These Terms of Service, as amended from time to time, together with any other terms, agreements and policies referenced herein (which constitute an integral part hereof) (these “Terms”) constitute a legally binding agreement between CoolAutomation Ltd., a company incorporated under the laws of Israel (the “Company”) and the customer executing or otherwise accepting the Order Form which refer to these Terms (respectively, the “Customer” and the “Order Form”). The Terms govern the manner in which the Customer and its users (each, a “User”) may install, use and access the Company’s Platform (as defined below) in a subscription model. These Terms will also govern any future upgrades or updates, or new releases provided by the Company in connection with the Platform unless any such upgrades or updates are accompanied by a separate license, in which case the terms of that separate license will govern. The Order Form may be completed and entered-into in various ways, including online form, in-product screen or an offline form delivered by Customer to the Company, including via mail, email or any other electronic or physical delivery mechanism.

1.The Platform

1.1. Subscription to the Platform.The company provide certain software and hardware-based solutions for automation and control of heating, ventilation, and air conditioning systems (the “HVAC Systems”). The Company solution includes Software-as-a-Service subscription-based mobile application and web-based applications (the “Platform“), which connects to a hardware device integrated with the Customer’s HVAC System (the “Device“), for controlling and monitoring such HVAC system through a proprietary cloud based platform. The Company shall make the Platform available to Customer during the Subscription Term solely to allow the Customer and the Users to monitor and control the HVAC Systems for standard business operations, all as permitted by and subject to these Terms (the “Purpose”). The Platform may not be used in connection with the operation of any hazardous environments, emergency services or critical systems.

1.2.Subscription Limitations. The right to use and access the Platform as set forth in Section 1.1 above, is granted solely to the Customer and its Users, and is limited, non-transferable, non-exclusive, non-assignable and non-sub-licensable  for as long as Customer Account (as defined below) is active. The Platform may only be used by individuals who: (i) can form legally binding contracts under applicable law; and (ii) are at least 18 years old; and (iii) are authorized to use the Platform pursuant to Customer’s procedures and policies (if any).

1.3.Modification or Discontinuation of the Platform. The Company may change or update the Platform at any time, including the availability of any feature, content or database, and may impose limitations or restrictions on certain features and services. In addition, the Company may turn services which have been provided for no consideration into paid services, and may remove or terminate any function, feature or service. In case of a material change, the Company will notify Customer by posting an announcement on the Company’s website, through the Platform or by email. Changes are not expected to have adverse effect on the Customer’s use of the Platform, however, in case of a material adverse effect on the Customer’s use, the Company and the Customer shall negotiate in good faith the ramifications of such change. The Company may offer alternative or additional features to certain Customers, that may not be offered to others.

Registration to the Platform

1.4. Account Registration. In order to use the Platform, each user designated by the Customer (a “User“) shall register and create an account (the “Account”). In the event that a User is the first user of the Platform on behalf of a Customer, such User will automatically be considered the Customer’s administrator (the “Administrator”). Additional Administrators may be added at Customer’s request. The Administrator is considered a representative of the Customer for any and all purposes. The Company reserves the right to refuse a User’s registration or to block User’s access to the Platform, in case of suspected violation of applicable law or breach of the Agreement.

1.5. Account Information. As part of the registration process, Users may be required to provide the Company with certain Personal Data (including, but not limited to, name, phone number, organizational or personal e-mail address, site address, etc.) and to select a password. Each User: (i) agrees to provide the Company with accurate, complete, and updated registration information; (ii) acknowledges that he/she is solely responsible for the activity that occurs on his/her Account; (iii) agrees to keep his/her Account credentials secured; and (iv) undertakes to notify the Company immediately of any breach of security or unauthorized use of his/her Account. Each User will be solely responsible for any losses incurred by the Company or a third party, due to any unauthorized usage of the Account by such User or any other User or third party on his/her behalf.

1.6. Administrator. In the event that a User is the first user of the Platform on behalf of a Customer, such User will automatically be considered the Customer’s administrator (the “Administrator”). Customer may appoint additional Users as Administrators.

1.7. Administrator Control. The Administrator shall have control over all Accounts and may have the ability to: (i) access information about Users’ activities; and (ii) monitor and manage Users’ Accounts. The Administrator may specify additional Users who will gain Administrator privileges.

