Device Supply Agreement

Effective: August 25, 2015

THIS DEVICE SUPPLY AGREEMENT (THIS “SUPPLY AGREEMENT” or THIS “Supply Agreement”) IS A LEGALLY BINDING AGREEMENT BETWEEN GIMBAL, INC. (“GIMBAL”) AND THE LEGAL ENTITY YOU REPRESENT (“YOU”).

IF YOU USE OR ARE ENGAGING IN ACTIVITIES UNDER THIS SUPPLY AGREEMENT FOR A BUSINESS, COMPANY OR CORPORATE ENTITY (“COMPANY”), WHETHER AS AN EMPLOYEE OR CONTRACTOR, THE TERM “YOU” INCLUDES, AND THE TERMS AND CONDITIONS HEREIN ARE BINDING ON, BOTH YOU AS AN INDIVIDUAL AS WELL AS SUCH COMPANY. IN ADDITION, YOU REPRESENT AND WARRANT TAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY, AND THAT SUCH COMPANY HAS AUTHORIZED YOU TO ACCEPT THE TERMS OF THIS SUPPLY AGREEMENT ON ITS BEHALF.

GIMBAL IS WILLING TO PROVIDE CERTAIN HARDWARE DESIGNED TO BE USED IN DETECTING LOCATION (EACH A “DEVICE”) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT, AGREE TO AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS IN THIS SUPPLY AGREEMENT. BY CLICKING THAT YOU ACCEPT THESE TERMS OR THE TERMS IN THE GIMBAL DEVELOPER AGREEMENT CURRENTLY POSTED AT https://manager.gimbal.com/sdk-license.(AS MAY BE UPDATED OR MODIFIED FROM TIME TO TIME, THE “DEVELOPER AGREEMENT”), YOU ACKNOWLEDGE AND AGREE, THAT YOU HAVE READ THIS SUPPLY AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, GIMBAL IS UNWILLING TO AND DOES NOT AND WILL NOT MAKE ANY DEVICES AVAILABLE TO YOU. ANY USE, POSSESSION OF, OR ACCESS TO DEVICES BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUPPLY AGREEMENT.

1. Agreement; Delivery.

a. This Supply Agreement applies to each and every supply order of Devices issued to Gimbal by or on behalf of You (each an “S.O.”). An S.O. is generated by placing an order at https://store.gimbal.com (the “Site”) for Devices or such other method as provided by Gimbal. The request for Devices shall include Device type, quantity and shipping address. Gimbal is not obligated to accept any S.O. from You relating to the Devices. Any terms or conditions stated by You in any S.O. or otherwise that are different from, or in addition to, the terms and conditions in this Supply Agreement shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Supply Agreement. Gimbal expressly rejects additional or different terms. An S.O. becomes a part of this Supply Agreement and forms a binding contract between the parties only after it is accepted in writing by Gimbal, and once this contract is formed, it cannot be canceled by either party without the written consent of the other party. Notwithstanding the foregoing, Gimbal shall have the right to cancel and/or hold any and/or all orders placed by You and any and/or all shipments of Devices, regardless of any prior confirmation or acceptance by Gimbal, if: (a) You are or become insolvent; (b) You make an assignment for the benefit of creditors, or a receiver is appointed to take charge of all or any part of Your assets or business; (c) You are the subject of a bankruptcy or reorganization proceeding, whether voluntary or involuntary; or (d) You fail to timely perform any of Your obligations under this Supply Agreement and such failure is not cured within ten (10) days after Gimbal gives written notice to You of such failure.

b. You hereby represent and warrant to Gimbal that any Device being supplied to You hereunder will be used by You solely for Your own use in Your facilities and You will pay the applicable Service Fees (each as defined in the Developer Agreement) in accordance with the terms of this Supply Agreement and in compliance with applicable law. You agree that on reasonable advance notice from Gimbal, You will provide an independent third party auditor, selected by Gimbal, with access to all information, processes, procedures and protocol related to Your compliance with this Agreement. If You use a Device without the Gimbal Software, Gimbal may use data transmitted by the Device for its business purposes. You are permitted to use and display the Device provided that You reference them as “Gimbal Beacons” and use the Device in accordance with the remainder of the Gimbal branding guideline document https://manager.gimbal.com/brand-guidelines. The foregoing restrictions shall not prohibit You from distributing Devices to Your Contractor(s) (as defined in the Developer Agreement), provided that such Contractor shall only use the Device as permitted herein. You acknowledge that the Devices are currently only authorized for distribution to the countries in which Devices are certified for distribution. Gimbal provides notice at https://manager.gimbal.com/supported-countries for which countries the Devices are authorized to be distributed.

c. For international shipments, all deliveries of Devices shall be made FCA (as defined in INCOTERMS 2010) at a Gimbal facility (for the purposes of international shipments, the “Delivery Point”) by a carrier selected by Gimbal. For domestic shipments, all deliveries of Devices shall be made by a carrier selected by Gimbal at the delivery address provided by You (in such case, for the purposes of domestic shipments, the “Delivery Point”). Title to, and risk of loss of or damage to, the Devices shall pass to You upon Gimbal’s delivery of the Devices to the Delivery Point. You shall inspect and either accept or reject all Devices within one (1) business day after delivery of the Devices to the Delivery Point. If You fail to effectively reject any Devices in a written document delivered to Gimbal within such 1-day period, You shall be deemed conclusively to have accepted such Devices.

2. Price; Payment Terms. The cost to purchase each Device shall be as reflected under the Device Fees section of the Fee Schedule located at https://manager.gimbal.com/fee-schedule or as other mutually agreed upon by the parties in writing (the “Price”). All amounts are stated in, and shall be paid in, U.S. dollars. The Prices do not include any applicable sales, use, excise and/or withholding taxes; customs duties; fees; freight, insurance and delivery charges; or any other taxes, fees, or charges. All taxes, fees and other charges imposed in connection with the use and delivery of Devices shall be paid directly by You. In the event Gimbal pays any such fees, taxes, or charges, You shall promptly reimburse Gimbal therefor. You are responsible for obtaining at Your own risk and expense any import license or other official authorization for the importation of Devices at Your destination. You are responsible for customs clearance at Your destination, and You shall bear all duties, taxes and other official charges payable upon importation of the goods as well as any and all costs and risks of carrying out customs formalities. Unless other payment and credit terms are specifically agreed in advance in writing with Gimbal, with respect to each S.O. accepted by Gimbal, You shall render payment in full to Gimbal via card payment on the Site or via check or wire transfer in accordance with the instructions below within five (5) days of Gimbal’s acceptance in writing of the S.O. Gimbal will provide notice on the Site when any different payment options are made available (e.g., credit card). If for any reason whatsoever a payment is not timely made, Gimbal reserves the right to discontinue all support until such past due amounts are paid in full by You. Regardless of what payment terms apply to any S.O., You shall pay to Gimbal a late charge on any past due amounts at the rate of one and one-half percent (1.5%) per month or part thereof or the maximum amount permitted by law, whichever is less. You hereby agree to make all payments when due for the purchase of any and all S.O.’s accepted by Gimbal regardless of any offset or claim which You might otherwise be entitled to assert. Such agreement shall be without prejudice to Your right to pursue any claim or remedy except as an offset against any payment owed by You under this Supply Agreement.

