Terms, liability, and Conditions:
IMPORTANT – READ CAREFULLY: BY SIGNING UP FOR THE OZARK SERVICE, YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS SERVICES AGREEMENT (“AGREEMENT”), AND IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO BIND SUCH ENTITY AND AGREE TO ALL THE TERMS OF THIS AGREEMENT REGARDING CUSTOMER’S USE OF THE OZARK SERVICE. 
Definitions:
  “Authorized User” shall mean the Customer’s employees or consultants who are authorized by Customer to access and use the Ozark Services in accordance with this Agreement. Customer shall ensure that all Authorized Users comply with the terms of this Agreement, and Customer shall be liable for any breach thereof. 

“Customer Data” shall mean data contained in the Payloads processed and published to the Ozark Servers by Customer or its users to the Ozark Services.

 “Client Software” shall mean the object and source code software distributed to Customer, which enables Customer to access and use the Ozark Service. 

“Active Devices” shall mean the total number of devices supplied and connected to the Ozark IOT services. The count does not include the use of Relays and Gateways used to provide the services.

   “Documentation” shall mean the documentation available on Ozark’s website that describes the Ozark Services. 

“Payload” is a device message that is sent or received through the Ozark Services. For example, a payload sent by one Ozark device to another Ozark device. 

“Payment Method” shall mean the method in which the Customer pays for their Ozark Service Selection as indicated in the Purchase Confirmation. 

“Ozark Administration Portal” shall mean the section of the Ozark website which is password protected, allowing the Customer to configure settings about their account, applications, and integrations. Currently at https://iot.ozark.nz

  “Ozark Services” shall mean the various product and service offerings of Ozark, which may be updated at any time based on Ozark’s sole discretion. 

“Ozark Service Selection” shall mean the specific Ozark Services the Customer has selected using the Ozark Offering Link and Purchase Confirmation. 

“Purchase Confirmation” shall mean the online confirmation by the Customer of the Ozark Service Selection, combined with the online submission of the Customer’s payment details.

  “Service Period” shall mean the length of time Customer purchases the Ozark Services.    

Licenses/Grants:
  Subject to payment of applicable fees and compliance with this Agreement, Ozark grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the purchased Service Period to use the Ozark Services for the online transportation of data as described in the Documentation. Usage of the Ozark Services shall be limited to the Ozark Service Selection specified in Customer’s Purchase Confirmation. 

Ozark shall have a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyse or use statistical data relating to its delivery of the Ozark Service derived from the Customer Data, solely for the development, tuning, and scaling of the Ozark Service, including the generation of reports for both internal use purposes as well as reports available to the Customer, which may be offered at an additional cost. Ozark will keep all statistical data private, and will not share this data with any third parties (other than its agents and consultants performing services for Ozark who are under contractual obligation to maintain the confidentiality of such information), except as an aggregate across multiple Ozark end users (for example, advertising the total number of messages sent through the Ozark Service per day) and multiple Ozark customers to prevent the identification of such data as pertaining to any individual Customer and Customer’s end users. Ozark’s use, collection and disclosure of the Customer Data shall comply with applicable law. It is the Customer’s responsibility to ensure that their Client Software is protected from the ability to transmit, install or impose upon Customer’s users any virus, malware, tracking software or system or other technique for the purpose of tracking users, behavioural targeting or any unlawful purpose.    

License Restrictions. 
Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer or a third party (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the Ozark Service, or any portion thereof, except as expressly permitted by local law and in such case, solely upon prior written notice to Ozark; (b) use the Ozark Services in a greater capacity than identified in a Purchase Confirmation; (c) sublicense, distribute or pledge the Ozark Services, (d) access, use, or copy any portion of the Ozark Services to directly or indirectly to develop, promote or support any product or service that is competitive with the Ozark Services, (e) lease, rent or commercially share or otherwise use the Ozark Services for purposes of providing a service bureau or providing third party hosting, application service provider type services; (f) remove any identification, patent, trademark, copyright, or other notice from the Ozark Services or Client Software; (g) interfere with or disrupt the integrity or performance of the Ozark Services or third-party data contained therein; (h) attempt to gain unauthorized access to the Ozark Services or the related systems or networks, including access to other Ozark customer’s data; (i) disclose or publish, without Ozark’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Ozark Services; (j) use any name, mark, or designation of Ozark, or any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by Ozark in writing; (k) use the Ozark Services in connection with any activity for which may result in tangible or intangible property damage, or death or serious body injury; and (l) use the Ozark Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s content is connection with the Ozark Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. Ozark reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section 3.    