1.8. Administrator Responsibility. The Administrator is considered a representative of the Customer for any and all purposes and is responsible for the internal management and administration of the Platform within the Customer’s Accounts. In addition, the Administrator is responsible for: (i) restrict or change the scope of credentials and permissions of the Accounts; (ii) designating those individuals who are authorized to access the Accounts; (iii) obtaining all needed User consent for the processing of Personal Data, and (iv) performing monitoring to ensure the protection of Customer’s Users’ privacy and compliance with applicable law.

Customer represents, warrants, and covenants that it and its System Administrator and Users will only use the Services and licensed materials in a manner that complies with all applicable laws, regulations, rules, and other authorities. Customer and its System Administrator and Customer Users shall not use the licensed materials or the Services to collect, store, receive, process, use, disclose, manipulate, track or distribute any information, including Customer Data, or otherwise interact with any individual in violation of applicable laws, regulations, rules, and other authorities.

1.9. Users. Customer shall be solely responsible for any claims, requests and demands by Users or any other third party related to the Customer, including, without limitation, the Customer’s customers. Customer shall be responsible for all acts or omissions of Users which are related or affiliated with the Customer, including, without limitation, acts or omissions of Users which belong to the Customer’s organization.

2.License to Customer Data

While using the Platform, certain data may be uploaded or transferred to the Platform to be processed by the Platform on the Customer’s behalf, including data and information transmitted or otherwise made available by the Device (the “Customer Data”). As between the Customer and the Company, except as explicitly set forth herein, all rights in the Customer Data shall remain with Customer. Users must follow the Customer’s policies, guidelines and procedures concerning any use or transfer of Customer Data via the Platform. Customer hereby grants the Company and its Sub-processors an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, copy, download, store, distribute and display the Customer Data, solely for the purpose of maintaining and providing the Platform and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer. Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals and permissions to grant the Company the aforementioned right and license and to authorize the Company and its Sub-processors to access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to data privacy or data transfer and export or any policies and terms governing such Customer Data; and (iii) no sensitive data that is protected under a special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Platform.

3.Intellectual Property and Right to Use

3.1.Company Intellectual Property. All right, title and interest in the Platform, including without limitation, any content, materials, hardware, software, know-how, data files, documentation, code, SDK, API, design, text, media, methodologies, artwork, names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any updates, new versions, modifications, improvements, developments or derivatives thereof, are the property of the Company and its licensors and these Terms do not convey to the Customer or the Users any interest in or to the Platform, except for a limited right of use as set forth herein, terminable in accordance with these Terms. For the removal of doubt, all photos, texts, scripts, designs, graphics, logos, audios, videos, songs, interactive features, trademarks, service marks, trade names and other content used, displayed, included, incorporated, uploaded, posted or published by the Company, as part of the Platform, are the sole property of the Company, subject to copyright and other intellectual property rights under applicable laws, and Customer may not use, download, distribute and/or copy them, in whole or in part.

3.2.Prohibited Use. Customer and its Users may not, and may not permit or aid others to: (i) use the Platform for any purpose other than the Purpose; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Platform or any part of it; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, including, but not limited to Customer’s affiliates, or use the Platform in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Platform or any part thereof, or extract source code from the object code of the Platform, or access or use the Platform in order to build a competing product or service; (v) bypass any measures the Company may use to prevent or restrict access to the Platform, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Platform; (vi) access the Platform or Company’s systems via any means other than through the interface provided by the Company, or via automated means, including by crawling, scraping, caching or otherwise; (vii) use the Platform in any manner that is illegal or not authorized by these Terms; (viii) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or Company’s service providers’) infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Platform; (x) remove, deface, obscure, or alter Company’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform; (xi) provide any third party access to the Platform; (xii) provide public access to results obtained by the Platform; or (xiii) use the Platform in connection with the operation of any hazardous environments, emergency services or critical systems. Customer will be fully liable for the acts, omissions, or violation of these Terms by its Users; (xiv) infringe the rights of any other person, including intellectual property rights (for example, any patent, trademark, trade secret, copyright, or other proprietary rights) or rights of publicity or privacy; (xv) violate any applicable law, regulation, ordinance, or guideline; (xvi) engage in any action or practice that reflects poorly on The Company or otherwise disparages or devalues The Company’s reputation or goodwill;