For payments by Check, please remit to:
Gimbal, Inc.
Attn: Accounts Receivable
11010 Roselle St, Ste 150
San Diego, CA 92121

Below are the instructions for payments by Wire:
Account # 3301199929
Ref: Gimbal, Inc.
Silicon Valley Bank
Santa Clara, CA
ABA #1211-4039-9
SWIFT: SVBKUS6S

3. Device Software.

a. Devices sold to You hereunder may contain software or firmware (“Firmware”). In addition, Gimbal hereby reserves the right to provide or otherwise make available, at its discretion, additional software to You from time to time related to the Device. Except as otherwise expressly provided herein, any additional software that Gimbal provides to You by express reference to this Supply Agreement (collectively, “Additional Software”) and any Firmware (Additional Software and Firmware, collectively, “Device Software”) will be considered to be part of the Device and subject to all terms and conditions of this Supply Agreement; provided that nothing herein shall be construed as the sale of any Device Software to You. For the avoidance of doubt, Device Software does not include any Software (as defined in the Developer Agreement). Subject to and conditioned upon Your compliance with the terms and conditions set forth in this Supply Agreement, Gimbal hereby grants to You a personal, non-exclusive, non-sublicenseable, non-transferable, revocable, limited license under Gimbal’s copyrights, during the Term, to perform the Device Software solely in conjunction with the Devices sold by Gimbal for which Gimbal intends it to be used, for the duration of the useful life of such Devices. You shall not, without the prior written consent of Gimbal: (i) alter, modify, translate, reverse engineer, or adapt any Device Software or create any derivative works based thereon; (ii) copy any Device Software; (iii) assign, sublicense or otherwise transfer the Device Software in whole or in part; (iv) use the Device Software except as specifically contemplated in this Supply Agreement, or (iv) disclose the Device Software to any third party. The entire right, title and interest in the Device Software shall remain with Gimbal and its affiliates, and You shall not remove any copyright notices or other legends from the Device Software or accompanying documentation. For the avoidance of doubt, nothing in this Section 3 shall be deemed to grant any rights to You under any of Gimbal Inc.’s or any of its affiliates’ patents.

b. Open Source. You shall not incorporate, link, distribute or use any third party software or code in conjunction with (i) the Device Software (ii) any Device Software, products, documentation, content or other materials developed using the Device Software, nor (iii) any derivative works that You makes using the source code portions of the Device Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Device Software or other Gimbal software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any Intellectual Property Rights (as defined below) of Gimbal or its affiliates, including without limitation as such rights exist in or relate to the Device Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Device Software or any other software provided by Gimbal, (2) any software, products, documentation, content or other materials developed using the Device Software, nor (3) any derivative works that You makes using the source code portions of the Device Software (if any), with any code or software licensed under any version of the GNU General Public License (“GPL“), Affero General Public License (“AGPL“), Lesser General Public License (“LGPL“), European Union Public License (“EUPL“), Apple Public Source License (“APSL“), Common Development and Distribution License (“CDDL“), IBM Public License (“IPL“), Eclipse Public License (“EPL“), Mozilla Public License (“MPL“), or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Device Software or other Gimbal software (or any modifications thereto) to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL, or such other open source license. You, and each party receiving Device Software or any copies thereof from You, shall not receive any rights to use such Device Software or copies thereof in a manner that will cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by Gimbal or any of its affiliates (or for which Gimbal or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License”). “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, worldwide. These restrictions, limitations, exclusions and conditions shall apply even if Gimbal or any of its affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. Also, no act by Gimbal or any of its affiliates that is undertaken under this Supply Agreement as to any software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by Gimbal or any of its affiliates (or for which Gimbal or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.

4. Export Compliance & Regulatory. You acknowledge that all hardware, software, source code and technology (collectively, “Products“) obtained from Gimbal are subject to the US government export control and economic sanctions laws. You assure that You, Your subsidiaries and Your affiliates will not directly or indirectly export, re-export, transfer or release (collectively, “Export“) any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under US laws without prior US government authorization to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan (N) and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You acknowledge that other countries may have trade laws pertaining to import, use, Export or distribution of Products, and that compliance with the same is Your responsibility. You shall not Export or transfer Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China.

5. WEEE Registration and Compliance. If You are distributing or transferring any Devices to any member countries of the European Union, You have responsibility as “Producer” and “Distributor” to ensure recycling of products subject to take-back requirements as described in the WEEE Directive 2012/19/EU. You, acting as the Producer and/or Distributor, must adhere to product registration and reporting requirements, when required, and ensure that proper registration as the Producer in each Member State, where applicable. You, acting as the Producer and/or Distributor, are responsible for ensuring that all technical dismantling instructions are provided to the recycling entities and financial obligations associated are fulfilled. Gimbal shall include a physical label on applicable Devices depicting a crossed-out trash can as described in Annex IX of 2012/19/EU.

6. Confidentiality. You acknowledge that the Device Software, all technical documentation delivered to You by Gimbal hereunder, and all other information relating to the design, development, configuration, use, installation, operation and maintenance of Devices (unless disclosed publically by Gimbal) constitute confidential and proprietary information of Gimbal (referred to as “Confidential Information ”). Other than as specified herein, You shall not duplicate, use other than in accordance with this Supply Agreement, or disclose to any third person any Confidential Information without the prior written consent of Gimbal. You shall have no right to sublicense, transfer or sell Gimbal Confidential Information to any third party other than in accordance with this Supply Agreement. Moreover, such Confidential Information shall be used by You only for the purpose of performing under this Supply Agreement. Information delivered to You orally or in tangible form and without regard to whether it has been identified or marked as confidential or otherwise, shall be subject to this Section 6. After delivery of the Devices, Gimbal may disclose to its current and prospective customers and strategic relationships that You have acquired the Devices and how You are using or plan to use the Devices in Your business.

7. Limited Warranties. Gimbal warrants only to You only that the Devices will conform to Gimbal specifications and the hardware will be free from defects in material and workmanship for ninety (90) days from date of delivery to the Delivery Point (the “Limited Warranty”). There is no warranty for any Additional Software, which may or may not be compatible with Your Device(s). In addition, there is no warranty with regard to the battery life of any Device, regardless if battery life is mentioned in any specifications. Your sole remedy for breach of the Limited Warranty shall be the return of the allegedly defective Devices to Gimbal at Your sole expense in accordance with instructions provided by Gimbal. You shall obtain from Gimbal a written authorization (RMA) before returning any allegedly defective Devices. If such Devices are defective, Gimbal, at Gimbal’s sole option, shall repair or replace such Devices with functionally similar Devices within thirty (30) business days of Gimbal’s receipt thereof or, if Gimbal determines that it is unable to repair or replace such Devices, Gimbal shall refund You the Price paid for such defective Devices. Notwithstanding the foregoing, no warranty, expressed or implied, shall extend to any Device (i) where the Price was waived, (ii) that has been subjected to misuse, neglect, accident, or improper storage or installation, or (iii) that has been repaired, modified, or altered by anyone other than Gimbal. You hereby acknowledge and agree that You have not relied on any representations or warranties other than those expressly set forth herein. GIMBAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO DEVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.

