This MeshCloud AEP Enterprise Subscription Agreement (“Agreement”) is entered into as of the Effective Date specified in the applicable Order Form between Mesh Systems LLC (“Mesh”) and the customer identified in the applicable Order Form (“Customer”). 

Mesh and Customer may each be referred to individually as a “Party” and collectively as the “Parties.” 

Section 1 – Definitions 

For purposes of this Agreement, the following terms shall have the meanings set forth below. 

1.1 Affiliate 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting interests of such entity or the ability to direct its management or policies. 

1.2 Authorized Deployment 

“Authorized Deployment” means a deployment instance of the Platform within the Customer Environment. Unless otherwise specified in an applicable Order Form, Authorized Deployments include: 

• one (1) development environment;  

• one (1) QA environment; 

• one (1) staging environment; and 

• up to five (5) production environments to support regional deployments. 

Additional deployment environments may be authorized by mutual written agreement of the parties. 

1.3 Customer Environment 

“Customer Environment” means the cloud computing environment controlled by Customer within Customer’s Microsoft Azure tenant in which the Platform is deployed and operated. 

1.4 Documentation 

“Documentation” means the technical documentation, user guides, and operational materials provided by Mesh describing the installation, configuration, operation, and use of the Platform. 

1.5 Permitted Product Family 

“Permitted Product Family” means the specific connected product family, product line, or IoT-enabled program identified in the applicable Order Form for which Customer is authorized to use the Platform under this Agreement, including successor models, revisions, and substantially similar products within that product family. 

1.6 Platform 

“Platform” means Mesh’s MeshCloud IoT Application Enablement Platform software, including its components, modules, configuration scripts, and associated Documentation provided by Mesh under this Agreement. 

1.7 Platform Subscription 

“Platform Subscription” means the right to access, deploy, use, and operate the Platform, including updates, maintenance, and support, during the applicable Subscription Term. 

1.8 Source Code 

“Source Code” means the human-readable version of the Platform software, including associated build scripts and configuration files provided by Mesh to Customer. 

1.9 Order Form 

“Order Form” means a written ordering document executed by the parties that references this Agreement and specifies the commercial terms applicable to Customer’s Platform Subscription. 

Section 2 – License Grant 

2.1 License Grant 

Subject to the terms of this Agreement and payment of the applicable Subscription Fees, Mesh grants Customer a non-exclusive, non-transferable, worldwide license during the applicable Subscription Term to install, deploy, operate, and use the Platform within the Customer Environment solely in connection with the Permitted Product Family. 

Customer may permit its Affiliates to exercise the rights granted under this Section provided that: 

(a)  such use is solely in connection with the Permitted Product Family; 

(b)  all use occurs within the Authorized Deployments; and

(c)  Customer remains responsible for the acts and omissions of its Affiliates.

The license granted under this Section is term-limited and shall automatically terminate upon expiration or termination of this Agreement. 

Customer acknowledges that the Platform is licensed, not sold. 

2.2 Authorized Deployments 

Customer may deploy and operate the Platform only within the Authorized Deployments unless additional deployments are approved by Mesh in writing. 

2.3 Scope of Use 

Customer may use the Platform solely: 

(a)  within the Customer Environment; 

(b)  in connection with the Permitted Product Family; and 

(c)  for Customer’s internal business operations related to its connected products. 

2.4 Source Code 

Customer acknowledges that access to Source Code is not included as part of the Platform Subscription. 

Mesh shall have no obligation to provide Source Code under this Agreement unless expressly set forth in an applicable Order Form executed by the parties. 

Any such access, if granted, shall be subject to additional terms and conditions specified in the applicable Order Form. 

2.5 Restrictions 

Customer shall not: 

(a)  provide the Platform as a hosted or SaaS service to third parties; 

(b)  use the Platform to operate an IoT platform service for third parties; 

(c)  develop or offer a competing IoT platform using the Platform or Source Code; 

(d)  remove proprietary notices; or 

(e)  use the Platform outside the Permitted Product Family. 

2.6 Reservation of Rights 

Except for the rights expressly granted, Mesh retains all right, title, and interest in and to the Platform and Source Code. 

Section 3 – Platform Subscription 

3.1 Platform Subscription 

Mesh grants Customer a Platform Subscription during the applicable Subscription Term, which includes access to the Platform and updates, maintenance, and support services made generally available by Mesh. 

The Platform Subscription includes the following baseline services, unless otherwise specified in the applicable Order Form: 

• Technical support; 

• Bug fixes and maintenance releases; 

• Security updates and patches; 

• Compatibility updates for Microsoft Azure; and 

• Deployment and operational tooling updates. 