3.3.Feedback. Customer shall notify the Company of any and all design or functional errors, anomalies, and problems associated with the Platform discovered or brought to its attention by its Users, and may provide the Company suggestions, comments or any other feedback regarding the Platform (the “Feedback”). Any such Feedback shall become the Company’s sole property without any restrictions. The Company may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer hereby assigns to Company all right, title, and interest worldwide in the Feedback and any intellectual property rights related thereto, and explicitly and irrevocably waives any and all claims associated therewith. Customer shall not provide the Company with any Feedback which infringes any third party right.

3.4.Intellectual Property Infringements. The Company does not permit infringement of intellectual property rights via the Platform. To file an infringement notification, please send a written communication to support@coolautomation.com and the Company will follow with additional instructions. In the event that the Company believes that the Platform, or any part thereof, may infringe intellectual property rights of third parties, then the Company may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the allegedly infringing part of the Platform; (ii) replace or modify the allegedly infringing part of the Platform so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the Company determines that the foregoing remedies are not reasonably available, then the Company may require that use of the allegedly infringing Platform or part thereof shall cease and in such an event Customer shall receive a prorated refund of any Fees paid for the unused portion of the Subscription Term. THIS SECTION STATES COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR ANY SUPPORTING SERVICES AND UNDERLYING TECHNOLOGY.

3.5.Although The Company has no obligation to monitor use of the Platform, The Company may do so and may prohibit any use of the Platform in a way The Company believes may be (or is alleged to be) in violation of applicable laws, regulations, or these Terms.

4.Privacy; Data Protection; Anonymous Information

4.1.Operating and using the Platform includes the processing of information that constitutes “Personal Data” as defined by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”). Customer shall be deemed to be the “Data Controller” or “Data Owner” as these terms are understood under the Applicable Data Protection Law.

4.2.If, upon registration to the Service, User confirms consent to receive promotional information and/or offers by Us, We shall be entitled to use certain aspects of the Personal Data for promotional purposes, such as to offer you additional products or services. If by mistake You receive direct marketing or promotional information without your specific prior consent and / or wish to opt-out, you are required to contact us at: support@coolautomation.com.

4.3.Privacy Policy; DPA. Customer acknowledges and agrees that the use of the Platform by the Customer and the Users is governed by the Company’s Privacy Policy available at: https://coolautomation.com/privacy-policy/ (“Privacy Policy”). The Privacy Policy shall constitute an integral part of these Terms. Customer acknowledges and agrees that the Company may use Personal Data that the Customer provides or make available to the Company in accordance with the Privacy Policy. Customer is obligated to cooperate with the Company on any Privacy or Security issue derived from the use of or access to the services. Including, as reasonably required, implement privacy or security measures as may be needed to maintain the Company privacy and security level.

4.4.Transferring Personal Data. We are processing and transferring any Personal Data that we may collect or obtain in connection with the Terms in accordance with our Privacy Policy (https://coolautomation.com/privacy-policy/). In addition to the many security and privacy controls that the Company have put in place, the Company also uses the EU’s Standard Contractual Clauses (SCC) as a valid transfer mechanism according to the GDPR when transferring Personal Data outside of the EU or adequate level countries.
4.5.Anonymous Information. The Company may collect, monitor and use Anonymous Information (as defined below), inter alia to provide, develop, maintain, improve, demonstrate and market the Platform. “Anonymous Information” means information about use of the Platform and information received from the Devices, which does not enable identification of an individual, such as aggregated data, metadata and analytic information.

5.Third Party Software and Services

5.1.Sub-processors. Customer acknowledges that the Platform is hosted and made available by certain sub-processors of the Company (the “Sub-processors”), which process Customer Data. The Company may remove, add or replace its Sub-processors from time to time, at its sole discretion
5.2.Free Software. The Platform may include third party “open source” or “Free Software” components that are subject to third party terms and conditions (“Third Party Terms”). By using the Platform Customer agrees to the Third Party Terms. If there is a conflict between any Third Party Terms and the terms of these Terms, then the Third Party Terms shall prevail but solely in connection with the related third party component. The Company represents and warrants that it is in compliance with the notice and attribution aspects of the Third Party Terms. The license terms, copyright notices and available source code with respect to Third Party Terms can be found at https://coolautomation.com/3rdPartyTerms/.

