Exosite Master Services Agreement

This Master Services Agreement (“Agreement”) is by and between Exosite LLC, a Delaware limited liability corporation, with offices located at 1015 Glenwood Ave, Floor 4, Suite E, Minneapolis, Minnesota, 55405, United States of America  ("Exosite"), and (i) the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity; or (ii) an individual, in the case of a non-legal entity as defined in the registration information provided to Exosite ("Licensee"). Exosite and Licensee may be referred to herein collectively as the "Parties" or individually as a "Party."

In the absence of a custom services agreement, this Agreement governs use of Exosite Services (“Services”) and Exosite Software Products (“Proprietary Software”) in accordance with the terms set forth in the (i) attached Exosite Master Services Terms and (ii) any Addendum(s) executed by Exosite and Licensee and any Exhibits thereto.

By accepting this Agreement, by clicking the acceptance checkbox indicating your acceptance, or by signing an Addendum to this Agreement, you have agreed to this Agreement. If you are entering into this Agreement on behalf of a Company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to this Agreement, in which case the terms “You” and “Your” shall refer to such entity and its Affiliates. If you do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use the Services.

You may not use the Services if you are a direct competitor, except with prior written consent by Exosite. You may not access the Services for competitive purposes.

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to Our Proprietary Software, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.

This Agreement was last updated on <Month Date, Year>. It is effective between Exosite and Licensee as of the date You accepted this Agreement.