The scope, service levels, and specific support commitments applicable to Customer may be further defined or modified in the applicable Order Form, and in the event of any conflict, the terms of the Order Form shall control with respect to such support services. 

3.2 Subscription Term 

Customer shall subscribe to the Platform for the initial Subscription Term specified in the applicable Order Form. 

3.3 Renewal 

The Subscription Term shall automatically renew for successive one (1) year periods unless either party provides at least ninety (90) days’ written notice of non-renewal. 

3.4 Scope of Subscription 

Mesh shall have no obligation to support issues arising from Customer’s unauthorized modifications to the Platform or from Customer-developed applications, integrations, or configurations, except to the extent otherwise agreed in writing by the parties. 

3.5 Access to Updates 

During an active Subscription Term, Customer receives all generally available updates and security patches. 

3.6 Expiration of Subscription 

Upon expiration or termination of the Subscription Term: 

• Customer’s right to access and use the Platform immediately terminates; and 

• Mesh shall have no obligation to provide access, updates, or support. 

Section 4 – Fees and Payment Terms 

4.1 Subscription Fees 

Customer shall pay the Subscription Fees specified in the Order Form. 

4.2 Payment Terms 

Subscription Fees shall be invoiced and payable in accordance with the terms specified in the applicable Order Form. 

4.3 Usage Parameters 

Customer’s use of the Platform may be subject to additional usage parameters specified in the applicable Order Form, including but not limited to limits on the number of connected devices, message volumes, or other usage metrics. 

Customer agrees to operate within such limits. 

If Customer exceeds the applicable usage limits, the parties shall work in good faith to adjust the applicable subscription tier and fees. 

4.4 Additional Product Families and Deployments 

Additional Product Families and Deployments may require additional fees and an Order Form. 

4.5 Taxes 

Fees exclude applicable taxes. 

4.6 Late Payments 

Late payments may accrue interest at 1% per month or the maximum permitted by law. 

4.7 Suspension 

Mesh may suspend Platform Subscription for non-payment after 30 days written notice. 

Section 5 – Ownership and Intellectual Property 

5.1 Ownership of the Platform 

Mesh and its licensors retain all right, title, and interest in and to the Platform, the Source Code, the Documentation, and all related intellectual property rights, including any updates, enhancements, or improvements thereto provided by Mesh. 

Except for the limited rights expressly granted under this Agreement, no rights are granted to Customer by implication, estoppel, or otherwise. 

5.2 Customer Applications, Integrations, and Data 

As between the parties, Customer retains all right, title, and interest in and to: 

(a)  Customer’s products, services, and connected devices; 

(b)  Customer data; and 

(c)  applications, integrations, configurations, workflows, dashboards, and other materials created by or for Customer that utilize or interface with the Platform but do not incorporate or constitute the Platform or Source Code. 

Nothing in this Agreement shall be interpreted as transferring ownership of the Platform or any portion thereof to Customer. 

5.3 No Distribution of Platform 

Except as expressly permitted under this Agreement, Customer shall not distribute, sublicense, or otherwise make the Platform or Source Code available to any third party. 

Customer may permit contractors or service providers acting on its behalf to access the Platform solely for purposes of supporting Customer’s permitted use of the Platform, provided that such parties are bound by written confidentiality and use restrictions at least as protective as those set forth in this Agreement. 

5.4 No Competing Platform 

Customer shall not use the Platform or Source Code to develop, offer, or operate a commercially distributed software platform that is substantially similar to and competitive with Mesh’s IoT platform offerings. 

This restriction shall not prevent Customer from developing applications, services, integrations, or internal systems that utilize or interface with the Platform for the operation, management, or support of Customer’s connected products within the Permitted Product Family. 

5.5 Reservation of Rights 

All rights not expressly granted to Customer under this Agreement are reserved by Mesh. 

5.6 Feedback 

Customer may from time to time provide suggestions, comments, or feedback to Mesh regarding the Platform (“Feedback”). Customer agrees that Mesh may use, disclose, reproduce, license, or otherwise exploit such Feedback without restriction or obligation to Customer. 

Section 6 – Confidentiality 

6.1 Definition of Confidential Information 

For purposes of this Agreement, “Confidential Information” means any non-public or proprietary information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement, whether disclosed in written, electronic, oral, or other form, including but not limited to: 

• the Platform and Source Code; 

• software architecture and technical documentation; 

• product roadmaps and development plans; 

• business and technical processes; 

• pricing and commercial terms; 

• and any other information that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. 

Mesh Confidential Information includes, without limitation, the Platform, Source Code, Documentation, and any non-public aspects of the Platform’s design, architecture, structure, workflows, interfaces, or performance. 