5.3.Other Products and Services. The Platform may contain links to other third-party services or may enable Customer and its Users to access, engage and procure certain services and products provided by third parties (the “Third Party Services”). Customer acknowledges and agrees that regardless of the manner in which such Third Party Services may be presented or offered to Customer, Company does not endorse any such Third Party Services or shall be in any way responsible or liable with respect to any such Third Party Services. BY ACCESSING AND/OR USING THE THIRD PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY SERVICE ARE IN COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION.

6.Customer’s Obligations

6.1.Sub-processors. Customer acknowledges that the Platform is hosted and made available by certain sub-processors of the Company (the “Sub-processors”), which process Customer Data. The Company may remove, add or replace its Sub-processors from time to time, at its sole discretion.

6.2.Customer Infrastructure. Customer shall be solely responsible for obtaining, maintaining and operating Customer or Users’ devices (including, without limitation, smartphones, tablets and computers), and any related equipment, hardware, software, network, communication lines and internet access (including the communication and internet access of the Devices) (the “Customer’s Infrastructure”) necessary in order to access and use the Platform. Customer shall be solely responsible and liable for any fees charged by third parties in connection with the Customer’s Infrastructure. Customer’s Infrastructure shall, at minimum, meet the specifications required by the Company. WITHOUT LIMITING THE GENERALITY OF THE AFOREMENTIONED, THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE HOSTING, STORAGE OR TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND TO THE PERFORMANCE OF ANY THIRD-PARTY HOSTING, COMMUNICATION OR STORAGE PROVIDER, AND THE CUSTOMER ACKNOWLEDGES THAT THE PLATFORM AND ANY RELATED SERVICES MAY BE SUBJECT TO INTERRUPTIONS, LIMITATIONS, DELAYS AND OTHER RISKS ASSOCIATED WITH THE USE OF SUCH HOSTING, STORAGE AND COMMUNICATIONS FACILITIES.

6.3.Account Passwords and Data Security. Customer shall maintain and cause to be maintained the confidentiality of all User IDs and passwords of the Customer’s Users, including implementing and enforcing policies and procedures as reasonable and appropriate thereto, and Customer at all times shall maintain (and shall cause any Affiliate having Customer Users to maintain) adequate technical, physical, and administrative safeguards, including access controls and system security requirements and devices, to ensure that access to the services by or through Customer is limited to Customer Users. Customer shall be solely responsible for all use or misuse of the user IDs of Customer Users, and except as otherwise required by applicable law The Company shall have no obligation to monitor for or report any use or attempted use of the user IDs of Customer Users. All such user IDs and passwords are deemed to be Confidential Information of both Customer and The Company. Customer shall take reasonable steps to ensure that Customer Users do not share user IDs or passwords. Customer shall be responsible for maintaining the user ID and resetting the password for the Administrator if the person responsible for such account for Customer is terminated or otherwise is no longer eligible to use the services.

7.Subscription; Payments

7.1.Subscription Term and Fees. The Platform is provided on a subscription basis for the term specified in Customer’s Order Form (the “Subscription” and the “Subscription Term”). During the Subscription Term Customer shall pay the Company the applicable subscription fees and one-time fees set forth in the Order Form (respectively, the “Subscription Fees” and the “One-time Fees”, and together – the “Fees”). Unless expressly set forth herein, the Fees are non-cancelable and non-refundable. The Company reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable Subscription Term. Unless expressly indicated otherwise, Fees are stated in US dollars.

7.2.Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription shall automatically renew by default, unless canceled by either the Company or the Customer at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fee.

7.3.Taxes. The Fees are exclusive of (i) shipping and handling, (ii) cellular communication and internet access, and (iii) any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms (the “Taxes”), except for income tax imposed on the Company. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to the Company, Customer shall promptly notify the Company in writing and the Company shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Fees payable by Customer.