8. Restrictions & Intellectual Property.

Except for the express copyright licenses granted to You in Section 3 (Device Software), no other intellectual property rights are granted by Gimbal under or as a result of this Supply Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). You acknowledge and agree, on behalf of Yourself, Your affiliates, Your agents and Your contractors, that neither the delivery of any part or all of the Devices nor any provision of this Supply Agreement (including, without limitation, any provision in any exhibit, S.O., addendum, etc. forming a part hereof) will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (i) any patents of Gimbal Inc., or any of its affiliates, (ii) any other intellectual property rights of (a) any affiliate of Gimbal Inc., or (b) Gimbal Inc., or (iii) any intellectual property rights of Gimbal covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the Devices.

9. Indemnification. You shall indemnify, defend, and hold harmless Gimbal and its affiliates against any and all losses, claims, damages and expenses (including attorneys’ fees) arising out of or related to Your (including Your employees, affiliates and independent contractors), misuse and/or modification of Devices, or Your or any of Your affiliates use of any Device in combination with any other items, whether or not furnished by Gimbal or any of its affiliates, unless such use is the necessary, inherent and/or intended use of the Device.

10. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL GIMBAL, ITS AFFILIATES, MANUFACTURERS, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS SUPPLY AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOLUTION, EVEN IF GIMBAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER YOUR REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. GIMBAL’S CUMULATIVE LIABILITY ARISING FROM THE SERVICES, PRODUCTS AND SOFTWARE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, INDEMNIFICATION, CONTRIBUTION, OR OTHERWISE, SHALL BE LIMITED TO THE DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED AN AMOUNT EQUAL TO THE PRICE PAID FOR THE DEVICE WHICH IS THE SUBJECT OF SUCH CLAIM OR CAUSE OF ACTION. YOU HEREBY RELEASE GIMBAL, IT’S MANUFACTURERS, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION. ALL CLAIMS BY YOU, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS SUPPLY AGREEMENT. This provision applies notwithstanding any contrary provision in this Supply Agreement.

11. Termination & Survival.

a. Termination. The licenses granted to You by Gimbal hereunder terminate immediately and automatically, with or without notice, if You or Your Contractor fail to comply with any provision hereof and you shall no longer be permitted to use the Device Software and may no longer be able to use the Device.

b. Survival. The parties’ rights and obligations which by their sense and context are intended to survive any termination or expiration of this Supply Agreement shall so survive.

12. GOVERNING LAW; VENUE. This Supply Agreement is governed and interpreted in accordance with the laws of the state of California, United States of America, without giving effect to its conflict of laws provisions that would result in the application of the laws of a different state or country. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Except as set forth in Section 13 (Dispute Resolution), any claim, lawsuit or proceeding arising out of or related to this Supply Agreement must be brought exclusively in the courts of San Diego, California and You hereby consent to the exclusive jurisdiction and venue of such courts, provided that either party may seek injunctive or other equitable relief in any court with jurisdiction. If any provision (or portion of a provision) of this Supply Agreement shall be held to be illegal, invalid, or unenforceable, the legality, enforceability or validity of the remaining provisions (or portion of the applicable provision) of this Supply Agreement shall not be affected.

13. DISPUTE RESOLUTION. If You are an individual or entity whose official place of residency or formation is outside of the United States, all disputes, controversies, or claims arising out of, relating to or in connection with this Supply Agreement including the determination of the scope of the agreement to arbitrate, shall be finally settled by arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”), applicable at the time of submission of the dispute to arbitration, and the following shall apply:

a. The American Arbitration Association, (“AAA”) shall be the Appointing Authority and shall appoint a single arbitrator. The arbitration case shall be administered by the AAA in accordance with its “Procedures for Cases Under the UNCITRAL Arbitration Rules” (“Rules”). The place of arbitration shall be San Diego, California, and the exclusive language to be used for the arbitral proceedings shall be English.

b. Nothing herein will prevent Gimbal, prior to appointment of the arbitrator, from making application to any court of competent jurisdiction, for any provisional remedy available at law or in equity. Such application for relief shall not constitute a waiver of this Supply Agreement to arbitrate. Upon appointment, the arbitrator shall have exclusive authority to order provisional or interim relief, except that any relief ordered by the arbitrator may be immediately and specifically enforced by a court otherwise having jurisdiction. You waive objection to venue and consent to the personal jurisdiction of the federal courts of San Diego, California, U.S.A. in any action to enforce this Supply Agreement to arbitrate or any order or award of the arbitrator, or for the provisional or interim remedies provided for herein.

c. Discovery shall be limited to written requests for the production of specific documents. The period for requesting documents shall be sixty (60) days commencing upon the day that the answer is due under the Rules. The responding party shall have thirty (30) days to produce the requested documents by sending copies to the requesting party or its representative via a recognized international courier service. Each party will also voluntarily produce all documents that they intend to use at the arbitration hearing and a list of intended witnesses before the close of discovery subject to supplementation for purposes of rebuttal or good cause shown. Each party hereby waives any right to seek any discovery not provided for in this Supply Agreement irrespective of whether the laws of any country provide for different or additional discovery in international arbitration. The arbitrator will hold a pre-hearing conference within three days of the close of discovery and will schedule and hold the final hearing within thirty (30) days of the close of discovery. YOU HEREBY AGREE THAT THE ARBITRATION PROCEDURE PROVIDED HEREIN WILL BE THE SOLE AND EXCLUSIVE METHOD OF RESOLVING ANY OF THE AFORESAID DISPUTES, CONTROVERSIES OR CLAIMS.

14. EXPORT COMPLIANCE ASSURANCES. You acknowledge that all hardware, software, documentation, technology and technical data and information (collectively, “Products“) obtained from Gimbal and the Applications are subject to the US government export control and economic sanctions laws , including without limitation the Export Administration Regulations (“EAR“, 15 CFR 730 et seq., https://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., https://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control (“OFAC“). You represent and warrant that You, Your Contractors and Your Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, “export“) any Products or direct product thereof to any destination, person, Entity or end use prohibited or restricted under US laws without respective prior US government authorization to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries listed in Country Groups E:1/2 of the EAR (Supplement 1 to part 740), currently Cuba, Iran, North Korea, Sudan (N) and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You agree not to directly or indirectly employ any Product received from Gimbal in missile technology, sensitive nuclear or chemical biological weapons activities, or in any manner export any Product to any party for any such end use. You shall not, and You shall ensure that Your Contractors do not, export any Product to any party listed on any of the denied parties lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. You acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with the same is Your responsibility. You represent and warrant that You are not a person or Entity that is listed on any United States Government list of prohibited or restricted parties. This Section shall survive the expiration or termination of this Supply Agreement.