Customer Obligations. 
Customer shall be responsible for ensuring that all Authorized Users are bound by the terms and conditions of this Agreement and the usage rights ordered under a Purchase Confirmation, and for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquires or has acquired Customer Data. Customer has sole control over the Customer Data uploaded in the Ozark Services, and acknowledges Ozark has no control of the Customer Data. Customer will ensure that each username and password issued to a Customer will be used only by an Authorized User. Customer is responsible for maintaining the confidentiality of all usernames and passwords. Customer is solely responsible for all activities that occur under these usernames. Customer agrees (a) to only allow Authorized Users to use its account, usernames or passwords, (b) to keep a current list of all Authorized Users, (c) to promptly notify Ozark if it becomes aware, or should be aware, of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Ozark Service. Ozark will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords; (d) to promptly fix any bugs in Customer’s software that causes the Ozark Services to be accessed incorrectly; for example, software that generates incorrect API calls to the Ozark Service, and software that uses incorrect authentication tokens to access the Ozark Service. Ozark reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section 4. Customer shall be responsible for adhering to Usage Restrictions for Ozark Service Selection in which the Customer has selected.    

Term & Termination 
The term of this Agreement shall begin upon acceptance of this Agreement as specified in the preamble and shall continue until the earlier of termination as set forth below. A Service Period shall commence upon Customer’s completion of a Purchase Confirmation. Termination by Customer. The Customer may terminate the Agreement and the Service Period by sending an email to support@Ozark.com Customer must terminate this Agreement and the Service Period at least thirty (30) days prior to the completion of the then current month (“Cancellation Period”). The Agreement and Service Period termination will be effective as of the first day of the following month. If cancellation is later than the Cancellation Period, Customer will be charged for one additional month of the Ozark Service Selection. Termination by Ozark. Ozark may terminate this Agreement and any Service Period, without cause, upon providing the other party with thirty (30) days prior written notice, except the notification period for Customer’s use of Ozark Services provided free of charge, shall be fifteen (15) days. Termination for Breach. Either party may terminate this Agreement and the Service Period upon notice to the other party if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days of the original notice thereof or such other period as may be mutually agreed to by the parties, except the cure period for Customer use of a Ozark Services provided free of charge, and for breaches of Section 2 and Section 3, shall be fifteen (15) days; provided further that in the event a breach is not curable, the non-breaching party may terminate on written notice. Effect of Termination. Upon expiration or termination of this Agreement, (a) the Service Period shall cease, and all license rights to use the Ozark Services, Client Software and the Documentation shall cease, and Ozark shall discontinue the provision of the Ozark Services, and (b) Customer shall immediately pay any outstanding invoices, including fees owed for outstanding Service Periods as specified under Section 5.2 above. For the avoidance of doubt, Customer is responsible for usage and payment arising from continued calls to Ozark APIs (even if a Customer key is disabled) after expiration or termination of this Agreement.   Service Delivery and Support Service Level: Ozark shall provide phone and email support.   Customer Advertising Commitments & Trademark Usage. During the Term, Ozark may include Customer’s name and logo on a list of customers of the Ozark Service.   Fees / Payment. The fees for each Ozark Service Selection are as specified on the Ozark Offering Link and on the Ozark Administration Portal, and are subject to change at any time at Ozark’s sole discretion. Ozark Fees are comprised of any or all of the Service Tier charges. Payment: Unless otherwise agreed to, customers are invoiced monthly. Payment are due 20th Month following invoice, the Ozark Service will be terminated subject to non payment. Billing Contact: Ozark will send billing correspondence to the customers billing email address Payment Disputes: In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to Ozark stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Ozark of such partial payment shall not constitute a waiver of payment in full by Ozark of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt shall accrue interest at a rate of one percent (1 1/2%) per month or the maximum lawful rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Ozark to suspend its provision of the Ozark Service on ten (10) business days prior notice and require payment in advance until Customer account is paid in full. Customer may not setoff, deduct or otherwise withhold amounts due hereunder. The fees charged by Ozark hereunder include a GST. Customer will be responsible for all other applicable sales, use, value added, consumption, withholding, excise and any other similar taxes or federal, state, local taxes or other government taxes related to the payment under this Agreement (excluding taxes based on Ozark’s net income).   