying with any request of a governmental or regulatory body.
In the case of the termination or early termination of the Agreement, the Licensor is not obligated to keep any data the intellectual property rights for which belong to the Licensee and has a right to delete such data at its sole discretion after the expiration or early termination, at any time.


WARRANTIES DISCLAIMER

THE LICENSOR PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THE LICENSOR DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THE LICENSEE ACKNOWLEDGES THAT IT IS NOT TECHNICALLY PRACTICABLE FOR THE LICENSOR TO DO SO. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.


LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, AGREEMENT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM THE LICENSEE USE OF THE SOFTWARE. THE LICENSOR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY THE LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.


LIABILITY AND INDEMNIFICATION

If the Licensee violates the Licensor’s intellectual property rights and/or discloses the Licensor’s Confidential information, the Licensee shall reimburse the Licensor for all arising expenses and losses.

The Licensee independently bears the liability in a case of appeals of any third parties, whose rights and/or interests are violated as a result of the use of the data uploaded by the Licensee while using the Software.

The Licensee is obliged to indemnify and hold harmless the Licensor, its representatives and partners from and against any damages, reasonable legal fees and costs finally awarded against the Licensor to the extent resulting from or for amounts paid by the Licensor to settle any third party claim concerning Licensee’s data or the combination of Licensee’s data with other applications, content or processes, including any claims involving alleged infringement or misappropriation of third-party rights by Licensee’s data or by the use, development, design, production, advertising or marketing of Licensee’s data.

The Licensor shall indemnify the Licensee from damages, reasonable legal fees, and costs finally awarded against the Licensee in a case when a third party asserts against the Licensee a claim that the Software infringes a third party’s intellectual property right. In any case, the Licensor is not obliged to defend or indemnify the Licensee, if the third parties’ claims are based or occurred as a result of any breach of this Agreement by the Licensee.


DISPUTES RESOLUTIONS

This Agreement shall be governed and construed in accordance with the laws of the state of New York, United States of America.

All disputes, arising from this Agreement shall be settled by the Parties by negotiating. In case, the Parties cannot manage to reach an agreement regarding the arisen dispute, such dispute shall be submitted to the corresponding court of the New York state, USA. Each Party hereby unconditionally agrees on the exclusive jurisdiction and the place of the trial venue. Herewith, the Licensee hereby agrees the trial must be held in accordance with the rules of such court.


MISCELLANEOUS

This Agreement represents the complete agreement regarding the License which is to be transferred by the Licensor to the Licensee and supersedes all prior agreements and representations between the Parties. In a case where any provision of this Agreement becomes or is declared by the court of the competent jurisdiction as illegal, unenforceable or void, this Agreement will be effective entirely without the mentioned provision.

Parties agreed, that the exchange of the information shall take place, among other means, by means of sending electronic letters via the following e-mail:

E-mail of the Licensor: [email protected];

Upon this Agreement comes into force, all correspondence, preliminary agreements, protocols of intent and any other written or oral appointments between the Parties on issues, in some manner regarding this Agreement, lose legal effect, but can be taken into consideration in case of interpretation of the terms of this Agreement.

The Parties bear full liability for the accuracy of banking details, specified by the Parties in this Agreement, and each of the Parties is obliged to notify the other Party of changes in such banking details in time and in written form, and bear the responsibility for repercussions, connected with this, in a case of non-notifying the other Party. The additional agreements as well as the appendixes to this Agreement are to be considered as an integral part of the Agreement and are legally binding, in case of being concluded in written form, signed duly by the persons, authorized by the Parties and sealed by the Parties.