15. COMPLIANCE LAWS.

a. You shall, and shall ensure that Your Contractors shall, abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Your use of Devices, including, without limitation, those related to privacy and data collection, international communications, and the transmission of technical or personal data.

b. Not in limitation of the foregoing, You represent and warrant to Gimbal that, in connection with the transactions contemplated by this Supply Agreement or in connection with any other business transactions involving Gimbal, You, and everyone acting on Your behalf, will comply with and will not violate any anti-corruption law or international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act. You represent and warrant to Gimbal that You have not, and covenant and agree that You will not, and shall ensure that Your Contractors do not, in connection with the transactions contemplated by this Supply Agreement or in connection with any other business transactions involving Gimbal, make, promise, or offer to make any payment or transfer anything of value, directly or indirectly, to any individual to secure an improper advantage. It is the intent of the Parties that no payments or transfer of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business.

16. GOVERNMENT END USERS. If You are acting on behalf of an agency or instrumentality of the U.S. government, the Device Software and related documentation, as applicable, are “commercial computer software” and “commercial computer software documentation” developed exclusively at private expense by Gimbal. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Device Software is governed by the terms of this Supply Agreement.

17. NO THIRD PARTY RIGHTS. Excepting the terms and rights applicable to Gimbal’s affiliates as expressly stated herein (which terms and rights such Gimbal affiliates shall be entitled to enforce as third party beneficiaries), the parties agree and confirm their mutual intention that neither this Supply Agreement nor any of the terms of this Supply Agreement will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999, or otherwise, by any person/entity not a direct party to it. Notwithstanding that any term of this Supply Agreement may be or may become enforceable by a person who is not a party to this Supply Agreement, the terms and conditions of this Supply Agreement may be modified or amended, or this Supply Agreement may be suspended, cancelled, rescinded or terminated by the parties as provided in Section 18(a) (Amendment) without the consent of any such third party.

18. General Terms.

a. Amendment. This Supply Agreement amends and restates the prior Device Supply Agreement that was Effective November 12, 2013 and shall apply to any S.O. or other order or sale of Devices to You. You will be responsible for reviewing and becoming familiar with any and all changes. If You or Your Contractors continue to use any portion of the Devices or the Device Software after notice of the updated Supply Agreement has been provided or posted, You shall be deemed to have accepted any and all such changes. Except for orders made prior to December 12, 2013, the Device Supply Agreement current at the time of placement of an S.O. shall govern the purchase of Devices under such S.O. unless otherwise mutually agreed upon by You and Gimbal.

b. Language. This Supply Agreement is entered into solely in the English language, and if for any reason any other language version is prepared by any party, it shall be solely for convenience and the English version shall govern and control in all respects. If You are located in the province of Quebec, Canada, the following applies: The parties hereby confirm they have requested this Supply Agreement and all related documents be prepared in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.

c. Notice. All notices and approvals submitted hereunder shall be in writing, and be delivered by hand, overnight delivery or e-mail to the addresses set forth below:

Gimbal:
Legal Department
Gimbal, Inc.
11010 Roselle St, Ste 150
San Diego, CA 92121
legal [at] gimbal [dot] com

You: Notices and approvals for You will be sent to the email address You provided when placing the order or such other email address provided if You have established a developer account under the Developer Agreement.

Notices will be effective upon receipt or when delivery is refused. Each party may change its address by giving notice to the other party of the new address in accordance with this Section.

d. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Supply Agreement will be valid and enforceable to the fullest extent permitted by applicable law.

e. Force Majeure. Neither party shall be liable for any delay or failure to meet its obligations under this Supply Agreement due to circumstances beyond its reasonable control, including but not limited to war, riot, insurrection, civil commotion, labor strikes or lockouts, shortages, factory or other labor conditions, fire, flood, earthquake or storm. Notwithstanding, this provision shall not be construed to relieve You of Your obligations to make payments to Gimbal pursuant to this Supply Agreement.

f. Headings and Construction. The section headings in this Supply Agreement are for convenience of reference only and are not to be considered as parts, provisions or interpretations of this Supply Agreement. The use of the term “including” or words of similar meaning in this Supply Agreement will be deemed to include the phrase “without limitation” or similar words that show the intent of the parties to identify, by way of a non-exhaustive list, certain examples of the subject being addressed. This Supply Agreement is not to be presumptively interpreted for or against any party by reason of that party having drafted or negotiated, or failed to draft or negotiate, all or any portion of any provision of this Supply Agreement.

g. No Waivers. No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed a waiver of such right or any other rights hereunder. No consent to a breach of any term of this Supply Agreement will constitute a consent to any prior, subsequent or other breach.

h. No Assignment. You shall not, and shall ensure that Your Contractors do not, assign this Supply Agreement or any right hereunder or delegate or transfer any duties or obligations hereunder (whether voluntarily, by operation of law, or otherwise) without Gimbal’s prior written consent. Any attempted assignment, transfer or other delegation, without such consent will be null and void and will constitute a material breach. This Supply Agreement will be binding upon and inure to the benefit of the parties and their permitted successors, transferees, and assignees.

i. Entire Agreement. Except with respect to the foregoing, this Supply Agreement supersedes all prior oral and written negotiations and agreements and representations of, between or on behalf of the parties with respect to the subject matter hereof. This Supply Agreement contains all of Gimbal’s and Your agreements, warranties, understandings, conditions, covenants, and representations with respect to the subject matter hereof. Neither Gimbal nor You will be liable for any agreements, warranties, understandings, conditions, covenants, or representations not expressly set forth or referenced in this Supply Agreement. To the extent that You place orders using supply or purchase orders, electronic data interchange, or other communications that purport to impose different or additional terms, those communications shall be deemed only to be order placements under this Supply Agreement and shall not constitute modification of this Supply Agreement. To the extent that Gimbal accepts orders You place using such communications, Gimbal shall not be deemed as a result also to have accepted any different or additional terms set out in such communications and such refused provisions will be unenforceable. This Supply Agreement shall not modify or abrogate Your obligations under any other agreement with Gimbal or its affiliates. The rights and remedies expressly provided to Gimbal herein are not exclusive, but are cumulative and in addition to any other rights and remedies available at law or in equity.

Beacon Warning & Regulatory Info

PRODUCT WARNING
WARNING! Beacon ingestion and choking hazard.

Swallowing battery may cause burns leading to serious injury or death.

Keep battery away from children.

If swallowed, immediately see doctor.

REGULATORY INFORMATION

 WARNING – CHOKING HAZARD: Small parts. Not for children under 3 years.

• This product contains a Lithium Metal battery. To reduce risk of injury, do not disassemble, crush, puncture, short circuit external contacts, expose to temperatures above 100°C (212°F), or dispose of in fire or water.

• If the battery leaks:

o Do not allow the leaking fluid to come in contact with skin or clothing. If contact has already occurred, flush the affected area immediately with clean water and seek medical advice.

o Do not allow the leaking fluid to come in contact with eyes. If contact has already occurred, DO NOT rub; rinse with clean water immediately and seek medical advice.

o Take extra precautions to keep a leaking battery away from fire, as there is a danger of ignition or explosion.

o Vapor generated from burning batteries may irritate eyes, skin and throat. If inhalation occurs, move to a well-ventilated area immediately and seek medical advice.