Confidential Information. Definition. The term “Confidential Information” means all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement, which the Disclosing Party designates as confidential at the time of disclosure, or a reasonable person should know to be confidential. Notwithstanding the foregoing, the Ozark Services, software (object code and source code), the Documentation, training materials, customer listings, future offerings and products, business plans, investors, pricing, including the fees paid hereunder, user IDs and passwords shall be deemed Confidential Information without any need to designate such information as confidential. Confidential Information shall not include any information which is: (i) already publicly known, (ii) created by the Receiving Party without reference to any Confidential Information, (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party, (iv) required to be publicly disclosed by law or court order, provided the Disclosing Party is given reasonable advance notice of the obligation to produce Confidential Information, or (v) is required by potential investors or necessary pursuant to acquisition or merger activity directly related to the Receiving Party, as part of the associated due diligence process. Confidential Information shall remain the sole property of the Disclosing Party, and each party acknowledges and agrees that it does not acquire any rights therein. Protection of Confidential Information. The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence and may only disclose such to employees and consultants on a need to know basis who are subject to confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as contemplated under this Agreement. Each party agrees to use the same level of care to protect the other party’s Confidential Information from unauthorized use or disclosure as it uses to protect its own such information, but in no event with less than reasonable care. Receiving Party shall, as soon as reasonably practical after discovery a breach of this Confidentiality section, report to the Disclosing Party any unauthorized use of, disclosure of or access to the Disclosing Party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident; and take all reasonable measures to prevent any further unauthorized disclosure or access. The parties shall be entitled to seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief shall not be exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.   Ozark Warranties. Limited Warranty. Ozark warrants it has full power and authority to enter into and perform the Agreement. Disclaimer. Except for the express warranty as set forth above, the Ozark services and client software are provided “as is” and all other express or implied indemnities and warranties are hereby disclaimed with respect to the Ozark services (including the client software), including but not limited to warranties of accuracy, merchantability, fitness for a particular purpose, title, non-infringement, or arising from a course of usage, or trade practice.   Customer Warranties Customer warrants that (a) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all locations where the nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform this Agreement; (d) the execution and delivery of this Agreement have been duly authorized; (e) Customer has all right necessary to provide, access and modify the Customer Data, including rights to grant the license to Ozark, and to distribute such Customer Data across the Internet using the Ozark Services; (f) the Customer Data does not violate any applicable law, including any law or regulation regarding the transmission of technical data exported from the United States or any other applicable country, any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort; (g) Customer shall employ reasonable professional standards in performance of its rights and obligations under this Agreement, and shall avoid deceptive, misleading or unethical practices that may be detrimental to Ozark or the Ozark Services; (h) Customer will not access any information or data provided or controlled by any other end user of Ozark and will abide by and will not circumvent or otherwise disable any security or data protection measures implement by Ozark; and (i) Customer will not, and will not permit any third party to, upload, post, email transmit or otherwise make available using the Ozark Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.


Limitation of Liability. 
Ozark’s aggregate liability to customer, whether for negligence, breach of contract, breach of warranty, or any other cause of action, shall be limited to the monthly hosting Ozark services to which the incident relates for the time related to the outage or fault. Ozark shall not be liable to the customer for any indirect, incidental, special, consequential, punitive, exemplary damages of any kind, including without limitation, lost income, lost revenue, lost profits, business interruption, damages for goodwill, procurement of substitute services, arising out or in any way related to this agreement, the use or the inability to use the Ozark services. In no event shall Ozark be liable for any damages however arising as related to the client hardware or software as provided under this agreement. Even if advised of the possibility of such claim. These limitations will apply despite the failure of essential purpose.   