Exosite Master Services Terms

1. Definitions. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement will have the meanings set forth below:
   1. "Addendum" means a document that extends and becomes part of this Agreement by clearly stating that it is an Addendum to this Agreement, and that must be memorialized in writing and signed by both Parties.  Where conflicts between an Addendum and the Exosite Master Services Terms exists, the terms in the Addendum take precedence.
   2. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   3. “Authorized User” shall have the meaning set forth in Section 3.1.
   4. “Exosite Cloud Multitenant IoT Platform” means Exosite’s multi-tenant IoT platform that is provided from Exosite’s cloud environment to Licensee, and other Exosite customers, as a Managed Instance accessible via the Internet domain exosite.io.
   5. “Exosite Business Account” means Licensee’s account used to access exosite.io.
   6. “Licensee Customer Data” means all electronic data or information submitted by Licensee to the IoT Platform.
   7. “Licensee Customer” or “Licensee Partner” means any individuals or entities that are neither Licensee not Licensee Affiliates, but who are Authorized Users of the IoT Platform and/or Proprietary Software.
   8. “Licensee Data” means any and all electronic data or information submitted by Licensee to the IoT Platform.
   9. “IoT Data” means all Licensee Data and/or Licensee Customer Data which is submitted to the IoT Platform.
   10. “IoT Device” means an electronic device that has either sensing and/or controlling capabilities and is programmed with security credentials to connect to the IoT Platform.
   11. “IoT Platform” means the deployed software functionality which Exosite makes available to Licensee and Licensee Customers from Exosite’s cloud environment, dedicated cloud environments, or on-premise environments, and may include both Managed Instances and Unmanaged Instances. The IoT Platform will contain various services and applications provided by Exosite, including Murano, ExoSense, application and device APIs, web services, and other related Proprietary Software that Exosite provides and/or manages, and that Licensee and Licensee Customers accesses as further set forth herein.
   12. “Managed Instances” means one or more server environments running the Proprietary Software and provided as part of the IoT Platform to Licensee and managed over the Internet by Exosite.
   13. “Managed Instances IoT Data” means all IoT Data that is stored, transmitted, used, and/or accessed through or by server environments running the Proprietary Software as part of the IoT Platform to Licensee and managed over the Internet by Exosite.
   14. “Miscellaneous Services” means miscellaneous services and items that may be provided to Licensee hereunder by Exosite pursuant to an Addendum, including, without limitation: onboarding, training, solution support, testing, database extraction, site monitoring, additional sandboxes and third-party services.
   15. “Order Form” means an Addendum to this Agreement labeled “Order Form” with a numerical suffix in increasing sequential order that includes Exosite ordering documents.  Order Forms may be executed by both Parties from time to time. These Order Forms will specify the subscription(s) related to the IoT Platform and/or or Proprietary Software and any orders for Miscellaneous Services, that specify, among other things, the number, type and subscription term of the IoT Platform subscriptions ordered, any Miscellaneous Services ordered, and the applicable fees.    
   16. “Proprietary Software” means software that is developed, licensed, or purchased by Exosite, and includes the software comprising the IoT Platform, and other related software, including but not limited to, the Murano IoT platform and the ExoSense application as described at www.exosite.com/standard-pricing.
   17. “Services” means the IoT Platform, Miscellaneous Services, and Professional Services as further described herein.
   18. “Unmanaged Instances” means one of more server environments running the Proprietary Software and provided as part of the IoT Platform to Licensee and as managed by Licensee.
2. IoT Platform and Proprietary Software.
   1. Provisioning of IoT Platform. Exosite shall make the IoT Platform and Proprietary Software available to Licensee and Licensee Customers pursuant to the terms and conditions set forth in this Agreement.
   2. Changes to IoT Platform. As part of the normal process of operating and updating the IoT Platform, Exosite reserves the right at any time and from time to time to enhance, amend, or modify the features of the IoT Platform (or any part thereof) with or without notice.
   3. Reservation of Rights. In the event that Exosite determines any Managed Instance is not performing as anticipated, Exosite shall have the right to limit the access of Licensee or Licensee’s Customer to the Managed Instances for that period of time that is necessary for Exosite to restore the anticipated performance of the Managed Instance.
3. Use of the IoT Platform and Proprietary Software.
   1. Access and Use of IoT Platform. Exosite hereby grants Licensee, and its Affiliates, a worldwide, non-exclusive, non-sublicensable (except as necessary for Authorized Users, as hereinafter defined, to access and use the IoT Platform as set forth in Section 3.2), commercial, royalty-free, license during the Term, provided that in no event shall the Proprietary Software be sold or licensed to third parties on an independent basis, to: (i) access the IoT Platform and Proprietary Software and use the functionality available within the IoT Platform and Proprietary Software; and (ii) to authorize an Operator End User, Customer Admin User or Customer End User (each an “Authorized User”) to access and use the functionality within the IoT Platform and Proprietary Software. This license does not grant Licensee permission to use the trade names, trademarks, service marks, or product names of Exosite, except as required for reasonable and customary use in describing the origin of the IoT Platform.
   2. Access and Use by Authorized Users. As part of the license grant set forth in Section 3.1 above, Licensee may permit an Authorized User to access and use the IoT Platform and Proprietary Software subject to a IoT Platform Terms of Services (“TOS”), which must be in compliance with this Agreement.
   3. Exosite Responsibilities. Exosite shall: (i) use commercially reasonable efforts make Managed Instances of the IoT Platform available and functioning properly for Licensee and Licensee Customers in accordance with the terms and conditions of this Agreement; (ii) implement and maintain backup, security and business continuity measures, in accordance with best industry practices and the terms and conditions of this Agreement, in order to maintain the security and integrity of the Managed Instances of the IoT Platform and related IoT Data; provided, however, that Exosite will have no obligation to backup or maintain the security of IoT Data that are solely within the control of Licensee; and (iii) comply with all applicable local, state, and federal laws (including laws regarding privacy and protection of consumer information) in providing the Services.
   4. Licensee Responsibilities. Licensee shall not: (i) permit any third party to access Proprietary Software except as permitted herein; (ii) create derivative works based on Proprietary Software; (iii) copy, frame, or mirror any part or content of Proprietary Software; (iv) reverse engineer Proprietary Software; (v) access Proprietary Software in order to build a competitive product or service or to copy any features, functions, or graphics of Proprietary Software; (vi) use Proprietary Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) use the Proprietary Software to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity; (viii) interfere with or disrupt the integrity or performance of the Managed Instances or third-party data contained therein; or (ix) attempt to gain unauthorized access to the Managed Instances.  Licensee shall: (i) be solely responsible for the accuracy, quality, integrity, and legality of and for the means by which IoT Data is acquired; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Proprietary Software to the extent within Licensee’s control, and notify Exosite promptly of any such unauthorized access or use of which Licensee becomes aware; and (iii) use the Proprietary Software only in accordance with the express authorization contained in this Agreement and all applicable laws, rules, and regulations.