Regulatory Information

Safety and Wireless Devices
Scientific research on wireless devices and radio frequency (“RF”) energy has been conducted worldwide for many years, and continues. In the United States, the Food and Drug Administration (“FDA”) and the Federal Communications Commission (“FCC”) set policies and procedures for wireless devices. The FDA issued a website publication on health issues related to usage of cell phones where it states, “The scientific community at large believes that the weight of the scientific evidence does not show an association between exposure to RF from cell phones and adverse health outcomes.” Still the scientific community does recommend conducting additional research to address gaps in knowledge. That research is being conducted around the world and the FDA continues to monitor developments in this field. You can access the FDA website at http://www.fda.gov (Under “C” in the subject index, select Cell Phones > Research.). You can also contact the FDA toll free at (888) 463-6332 or (888) INFO-FDA. The FCC issued its own website publication stating that “there is no scientific evidence that proves that wireless telephone usage can lead to cancer or other problems, including headaches, dizziness or memory loss.” The publication is available at https://www.fcc.gov/cgb/cellular.html or through the FCC at (888) 225-5322 or (888) CALL-FCC. The National Cancer Institute (“NCI”) states that concerns about the potential health effects of using cellular phones – “and specifically the suggestion that using a cell phone may increase a person’s risk of developing brain cancer – are not supported by a growing body of research on the subject.”.

1. Can I minimize my RF exposure?
If you are concerned about RF, there are several simple steps you can take to minimize your RF exposure. You can, minimize usage of the device near the body. You can also place more distance between your body and the source of the RF, as the exposure level drops off dramatically with distance.

Wireless devices marketed in the United States are required to meet safety requirements regardless of whether they are used against the head or against the body.

2. Where can I obtain further information?
For further information, see the following additional resources:
U.S. Food and Drug Administration
FDA Consumer Magazine
November-December, 2000
1-888-INFO-FDA
http://www.fda.gov
Under “C” in the subject index, select Cell Phones > Research
American National Standards Institute
1819 L Street, N.W. Suite 600
Washington D.C., 20036
1-202-293-8020

3. United States of America, Federal Communications Commission (FCC) Information
Changes or modifications not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment.

This device complies with part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference and (2) this device must accept any interference received, including interference that may cause undesired operation.

The Gimbal™ Proximity Beacon has been tested to the limits for a Class B digital device, according to Part 15 of the FCC rules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. The Gimbal Proximity Beacon uses and radiates radio frequency energy and if not installed and used according to instructions, may cause harmful interference to radio communications or be interfered with. There is no guarantee that interference will not occur in a particular installation.

If the Gimbal Proximity Beacon does cause harmful interference to radio or television reception, which can be determined by removing the battery from the Gimbal Proximity Beacon, try to correct the interference by taking one or more of the following actions:
• Increase the distance between the 2net Hub and radio or television receiver
• Consult the dealer where you bought your radio/TV or an experienced radio/TV technician

If the Gimbal Proximity Beacon is being interfered with try to correct the interference by taking the following actions:
• Make sure that the Gimbal Proximity Beacon is no closer than 10 ft (3 m) of a Wi-Fi access point, microwave oven or 2.4 GHz cordless phone.
• Increase the distance between the Gimbal Proximity Beacon and all other electronic equipment by moving the Gimbal Proximity Beacon.

CAUTION: The Gimbal Proximity Beacon should not be used in airplanes, hospitals or locations where cellular telephones and other electronic devices are prohibited.

4. Industry of Canada Information
This device complies with Industry Canada licence-exempt RSS standard(s). Operation is subject to the following two conditions: (1) this device may not cause interference, and (2) this device must accept any interference, including interference that may cause undesired operation of the device.

Le present appareil est conforme aux CNR d’Industrie Canada applicables aux appareils radio exempts de licence. L’exploitation est autorisee aux deux conditions suivantes : (1) l’appareil ne doit pas produire de brouillage, et (2) l’utilisateur de l’appareil doit accepter tout brouillage radioelectrique subi, meme si le brouillage est susceptible d’en compromettre le fonctionnement.

5. Japan, Ministry of Internal Affairs and Communications (MIC) Information
The Gimbal Proximity Beacon has been approved for operation in Japan by the Ministry of Internal Affairs and Communications (MIC). The MIC Type Certification number for the Gimbal Proximity Beacon is 007-XX00000.

6. Taiwan, National Communication Commission (NCC) Information
The Gimbal Proximity Beacon has been approved for operation in Taiwan by the National Communication Commission (NCC). The NCC Type Certification number for the Gimbal Proximity Beacon is CCXXxxYYyyyZzW.

NCC Warning Statement:
低功率電波輻性電機管理辦法
第十二條經型式認證合格之低功率射頻電機,非經許可,公司、商號或使
用者均不得擅自變更頻率、加大功率或變更原設計之特性及功能。
第十四條低功率射頻電機之使用不得影響飛航安全及干擾合法通信;經發
現有干擾現象時,應立即停用,並改善至無干擾時方得繼續使用。
前項合法通信,指依電信規定作業之無線電信。低功率射頻電機須忍受合法通信
或工業、科學及醫療用電波輻射性電機設備之干擾。
在5.25G ~5.35G頻帶內操作之無線資訊傳輸設備僅適於室內使用

7. Australia & New Zealand, Australian Communications and Media Authority (ACMA) Information

Display of RCM mark above indicate Gimbal S21 Beacons (900-0000-000) is in compliance with all applicable Radio Spectrum management’s (RSM), Australian Communications and Media Authority (ACMA) regulatory arrangements—telecommunications, radio communications, EMC and EME—and with applicable state and territory electrical equipment safety requirements.

References:
ACMA Supplier code number: N30375
RCM supplier number: E304
RSM Supplier number: E178

Gimbal™ Proximity Beacons – AS-IS, NO WARRANTY

Gimbal™ Proximity BEACON AS-IS, NO WARRANTY

GIMBAL, INC. (“GIMBAL”) PROVIDES THE GIMBAL™ PROXIMITY™ BEACON (INCLUDING ALL SOFTWARE ASSOCIATED THEREWITH) (THE “PRODUCT”) WITHOUT WARRANTY, ON AN AS-IS BASIS. Manufacturers, suppliers, or third parties other than GIMBAL may provide their own warranties, but GIMBAL, to the extent permitted by law, provides this Product “AS IS”. GIMBAL does not warrant that the operation of the Product will be uninterrupted or error-free. GIMBAL is not responsible for damage arising from any failure to follow instructions relating to the Product’s use. Refer to the End User License Agreement (EULA) at https://www.manager.gimbal.com/beacon-eula or other software licensing agreement accompanying the Product for details of your rights and obligations with respect to the use of such software.