6.2 Obligations of Confidentiality 

The Receiving Party shall: 

(a)  use the Confidential Information solely for purposes of performing or exercising its rights under this Agreement; 

(b)  protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar importance, but no less than a reasonable standard of care, including reasonable administrative, technical, and organizational safeguards; and 

(c)  not disclose the Confidential Information to any third party except to its employees, contractors, or advisors who have a legitimate need to know such information for purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein. 

The Receiving Party shall be responsible for any breach of this Section by its employees, contractors, or advisors. 

6.3 Exclusions 

Confidential Information shall not include information that the Receiving Party can demonstrate: 

(a)  was publicly available at the time of disclosure or becomes publicly available through no breach of this Agreement; 

(b)  was lawfully known to the Receiving Party prior to disclosure by the Disclosing Party; 

(c)  is lawfully received from a third party without breach of any confidentiality obligation; or 

(d)  is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. 

6.4 Required Disclosure 

If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, the Receiving Party shall, to the extent legally permitted: 

(a)  provide prompt written notice to the Disclosing Party; and 

(b)  cooperate with the Disclosing Party’s efforts to seek protective treatment for such information. 

6.5 Defend Trade Secrets Act Notice 

Notwithstanding the foregoing, pursuant to the U.S. Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: 

(a)  is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or 

(b)  is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. 

If an individual files a lawsuit for retaliation by an employer for reporting a suspected violation of law, the individual may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. 

6.6 Survival 

The obligations set forth in this Section shall survive termination or expiration of this Agreement for a period of five (5) years, provided that obligations related to trade secrets shall survive for so long as such information remains a trade secret under applicable law. 

6.7 Equitable Relief 

The parties acknowledge that unauthorized use or disclosure of Confidential Information may cause irreparable harm. The Disclosing Party may seek injunctive relief in addition to other remedies. 

Section 7 – Indemnification 

7.1 Mesh Indemnification 

Mesh shall defend Customer against any third-party claim brought against Customer alleging that the unmodified Platform, when used in accordance with this Agreement, directly infringes a valid U.S. patent, copyright, or trade secret of such third party. 

Mesh shall indemnify and hold Customer harmless from any damages, costs, and reasonable attorneys’ fees finally awarded against Customer by a court of competent jurisdiction or agreed to in settlement by Mesh arising from such claim. 

The foregoing obligations are conditioned upon Customer: 

(a) promptly notifying Mesh in writing of the claim; 

(b) granting Mesh sole control of the defense and settlement of the claim; and 

(c) providing reasonable cooperation in the defense of the claim at Mesh’s expense. 

Mesh shall not settle any claim in a manner that imposes liability or obligation on Customer without Customer’s prior written consent, which shall not be unreasonably withheld. 

7.2 Infringement Remedies 

If the Platform becomes, or in Mesh’s opinion is likely to become, the subject of an infringement claim, Mesh may, at its option and expense: 

(a)  procure for Customer the right to continue using the Platform; 

(b)  modify or replace the Platform so that it becomes non-infringing while maintaining substantially equivalent functionality; or 

(c)  if neither of the foregoing is commercially reasonable, terminate the affected portion of the Subscription Fees attributable to the affected functionality. 

7.3 Exclusions from Mesh Indemnification 

Mesh shall have no obligation under Section 7.1 to the extent that a claim arises from: 

(a)  modifications to the Platform made by Customer or any third party not authorized by Mesh; 

(b)  use of the Platform outside the scope of the Permitted Product Family or Authorized Deployments; 

(c)  combination of the Platform with products, services, or technologies not provided by Mesh where the claim would not have arisen but for such combination; and 

(d)  use of a version of the Platform that is no longer supported when a non-infringing version has been made available by Mesh. 

7.4 Customer Indemnification 

Customer shall defend Mesh against any third-party claim arising from: 

(a)  Customer’s use of the Platform in violation of this Agreement; 

(b)  Customer’s unauthorized modifications to the Platform or any use of the Platform not permitted under this Agreement; 

(c)  Customer’s products, services, or connected devices, including claims related to their operation, safety, or regulatory compliance; or 

(d)  Customer’s use of the Platform in connection with technologies, data, or materials provided by Customer or third parties. 

Customer shall indemnify and hold Mesh harmless from damages, costs, and reasonable attorneys’ fees finally awarded or agreed in settlement arising from such claims. 

7.5 Exclusive Remedy 

This Section 7 states the parties’ exclusive remedies and entire liability for any third-party claims related to intellectual property infringement arising from the Platform. 

Section 8 – Limitation of Liability 

8.1 Exclusion of Indirect Damages 

To the fullest extent permitted by law, neither party shall be liable to the other party for any indirect, incidental, consequential, special, or punitive damages, or for any loss of profits, loss of revenue, loss of business opportunity, loss of data, or business interruption, arising out of or related to this Agreement, regardless of the theory of liability and even if the party has been advised of the possibility of such damages. 