7.4.Payment. The Fees set forth in each Order Form are final. Unless otherwise set forth in the Order Form, the Subscription Fees shall be paid annually, in advance, within thirty (30) days of invoice, and the One-time Fees shall be paid within thirty (30) days of invoice. All Fees are non-cancelable and non-refundable, unless required otherwise by mandatory law. Delinquent payments may bear compounded interest, as of the payment due date and until paid in full, at a rate equal to the lower of: (i) 1.5% per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy to which the Company may be entitled. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by the Company in collecting any payment. The Platform shall be made available to Customer for the applicable Subscription Term only following receipt by the Company of the amounts due by Customer.

7.5.Payment Processing. Customer hereby authorizes the Company, either directly or through the Company’s payment processing services, to charge the Fees via Customer’s selected payment method, upon the due date. Payments processed by a third party are in such third party’s exclusive responsibility and are subject to such third party’s terms and conditions. Customer agrees that such third party’s terms and conditions shall apply to Customer’s payment of the Fees. Customer hereby authorizes third-party payment processor to provide data and information to the Company. The Company shall be free to replace the payment processor service from time to time or process payments itself.

7.6.Credit Card. Credit card details may be needed to complete an order, and the Platform will be available to Customer following successful completion of billing. Customer will be notified accordingly. Customer authorizes the Company to continue to charge its credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge Customer’s card does not derogate from Customer’s payment obligation.

8.Terms of Sale of Devices

8.1.Prices; Title. The One-time Fees for the Devices are quoted Ex-Works (Incoterms 2010) as set forth in the Order Form (or otherwise as set forth in the Order Form). Title to a Device shall pass to Customer only upon the full payment therefor and the risk shall pass upon delivery.

8.2.Exclusive Purchase. The Platform may be used solely with the Company’s Devices, which the Customer shall purchase exclusively from the Company.

8.3.Warranty. Other than as explicitly set forth in the warranty provided with the Devices, the Devices are non-returnable and non-refundable, and cannot be returned upon termination or expiration of the Subscription Term.

9.Termination

9.1.Termination for Cause. A breach of obligations by either party hereto which is not cured within 10 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate the Subscription by written notice. If a party files for petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate the Subscription immediately by written notice.

9.2.Termination or Suspension by Company. Company may terminate or suspend Customer’s use of and access to the Platform (or any part thereof) immediately, without prior notice or liability, if Customer breaches, or fails to comply with, any of the provisions contained in these Terms, and in each of the following events: (i) the Company believes, in its sole discretion, that Customer, a User or any third party is using the Platform in a manner that may impose a security risk, may cause harm to the Company or any third party, and/or may create any liability to the Company or any third party; (ii) if the Company believes, in its sole discretion, that Customer, a User or any third party is using the Platform in breach of these Terms or applicable laws; or (iii) if the Company is unable to charge the Fees through Customer’s approved payment means or if any payment is or is likely to become, overdue. The aforementioned rights are in addition to any rights and remedies that may be available to the Company accordance with these Terms and/or applicable law.

9.3.Termination by Customer. Customer may terminate its Subscription to the Platform by cancelling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer’s obligation to pay the applicable Fees for the Subscription Term.

9.4.Effect of Termination. Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to Customer and the Users hereunder shall terminate, and Customer and the Users shall cease to have access to the Platform and any Customer Data and shall remove any Platform components from Customer’s systems and from any appliance on which such components were installed. Customer is solely responsible to export all available Customer Data prior to such termination or expiration, and following termination or expiration, the Company may delete the Customer Data without retaining any copy thereof. In addition, Customer shall return or destroy, at Company’s choice, Company’s Confidential Information then in Customer’s possession and Customer shall have no claim against the Company in this regard.

9.5.Survival. All the provisions of these Terms which by their nature should survive termination (including, without limitation, confidentiality, ownership and intellectual property, indemnification, warranty disclaimers and limitations of liability) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or limit any liability which Customer otherwise may have to the Company.

10.Confidentiality

10.1.Confidential Information. For purposes of these Terms, the term “Confidential Information” shall mean any and all non-public business, product, technology and marketing data and information, whether written, oral or in any other medium, including Personal Data, disclosed or otherwise provided by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is already known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information; or (e) is compelled to be disclosed pursuant to a court order, provided that the Receiving Party provides the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested.