DISCLAIMER OF ALL WARRANTIES

TO THE EXTENT PERMITTED BY LAW, GIMBAL EXPRESSLY DISCLAIMS ALL WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, FOR THE PRODUCT, AND ANY RELATED SOFTWARE OR SERVICE. AS PERMITTED BY APPLICABLE LAW, GIMBAL, IT’S MANUFACTURERS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. IF GIMBAL, IT’S MANUFACTURERS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, CANNOT LAWFULLY DISCLAIM STATUTORY OR IMPLIED WARRANTIES THEN TO THE EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES SHALL BE LIMITED IN DURATION TO THE SHORTEST PERMITTED DURATION AND TO REPAIR, REPLACEMENT, OR REFUND AS DETERMINED BY GIMBAL IN ITS SOLE DISCRETION. No GIMBAL reseller, agent, partner, affiliate or employee is authorized to make any modification, extension, or addition to this no warranty statement. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.

LIMITATION OF LIABILITY

GIMBAL, IT’S MANUFACTURERS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, ARE NOT RESPONSIBLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION), THE SALE OR USE OF THE PRODUCTS, OR RELATED SOFTWARE OR SERVICES, OR UNDER ANY OTHER LEGAL THEORY.

GIMBAL’ CUMULATIVE LIABILITY, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, INDEMNIFICATION, CONTRIBUTION, OR OTHERWISE, SHALL BE LIMITED TO THE DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED THE PURCHASE PRICE FOR THE PRODUCT. YOU HEREBY RELEASE GIMBAL, IT’S MANUFACTURERS, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION. GIMBAL IS ALSO NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING FROM OR RELATED TO YOUR BREACH OF THIS AGREEMENT. THE FOREGOING LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS, OR ANY STATUTORY LIABILITY FOR INTENTIONAL AND GROSS NEGLIGENT ACTS AND/OR OMISSIONS. GIMBAL, ITS MANUFACTURERS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, DISCLAIM ANY REPRESENTATION THAT IT WILL BE ABLE TO REPAIR ANY PRODUCT UNDER THIS AGREEMENT OR MAKE A PRODUCT EXCHANGE WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA. ALL CLAIMS BY YOU, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

Some states do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply in those states. However, the parties intend for this limitations of liability provision to apply to the maximum extent allowed under applicable law. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision in this agreement.

If your product is capable of storing software programs, data and other information, you should make periodic backup copies of the information contained on the product’s hard drive or other storage media to protect the contents and as a precaution against possible operational failures.

Effective Date: September 24, 2013

Gimbal Beacon Manager Mobile Application – Terms of Service

THE GIMBAL™ BEACON MANAGER MOBILE APPLICATION (THE “GBM APP”) IS AVAILABLE FOR USE ONLY BY DEVELOPERS THAT HAVE ACTIVE GIMBAL DEVELOPER ACCOUNTS THROUGH www.gimbal.com. IF YOU DO NOT HAVE AN ACTIVE GIMBAL DEVELOPER ACCOUNT, PLEASE UNINSTALL THE GBM APP FROM YOUR DEVICE AND DISCONTINUE USE. IF YOU WOULD LIKE TO REGISTER FOR A GIMBAL DEVELOPER ACCOUNT, PLEASE GO TO www.gimbal.com.

Please read these GIMBAL Beacon Manager Mobile Application Terms of Service carefully (these “Terms of Service”). These Terms of Service are a binding legal agreement entered into by and between you (or if you are entering into these Terms of Service on behalf of an entity, then the entity that you represent) (“you”) and Gimbal, Inc. (“GIMBAL”). The GBM App is a software application to provide Gimbal developers a tool to configure and/or detect their nearby Gimbal beacon(s), including, one or more static identifiers, one or more dynamic identifiers, battery power level, temperature and determine signal strength (the “Permitted Use”). The GBM App is available for your use in the United States, Japan, Canada and the United Kingdom and only available for use by individuals at least the 18 years old. Use of the GBM App is subject to (i) the Device Supply Agreement currently posted at https://manager.gimbal.com/beacon-supply-agreement (as may be updated or modified from time to time, the “Supply Agreement”) and (ii) these Terms of Service. The GBM App is Additional Software (defined in Section 3 of the Supply Agreement), and these Terms of Service state additional terms that govern your use of the GBM App. To the extent there are any conflicts between these Terms of Service and the Supply Agreement, these Terms of Service shall control with regard to use of the GBM App only. These Terms of Service, together with the Supply Agreement, all updates, additional terms, and all of GIMBAL rules and policies, collectively constitute the “GBM App Agreement” between you and GIMBAL. By using or completing the installation of the GBM App, you are accepting the GBM App Agreement and you are bound by its terms and conditions. You are fully aware of the legal consequences of clicking-through these Terms of Service and have had the opportunity to seek advice of your own counsel before accepting them. IF YOU DO NOT AGREE TO THE TERMS OF THESE TERMS OF SERVICE, THEN DO NOT CLICK THE “ACCEPT” BUTTON OR USE THE GBM APP, AND UNINSTALL THE GBM APP AND DISCONTINUE USE.

GIMBAL may refuse to provide you access to the GBM App for noncompliance with any part of the GBM App Agreement. The GBM App Agreement will govern any upgrades provided by GIMBAL that replace and/or supplement the original GBM App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The features of the GBM App may vary depending on the platform from which you use it. The functionality of the GBM App is subject to change, and is not guaranteed to be available at all times. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the GBM App or services.

1. Relationship to Other Agreements

GIMBAL encourages you to review the Gimbal End-user Privacy Policy (the “Privacy Policy”), which is available at https://manager.gimbal.com/privacy and on the About page of the GBM App. By agreeing to the GBM App Agreement, you also are agreeing to the Privacy Policy. The Privacy Policy governs the collection, use and disclosure of information we collect from you.

You agree that you continue to be subject to the terms and conditions of your existing agreements with any other service providers, including but not limited to your mobile service carrier or provider (“Carrier”). GIMBAL is not your Carrier and is not affiliated, connected, or associated with your Carrier. The GBM App Agreement does not amend or supersede any of your agreements with your Carrier(s), internet service provider(s) (“ISP”), or other service provider(s). Those agreements may provide for fees, limitations and restrictions that might impact your use of the GBM App (for example, your Carrier may impose data usage or text message charges for your use of or interaction with the GBM App, including while downloading the GBM App or other use of your wireless device when using the GBM App), and you agree to be solely responsible for all such fees, limitations and restrictions.

You acknowledge and agree that we are not responsible for your Carrier’s products and services. You agree to resolve any problems with your Carrier directly and without involving us.

2. Proprietary Rights

A. Subject to and conditioned upon your compliance with the GBM App Agreement, GIMBAL hereby grants to you, and you accept, a limited non-exclusive, personal, non-transferable, non-sublicensable, revocable copyright license to (i) copy the GBM App in object code format solely for the purpose of downloading and installing the GBM App to your iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Services, and (ii) display and perform the GBM App functionality on your iOS product that you own or control and only as permitted by the Usage Rules set forth in the App Store Terms of Services solely for the Permitted Use. You will not delete, obscure or alter any notice (including but not limited to any copyright or other proprietary rights notice) or link that appears in the GBM App.