8.2 Limitation of Liability 

Except for the obligations arising under Section 7 (Indemnification) or Section 6 (Confidentiality), the total aggregate liability of either party arising out of or relating to this Agreement shall not exceed the total fees paid or payable by Customer to Mesh under this Agreement during the twelve (12) months preceding the event giving rise to the claim. 

8.3 Scope of Limitations 

The limitations set forth in this Section apply to all claims and causes of action, whether arising in contract, tort (including negligence), strict liability, or otherwise. 

Section 9 – Term and Termination 

9.1 Term of Agreement 

This Agreement shall commence on the Effective Date and continue for the duration of the applicable Subscription Term unless terminated earlier in accordance with this Section. 

9.2 Termination for Material Breach 

Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach. 

If Customer materially breaches the license restrictions set forth in this Agreement, Mesh may terminate the license granted under Section 2 upon written notice. 

9.3 Effect of Termination 

Upon expiration or termination of this Agreement for any reason: 

(a) the license granted to Customer shall terminate; 

(b) Customer shall cease all use of the Platform; 

(c) Customer shall destroy or return all copies of the Platform and Documentation in its possession or control; and 

(d) Customer shall have no further rights to access or use the Platform following termination or expiration of this Agreement 

9.4 No Continued Use 

Customer shall not operate or use the Platform following expiration or termination of this Agreement. 

9.5 Survival 

The following provisions shall survive expiration or termination of this Agreement: 

• Section 2 (License Grant) (to the extent applicable during the Subscription Term); 

• Section 5 (Ownership and Intellectual Property); 

• Section 6 (Confidentiality); 

• Section 7 (Indemnification); 

• Section 8 (Limitation of Liability; 

• Fees owed but unpaid; and 

• Any other provisions that by their nature are intended to survive. 

Section 10 – Compliance Verification 

10.1 Verification of License Scope 

Upon reasonable written notice and no more than once in any twelve (12) month period, Mesh may request reasonable information necessary to verify Customer’s compliance with the scope of the license granted under this Agreement, including compliance with the Permitted Product Family and Authorized Deployments. 

Customer shall cooperate in good faith with such requests and may satisfy such request by providing a written certification signed by an authorized representative confirming Customer’s compliance with the license scope. 

10.2 Resolution of Non-Compliance 

If the parties determine that Customer’s use of the Platform exceeds the scope permitted under this Agreement, the parties shall work in good faith to promptly address such use, which may include execution of an additional Order Form covering the applicable product family or deployment environments. 

10.3 Scope of Verification 

Any verification conducted under this Section shall: 

(a) be limited to information reasonably necessary to confirm compliance with the license scope; 

(b) not require access to Customer’s internal systems, source code repositories, or unrelated confidential information; and 

(c) be conducted in a manner that minimizes disruption to Customer’s business operations. 

Section 11 – Miscellaneous 

11.1 Independent Contractors 

The parties are independent contractors, and nothing in this Agreement shall be deemed to create any partnership, joint venture, agency, or employment relationship between the parties. 

Neither party has authority to bind the other party or incur obligations on the other party’s behalf. 

11.2 Assignment 

Customer may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Mesh, which shall not be unreasonably withheld. 

Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of substantially all of its assets, provided that the assigning party provides written notice of such assignment. 

Any attempted assignment in violation of this Section shall be void. 

This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. 

11.3 Force Majeure 

Neither party shall be liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations) if such delay or failure results from events beyond the party’s reasonable control, including acts of God, natural disasters, war, terrorism, civil disturbances, labor disputes, failures of utilities or telecommunications networks, or governmental actions. 

The affected party shall promptly notify the other party of the event and use reasonable efforts to resume performance as soon as practicable. 

11.4 Notices 

All notices required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by a nationally recognized overnight courier, or sent by certified or registered mail (return receipt requested) to the addresses specified in the applicable Order Form or to such other address as either party may designate by written notice. 

11.5 Entire Agreement 

This Agreement, together with any applicable Order Forms, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, negotiations, or understandings, whether written or oral, relating to such subject matter. 

11.6 Amendment 

This Agreement may be amended only by a written document signed by authorized representatives of both parties. 

11.7 Waiver 

The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect the right to require such performance at any later time. 

Any waiver of a breach must be in writing and shall not be deemed a waiver of any subsequent breach. 

11.8 Severability 

If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect, and the invalid provision shall be interpreted so as to best accomplish the original intent of the parties. 

11.9 Governing Law 

This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to its conflict-of-laws principles. 

11.10 Order of Precedence 

If a conflict exists between this Agreement and an Order Form, the terms of the Order Form control for that subject matter.