 Indemnification. 
Customer Exclusive Remedies. If the Ozark Services or any part thereof becomes the subject of a claim for infringement, or in Ozark’s reasonable discretion is likely to become subject to such a claim, Ozark will have the right, at its option, to: (i) replace either or both of the Ozark hardware and the Client Software with non-infringing technology that is materially, functionally equivalent or superior; (ii) modify the either or both of Ozark Services and the Client Software so to become non-infringing without materially affecting functionality; or (iii) obtain a license for Customer to continue using either or both of the Ozark Services and the Client Software. If (a) an injunction is issued by a court of competent jurisdiction barring Customer’s exercise of the license rights granted under this Agreement, or (b) the alternatives specified in (i), (ii) or (iii) above are not available to Ozark on a commercially reasonable basis, then Customer will cease using the infringing technology and Ozark will refund the pro-rata portion of the pre-paid fees attributable to such technology for the amount of the Service Period Customer is not able to use the Ozark Services. This section states the entire liability and obligation of Ozark, and the sole and exclusive remedy of Customer with respect to any alleged or actual infringement of the Ozark Services (including the Client Software) provided under this Agreement. 

Customer’s Indemnification. Customer agrees that Customer’s use of the Ozark Services, and the use of the Customer Data and information that Customer places on the Ozark Services site shall not: (a) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) include any illegal conduct or any violation any law, statute, ordinance or regulation (including without limitation those governing export control, dealer agreements, unfair competition, anti-discrimination or false advertising); or (c) be defamatory, trade libellous, unlawfully threatening or unlawfully harassing or obscene. Customer shall indemnify, defend and hold Ozark harmless from any third party claims including without limitation those claims arising from: (1) Customer’s breach of the subsections (a), (b) and (c) of this subsection; (2) breach of the warranties as set forth in Section 11; (3) modifications or alterations to the Ozark Services; (4) any representations or warranties made by Customer regarding the Ozark Services. Ozark will promptly notify Customer in writing of such claim, and Customer shall have the sole control of such defense and all negotiations for any settlement or compromise, although Ozark will provide reasonable assistance in the same at Customer’s request and expense.    

Ownership. 
Ozark acknowledges that any hardware purchased and paid for by the client becomes the property of the client. Customer acknowledges and agrees that the Ozark Services, the Client Software, and Ozark’s trademarks, and all proprietary rights contained therein, as well as any modifications, enhancements or derivative works (including all feedback relating to the use of the Ozark Services and the Client Software) relating thereto, are and will remain the exclusive property of Ozark or its licensors. Ozark reserves all rights not expressly granted to Customer in this Agreement. As between the parties, Customer retains all ownership in and to the Customers collected Data.    

Miscellaneous. 
Entire Agreement. This Agreement, and any other references, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior and contemporaneous agreements and understandings between the parties concerning such subject matter. Any amendment shall be in writing and signed by authorized representatives of each party. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The descriptive headings of the sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Ozark, at its sole discretion, reserves the right to modify the terms and conditions as set forth under this Agreement at any time. In such case, Ozark shall notify (via email or other written communication) Customer of an updated Agreement available for online acceptance. Ozark shall provide Customer with at least sixty (60) days to accept the terms of the updated agreement. Once accepted, the updated agreement shall govern the provision of Ozark Services upon the commencement of a new month of Ozark Services. Customer shall be required to accept the updated Agreement if it desires to continue to use the Ozark Services. 

Assignment. This Agreement, and any rights or obligations hereunder, shall not be assigned or sublicensed by Customer, including by operation of law, without prior written consent from Ozark. Ozark may assign this Agreement without the consent of the Customer. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. 

Force Majeure. Except for payment for fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond the reasonable control of the party delayed. 

Exporting. Ozark Services, Client Software and the Documentation are subject to New Zealand export control laws, including without limitation any acts and its associated regulations and may be subject to export or import regulations of other countries. Customer hereby agrees that it will not export or re-export the Ozark Hardware, Services, Client Software or Documentation in any form in violation of any applicable export or import laws of any jurisdiction. 

Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. 

Relationship. This Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. Neither party may make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf. Each party acknowledges that this Agreement is non-exclusive and either party may contract with third parties for the procurement or sale of comparable products or services. 

Notices. All notices related to this Agreement shall be in writing. Notices will be effective if dispatched by hand (which shall be deemed given upon delivery), e-mail, or reliable overnight delivery service (which shall be deemed given on business day after mailing), unless otherwise stated in this Agreement, sent to the CEO of Ozark, to Ozark’s address as specified on www.ozark.co.nz and the General Counsel of the Customer, to the respective address as set forth in the Customer’s online registration, unless otherwise indicated by a party subject to the requirements of this subsection. 

Waiver. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The descriptive headings of the sections of the Agreement and any attachments are inserted for convenience only and do not constitute a part of this Agreement.