B. Except for the express copyright license rights granted to you in Section 2 (A), no other rights under any intellectual property are granted by GIMBAL under or as a result of the GBM App Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). You acknowledge and agree that neither the delivery of the GBM App nor any provision of the GBM App Agreement will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (i) any patents of QUALCOMM Incorporated or any of its affiliates, (ii) any other intellectual property rights of any affiliate of QUALCOMM Incorporated or (iii) any intellectual property rights of GIMBAL covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the GBM App. For the purposes of the GBM App Agreement “intellectual property rights” means all current and future worldwide copyrights, trade secrets, patents and other patent rights, utility models, mask work rights, trademarks, trade names, service marks and all other intellectual property rights, including all applications and registrations with respect thereto.

C. You agree not to use the GBM App for any purpose or activity that is illegal, immoral, offensive or harmful to GIMBAL, its affiliates, or to any third party. You further agree not to resell or redistribute the GBM App to a third party without GIMBAL’ prior written permission, which GIMBAL can withhold, condition or delay in its sole discretion. GIMBAL CAN, WITHOUT NOTICE, LIMIT, SUSPEND OR END AVAILABILITY OF THE GBM APP FOR ANY REASON OR NO REASON, including, but not limited to, the use of the GBM App violates or infringes upon any rights of any kind of any third party, including, but not limited to, copyright, trademark, contract, defamation, right of privacy or publicity or any other right of any person or entity.

D. Except if and only to the extent expressly permitted under applicable law, you shall not attempt, knowingly permit or encourage others to attempt to: (i) reverse engineer, reverse compile, decipher, decrypt, or discover the source code of or disassemble the GBM App, in whole or in part; (ii) use any mechanical, electronic, or other method to trace, decompile, disassemble or decrypt the GBM App; (iii) rent, loan, lease, sublicense, transfer, network, reproduce, display (other than as set forth above), or otherwise distribute the GBM App; (iv) copy (other than as set forth above), manufacture, translate, modify, adapt, enhance or extend the GBM App. If applicable law expressly permits such activities, any information so discovered or derived shall be deemed to be the confidential proprietary information of GIMBAL and must be promptly disclosed by you to GIMBAL.

E. The GBM App may use, include, or make available to you third party software that is subject to third party license agreements. To the extent that the GBM App Agreement conflicts with licenses or agreements governing your rights to that software, the agreement or license applicable to such third party software is covered by the terms of its applicable license or agreement. Nothing included with the GBM App is a “Contribution” (as that term is defined in each third party license agreement) from GIMBAL or any of its affiliates. The GBM App also may use JavaScript or other software that is distributed with other licenses such as the BSD License, the MIT License, the Apache License Version 2.0, and/or other licenses. In the event any such software is distributed with the GBM App, package information and applicable package terms and licenses are included with the GBM App distribution.

F. GIMBAL and its licensors retain all right, title, and interest in and to the GBM App and any updates and improvements thereof, including, without limitation, all intellectual property rights therein.

G. Nothing under this Agreement or the fact that you have access to and use of the GBM App gives you any right, title or interest or license to reproduce, modify or otherwise use GIMBAL’s, its affiliates’ or any third party’s trademarks, service marks, graphics, or logos.

3. GBM App Limitations

A. The GBM App may not be available on all wireless devices, on all mobile service carriers or providers, and may not be accessible or may have limited utility over some mobile networks in situations such as, but not limited to, roaming.

B. Neither GIMBAL nor GIMBAL service providers can always foresee or anticipate technical or other difficulties related to the GBM App. These difficulties may result in loss of data, loss or change of personalization settings, or other application, service, wireless device, or data interruptions. You agree that neither we nor any of our service providers are responsible for the timeliness, deletion, misdelivery or failure to store any user data, communications, or personalization settings in connection with your use of the GBM App, and you hereby release GIMBAL, its affiliates and its service providers from any liability connected with any such responsibility.

C. You agree that none of GIMBAL, its affiliates or any of its service providers are responsible for the operation, security, functionality, or availability of any wireless device or network that you use to access the GBM App, and you hereby release GIMBAL, its affiliates and its service providers from any liability connected with any such responsibility. Without limiting the foregoing, GIMBAL is not responsible for any damages arising from unauthorized access to your GBM App account due to lost or stolen wireless devices.

D. You agree to exercise caution when using the GBM App on your wireless device and to use good judgment and discretion when obtaining or transmitting information.

E. You warrant and represent that you have the all rights necessary with respect to any content you access, post, share, publicly perform, display, or otherwise use in relation to the GBM App.

4. Security

GIMBAL uses reasonable means to secure the information we collect. In accepting these Terms of Service, however, you acknowledge that no security is 100% effective. GIMBAL reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized access to or use of the GBM App, including, but not limited to, technological barriers, IP mapping, and contacting your ISP regarding any unauthorized access or use.

5. Services; Third-Party Material

The GBM App may enable access to GIMBAL and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that you accept additional terms of service. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that GIMBAL is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. GIMBAL does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Alerts and/or notification data provided by any Services is for convenience only and you understand that multiple factors including network availability may affect notification data delivery, which is not guaranteed. Neither GIMBAL nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or notification data displayed by any Services.

You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the GIMBAL is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.

In addition, third party Services and Third Party Materials that may be accessed from displayed on or linked to from the iOS device are not available in all languages or in all countries. GIMBAL makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. GIMBAL and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will GIMBAL be liable for the removal of or disabling of access to any such Services. GIMBAL may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

6. Disclaimers/Indemnity

THE GBM APP IS LICENSED TO YOU “AS IS.” GIMBAL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, REGARDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE GBM APP. GIMBAL CANNOT AND DOES NOT PROMISE ACCURACY, SECURITY, OR ERROR–FREE SERVICE AND DOES NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF.

You agree to indemnify and hold harmless GIMBAL and its affiliates and their respective officers, directors, employees and successors and assigns (each a “GIMBAL Indemnitee”) against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred by any GIMBAL Indemnitee (including but not limited to costs of defense, investigation and reasonable attorney’s fees) arising out of, resulting from or related to your use of the GBM App or any breach of the GBM App Agreement by you. If requested by GIMBAL, you agree to defend the GIMBAL Indemnitees in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.

In the event of any failure of the GBM App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the GBM App, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the GBM App. Apple is not responsible for addressing any claims by you or any third party relating to the GBM App or your possession or use of the GBM App, including but not limited to: (i) product liability claims, (ii) any claim that the GBM App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party intellectual property infringement claim.