10.2.Confidentiality Obligations. Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable , generally accepted industry standards, including the use of appropriate administrative, physical and technical safeguards, to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party’s interests. Receiving party’s obligations with respect to Confidential Information shall expire seven (7) years from the date of termination or expiration of the last Subscription Term, unless under applicable law a longer period of protection applies; and (iv) it shall report to the Company without unreasonable delay any act or attempt by any person of which Receiving Party has knowledge or reasonably suspects (a) to use or disclose, or copy Confidential Information without authorization from the other party or (b) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information.

10.3.Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise reasonable efforts to obtain appropriate assurance that confidential treatment will be accorded the Confidential Information so disclosed.

11.Confidentiality

11.1.EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE PLATFORM AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE. COMPANY DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY CUSTOMER AS A RESULT OF CUSTOMER USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THESE TERMS.

11.2.COMPANY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE PLATFORM AND CUSTOMER’S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT.

12.Limitation of Liability

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

12.1.IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES; (II) LOSS OF OR DAMAGE TO CUSTOMER’S SYSTEMS, DEVICES, DATA, INFORMATION, GOODWILL, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER COMPANY, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).

12.2.CUSTOMER SPECIFICALLY AGREES THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE PLATFORM, OR FOR ANY INFRINGEMENT OR VIOLATION OF CUSTOMER’S RIGHTS BY ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, PRIVACY RIGHTS.

12.3.TO THE EXTENT PERMITTED BY LAW, COMPANY’S AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE FEES PAID TO THE COMPANY FOR USE OF THE PLATFORM IN THE SIX MONTHS PRECEDING THE CAUSE OF THE CLAIM.

13.Indemnification

Customer shall defend, indemnify, and hold harmless the Company and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, liabilities, loss, reasonable expense or costs (collectively, “Losses”) incurred as a result of any claim (i) resulting from Customer’s breach of these Terms or any applicable law; (ii) any misuse of the Platform; or (iii) any claim by a User resulting from any act or omission of the Customer.

Miscellaneous

14.1.Compliance. The Customer is solely responsible for the Customer and the User’s compliance with applicable laws and these Terms.

14.2.Amendments. The Company reserves the right to change these Terms at any time by posting a new version at https://coolautomation.com/terms-of-service/. In the event of a material change, Company shall notify the Customer by posting a notice in the Platform or in the Company’s website, or by sending the Customer an email. Any such modifications shall become effective immediately upon posting.

14.3.Export Control. The Platform may be subject to U.S., UK and foreign export controls, Laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Platform (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Platform.

14.4.Force Majeure. Neither Company nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, pandemic, acts of God, war, terrorism, and governmental action.

14.5.Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of England and Wales, without reference to its conflict of law provisions and excepting from any international protocols that may affect this type agreement. All disputes arising from or relating to this Agreement shall be irrevocably submitted to binding arbitration before a single arbitrator, to be conducted in London, England, in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in affect, which rules are deemed to be incorporated by reference into this clause. In case the parties do not agree on the identity of the arbitrator, the arbitrator will be appointed by the ICC International Court of Arbitration. The language of the arbitration shall be English. The arbitration will be conducted by video conference, unless the parties agree otherwise.

14.6.Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAWS, CUSTOMER AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and the Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

14.7.Entire Agreement. These Terms (and the other terms, agreements and policies referenced herein) constitute the entire Agreement between Customer and the Company with respect to Customer’s use of the Platform and supersede all prior or contemporaneous understandings regarding such subject matter (the “Agreement”).

14.8.Assignment. Company may assign at any time any of its rights and/or obligations hereunder to any third party without Customer’s consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Company, and any attempt by a Customer to do so shall be deemed null and void.

14.9.Relationship of the Parties; No Third Party Beneficiaries. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to these Terms.

14.10.Severability. In the event that a court of competent jurisdiction finds any provision of these Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.

14.11.No Waiver. The failure of the Company to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Company in writing.

For any questions or queries about these Terms or the Platform in general, please do not hesitate to contact us at the following e-mail address: support@coolautomation.com

Last Updated: May 2023