End User License Agreement

By using the software that is embedded on the Orca IoT camera, machinery trackers, wearables, and jobsite mobile apps, and our software-as-a-service platform (collectively, “Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Orca IoT, Inc. (“Orca IoT” or “we”).

This EULA governs your access and use of the Product. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT.

1. License.

Subject to and conditioned upon Your agreed upon payment and strict compliance with the terms of this EULA, Orca IoT hereby grants You a non-exclusive, non-transferable right to access and use the Product during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Your internal use.

2. Restrictions.

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product or make the Product available to any third party, (b) copy or use the Product for any purpose other than as permitted in Section 1, (c) use any portion of the Product on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Orca IoT and provide Orca IoT an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product to any third party without prior written approval of Orca IoT for each such release.

3. Automatic Software Updates.

Orca IoT may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product and you agree to promptly install any Updates Orca IoT provides. Your continued use of the Product is your agreement to this EULA.

4. Ownership.

The Product and all corresponding data that is produced, collected, or results from the Product, and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Orca IoT and its licensors. Orca IoT and its licensors reserve all rights in and to the Product not expressly granted to you in this EULA. The Product (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Orca IoT with respect to the Product shall be Orca IoT’ property. Orca IoT may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Orca IoT does not waive any rights to use similar or related ideas previously known to Orca IoT, developed by its employees, or obtained from other sources.

5. Consent to Use of Information and Data Security

You acknowledge and agree that Orca IoT and its affiliates, partners and agents may read, collect, transfer, process and store certain information collected from the Product, including but not limited to information about (i) the Product and (ii) the software applications, contents and peripheral devices that interact with the software (“Information”). Information includes, but is not limited to: (1) unique identifiers relating to your device(s) and their components; (2) performance of the Product; (3) configurations of your device(s), the Product and applications, contents and peripheral devices that interact with the Product; (4) use and frequency of use of the functions of the Product; and (5) location data. Orca IoT and its affiliates, partners and agents may use and disclose Information subject to applicable laws in order to improve its products and services or to provide products or services to you. Such uses include, but are not limited to: (a) administering the functionalities of the Product; (b) to improve, service, update or upgrade the Product; (c) improving, developing and enhancing the current and future products and services of Orca IoT and other parties; (d) to provide you with information about the products and services offered by Orca IoT and other parties; and (e) complying with applicable laws or regulations. In addition, Orca IoT retains the right to use Information to protect itself and third parties from illegal, criminal or harmful conduct.

Certain services available through the Product may rely upon location information, including, but not limited to, location and biometric data. You acknowledge that for the purpose of providing such services, Orca IoT or their partners may collect, archive, process and use such location data, and that such services are governed by the privacy policies of Orca IoT or such third party. You further agree that Orca IoT is the owner of all data and intellectual property relating thereto.

Information may be processed, stored or transferred to Orca IoT, its affiliates or agents which are located in countries outside of your country of residence. Data protection and information privacy laws in certain countries may not offer the same level of protection as your country of residence and you may have fewer legal rights in relation to Information processed and stored in, or transferred to, such countries. Orca IoT will make reasonable efforts to take appropriate technical and organizational steps to prevent unauthorized access to or disclosure of Information, but does not warrant it will eliminate all risk of misuse of such Information.

6. Open Source.

Certain items of software included with the Product are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Orca IoT makes such Open Source Software, and Orca IoT’ modifications to that Open Source Software, available by written request to Orca IoT at the email or mailing address listed below.

7. Term and Termination.

This EULA and the license granted hereunder are effective on the date you first use the Product or Product and shall continue for as long as you use the Product or Product, unless this EULA is terminated under this section. Orca IoT may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Orca IoT. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product, but the terms of Sections 2 through 16 (inclusive) will remain in effect, after any such termination.

8. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ORCA IOT PROVIDES THE PRODUCT “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ORCA IOT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT. ORCA IOT MAKES NO WARRANTY THAT THE PRODUCT WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND ORCA IOT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS RESULTING FROM YOUR USE OF THE PRODUCT OR PRODUCT.

9. Limitation of Liability

Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) ORCA IOT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT, EVEN IF ORCA IOT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) ORCA IOT’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO ORCA IOT OR ORCA IOT’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ORCA IOT DISCLAIMS ALL LIABILITY OF ANY KIND OF ORCA IOT’ LICENSORS AND SUPPLIERS.

10. Confidentiality.

“Confidential Information” shall mean the Product and all other information disclosed to you that Orca IoT characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Orca IoT. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Orca IoT in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Orca IoT in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Orca IoT prior to such disclosure to allow Orca IoT an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Orca IoT in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

11. For U.S. Government End Users.

The Product is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

12. Governing Law; Venue.

The courts in some countries will not apply Georgia law to some types of disputes. If you reside in one of those countries, then where Georgia law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of Georgia, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Dekalb County, Georgia and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Orca IoT may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.

13. Assignment.

Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.

14. Notices.

Any notice to you may be provided by email to the address that you registered with Orca IoT.

15. Severability.

If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

16. Waiver.

All waivers by Orca IoT will be effective only if in writing. Any waiver or failure by Orca IoT to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17. General.

The Product is deemed irrevocably accepted upon your use of the Product or Product. Orca IoT will have no responsibility to provide maintenance or support services with respect to the Product. The parties are independent contractors.

You acknowledge that the Product contains valuable trade secrets and proprietary information of Orca IoT, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Orca IoT for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.

Questions or Additional Information. If you have questions regarding this EULA, please contact Orca IoT at support@orcaiot.com or 1 (833)-672-2468.

Last Updated: September 11, 2019