4. Intellectual Property Rights.
   1. Exosite Intellectual Property. Licensee acknowledges that Exosite owns all right, title, and interest, including all intellectual property rights, in and to, the Proprietary Software.
   2. Licensee Data. Exosite acknowledges that Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Licensee Data.
   3. Licensee Customer Data. Exosite acknowledges that Licensee Customer owns all right, title, and interest, including all intellectual property rights, in and to the Licensee Customer Data.
   4. Licensee License Grant. Licensee hereby grants to Exosite a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display IoT Data solely to the extent necessary for Exosite to provide the Services for Licensee and Licensee Customers, in accordance with this Agreement.  Licensee hereby grants Exosite a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into Proprietary Software any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee relating to the Proprietary Software.
5. Term and Termination.
   1. Term. The term of this Agreement commences on the date the Licensee accepts the Agreement and continues until it is terminated by either party in accordance with this section.
   2. Termination. Licensee may terminate this Agreement without cause by deleting your Exosite Business Account, subject to the Fees section below. Licensee may terminate the subscription(s) to Services without cause at any time by logging in to your Exosite Business Account and removing the Service for which your Exosite Business Account has billing responsibility, subject to the Fees section below. Exosite may terminate this Agreement at any time without cause upon 30 days written notice or automatically if you fail to comply with any term or condition of this Agreement.
   3. Treatment of Data upon Termination. Upon termination of this Agreement, the data and other information developed while using the Services may be permanently lost. 
6. Fees.
   1. Price. Licensee will pay Exosite the fees ("Fees") as designated online at the time of subscription, or as invoiced based on the applicable Addendum. Licensee is responsible for paying all charges in accordance with the use of the Services associated with Licensee’s Exosite Business Account, even if Licensee did not use or authorize the use of the Services. If Licensee cancels the subscription to the Services before the end of the current term, the cancellation will take effect immediately, but the Licensee shall be responsible for all charges already incurred. There are no refunds or credits for partial months of service, plan downgrades, or months unused.
   2. Invoice Payment Terms. Licensee shall pay invoices within thirty (30) days after the issue date of the invoice, or the respective Services may be suspended or terminated as soon as on day after the date due as indicated on the invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection. Licensee has 30 days after receiving the invoice to dispute any charges. Agreed-upon changes to a past invoice will be reflected in the next applicable invoice to Licensee. If payment has been authorized by credit card, no additional notice or consent will be required for billings to that credit card for all amounts (including late charges and termination fees).
   3. Fee Changes. Exosite reserves the right to annually change the Fees (“Fee Changes”) for all Services, including but not limited to the subscription fees to the IoT Platform.
   4. Taxes. Licensee will pay any and all applicable taxes, however designated, incurred as a result of or otherwise in connection with the Services.
7. Confidentiality.
   1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Licensee Data; Our Confidential Information shall include the Proprietary Software; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
   2. Exceptions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party, as established by documentary evidence, without reference to or use of, in whole or part, any of the Disclosing Party’s Confidential Information.
   3. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, licensees, and agents who need such access for purposes consistent with this Agreement.
   4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
   5. Return or Destruction of Confidential Information. At any time during the Term and upon either Party’s request, the other Party shall promptly return all documents and other materials received, including but not limited to any Confidential Information, and certify in writing as to completion of the same. 
8. Warranties. ALL SERVICES AND PROPRIETARY SOFTWARE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. OTHER THAN ANY EXPRESS WARRANTIES MADE IN SUBSEQUENT PARAGRAPHS IN THIS SECTION, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, WE MAKE NO WARRANTIES REGARDING ANY THIRD-PARTY SOFTWARE OR PRODUCTS PROVIDED TO OR USED BY YOU. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE IOT PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE IOT PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR.
9. Limitation of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS IN THE SECTION ENTITLED “INDEMNITY” BELOW, EACH PARTY HERETO: (I) EXPRESSLY WAIVES ANY AND ALL CLAIMS AGAINST THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOST PROFITS, REVENUES, DATA, OR INTERRUPTIONS IN SERVICE) ARISING OUT OF OR RELATED TO THE PROVISION OF ANY SERVICES OR WORK PRODUCT PURSUANT TO THIS AGREEMENT; AND (II) EXPRESSLY AGREES THE MAXIMUM LIABILITY FOR US WITH RESPECT TO ANY CLAIM RELATED TO THIS AGREEMENT OR THE SERVICES HEREUNDER WILL BE LIMITED TO THE AMOUNT OF FEES RECEIVED BY US FOR SERVICES IN THE PRECEDING THREE MONTHS.
10. Indemnity. EACH PARTY WILL INDEMNIFY, DEFEND, AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF LITIGATION) BY ANY THIRD PARTY RESULTING FROM ANY ACTS OR OMISSIONS OF THE INDEMNIFYING PARTY RELATING TO ITS ACTIVITIES IN CONNECTION WITH THIS AGREEMENT, THEIR BREACH OF THIS AGREEMENT, OR THEIR MISREPRESENTATIONS RELATING TO THE OTHER PARTY, THE SERVICES, OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION.
11. Relationship to the Parties. Licensee and Exosite are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.  Licensee is in no way authorized to make any license, contract, agreement, warranty, or representation on behalf of Exosite, or to create any obligations, expressed or implied, on behalf of Exosite except to the extent and for the purposes expressly provided for and set forth herein Exosite shall control the conditions, time, details, and means by which Exosite performs the Services.
12. General Provisions.
    1. Notices. Any notice to be given under this Agreement will be sufficient if via e-mail to the e-mail address registered to your Exosite Business Account.
    2. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, either written or oral, concerning its subject matter.
    3. Amendment; Waiver. The Parties may not amend this Agreement unless it is in writing and signed by an authorize representative of each Party.  No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver.  No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.  The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
    4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    5. Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    6. Assignment. Neither party may assign any of its interest in this Agreement or any of its duties or rights under this Agreement without the prior written consent of the other, except that either Party may assign its rights and obligations upon advance notice to the other in connection with any merger, acquisition, or sale of all or substantially all of its assets.
    7. Surviving Provisions. Any provision that, in order to give proper effect to its intent, should survive any termination or expiration of this Agreement, will survive such termination or expiration, including but not limited to, Intellectual Property Rights, Confidentiality, Warranties, Limitation of Liability, Indemnity, and General Provisions.