7. U.S. Government Restricted Rights

The GBM App, related materials and documentation have been developed entirely with private funds. If the user of the GBM App is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the GBM App, including technical data or manuals, is restricted by the terms, conditions and covenants contained in the GBM App Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, use of the GBM App is further restricted by the GBM App Agreement. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

8. Dispute Resolution and Waiver of Jury Trial

EXCEPT FOR CLAIMS OR DISPUTES INVOLVING INFRINGEMENT OF INTELLECTUAL PROPERTY, WE EACH AGREE THAT ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, THE APP PRIVACY POLICY, THE GBM APP, OR OUR SERVICES OR PRODUCTS, WILL BE RESOLVED BY BINDING ARBITRATION AND WITHOUT A JURY, RATHER THAN IN COURT. Such arbitration shall take place in the county in which you reside, and shall be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules (and not under any other or ancillary rules or procedures such as the Supplementary Procedures for Consumer-Related Disputes or the Wireless Industry Arbitration Rules). This includes any claims you may assert against other parties relating to services provided to you (such as our suppliers) in connection with this Agreement, the App Privacy Policy, the GBM App, or our other services or products. GIMBAL will pay the costs of filing the arbitration, the costs of administering the arbitration, and the arbitrator’s fees. If the arbitrator finds your claim to be frivolous or filed for an improper purpose, then such fees and costs shall be governed by the AAA rules, and you agree to reimburse GIMBAL such fees and costs paid by GIMBAL that were your obligation to pay under the AAA rules. We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR(S) MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES). The parties waive any right they may have to proceed on behalf of or against a class, and agree that any claim, counterclaim, cross-claim or the like shall be brought on an individual basis and not consolidated with any other party’s claim, counterclaim, cross-claim or the like. We each specifically agree that discovery by each party in arbitration will be limited as follows, unless the arbitrator finds a substantial need for additional discovery: one (1) set of interrogatories narrowly tailored to the issues in controversy and consisting of no more than ten (10) interrogatories including subparts, one (1) set of requests for production of documents narrowly tailored to the issues in controversy and consisting of no more than ten (10) requests for production including subparts and requiring the production of no more than 100,000 pages, one (1) deposition of a non-expert witness, and one (1) deposition of an expert witness, with each deposition lasting no more than six (6) hours of deposition time. The arbitration award shall be in writing, signed by the arbitrator(s), and shall include a reasoned opinion setting forth findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. An arbitration award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other case except to enforce the award itself.

Notwithstanding anything contained herein, in the case of claims or disputes involving infringement of intellectual property, or if the foregoing prohibition on class arbitration is not enforced for any reason, then the immediately preceding paragraph also shall not be enforced and any intellectual property or class action claims shall be brought exclusively in the United States District Court for the Southern District of California, San Diego Division (or, if federal jurisdiction is lacking, in the courts of San Diego, California), and not in arbitration.

If you have a claim that arises from or relates to the Service or the enforceability of this Agreement, before initiating, joining, or participating in any lawsuit, arbitration, or other legal proceeding, you shall give GIMBAL: (1) a written notice of the claim (a “Claim Notice”), at least 30 days before initiating any such proceeding, explaining in reasonable detail the nature of the claim and any supporting facts; and (2) a reasonable good faith opportunity to resolve the claim without the necessity of a lawsuit, arbitration, or other legal proceeding. Any Claim Notice directed to GIMBAL shall be sent to Gimbal, Inc., Attn: Legal Department, 11010 Roselle St, Ste 150, San Diego, California 92121.

Any demand for arbitration or claim in litigation must be filed within one (1) year of the time the cause of action accrued, or the cause of action shall be forever barred.

9. Third Party Beneficiary

You agree that GIMBAL, its affiliates and their respective service providers may rely upon your agreements and representations in the GBM App Agreement, and QUALCOMM Incorporated and its subsidiaries and their respective service providers are third party beneficiaries of the GBM App Agreement, with the power to enforce its provisions against you, including without limitation the liability limitations and warranty disclaimers below for any claim related to or arising out of the GBM App or the GBM App Agreement. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.

The GBM App Agreement is between you and GIMBAL and not with Apple. Apple is not responsible for the GBM App and the content thereof. Apple and Apple’s subsidiaries are third party beneficiaries of the GBM App Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the applicable portion of this Agreement against you.

10. Equitable Remedies

Notwithstanding any other provision of the GBM App Agreement, you hereby agree that if the terms of the GBM App Agreement are not specifically complied with by you, GIMBAL will be irreparably damaged for which recovery of money damages would be inadequate, and therefore you agree that GIMBAL shall be entitled, without bond, other security, proof of damages, to injunctive or other appropriate equitable remedies in a court of competent jurisdiction to protect GIMBAL’s rights under the GBM App Agreement, in addition to any and all remedies available at law.

11. Communication; Surveys; and Feedback.

You agree that GIMBAL may send you, by e-mail and other methods, communications relating to the GBM App, including without limitation welcome messages, information, and surveys and other requests for information. Please note that by agreeing to receive push notifications on your wireless device, you agree to receive push notifications from the GBM App regardless of whether you have opted-out of receiving marketing communications. You understand and agree that your responses to such surveys and any other feedback, suggestions, or ideas and all associated intellectual property rights that you may provide in response to surveys, through the Help form in the GBM App, or provided in any other manner (“Feedback”) shall be owned by GIMBAL and you hereby assign to GIMBAL all of your right, title and interest thereto. By sending GIMBAL Feedback, you agree that (i) your Feedback does not contain confidential or proprietary information of yours or of any third party, (ii) GIMBAL is under no obligation of confidentiality, express or implied, with respect to the Feedback, and (iii) GIMBAL may have something similar to the Feedback already under consideration or in development. You hereby irrevocably release and forever discharge GIMBAL or any of its related, subsidiary or affiliated corporations, directors, officers, employees, agents or service providers (collectively, the “Released Parties”) from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which you now have or hereafter can, shall or may have against the Released Parties or their respecting successors and assigns with respect to the Feedback, including without limitation in respect of how GIMBAL and its affiliates and subsidiaries, directly or indirectly, use the Feedback.

12. Revisions to the GBM App Agreement

UNLESS OTHERWISE PROHIBITED BY LAW, GIMBAL RESERVES THE RIGHT TO REVISE THE TERMS AND CONDITIONS OF THE GBM APP AGREEMENT AT ANY TIME, including changes to any and all documents and policies incorporated therein, and you accept them when you use the GBM App. If you do not agree with any of the amended terms of the GBM App Agreement, then you must uninstall the GBM App and discontinue use. GIMBAL advises you to review the GBM App Agreement periodically.

13. Miscellaneous

A. If any provision of the GBM App Agreement is declared invalid by a court or other tribunal of competent jurisdiction then, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of the GBM App Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

B. Sections which by their sense and context are intended to survive any termination or expiration of these Terms of Service shall so survive.

C. These Terms of Service and the Supply Agreement constitutes the entire agreement between GIMBAL and you relating to the GBM App and supersedes any other agreements between GIMBAL and you relating thereto.

D. You acknowledge that the GBM App is subject to the United States (US) government export control and economic sanctions laws and regulations, which may restrict or prohibit the use, export, re-export, or transfer of the GBM App. You agree that you shall not export or re-export the GBM App, or any portion thereof, in any form, to any destination, person, entity or end use prohibited or restricted by the laws and regulations of the United States or any other jurisdiction or country without the appropriate United States and foreign government export or import licenses or other official authorization. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan, and Syria, but any amendments to the countries under a US embargo or sanction shall apply.

E. The GBM App Agreement shall terminate immediately, without notice, if you fail to comply with any term of the GBM App Agreement. In addition, GIMBAL may terminate the GBM App Agreement at any time upon notice to you. You agree that GIMBAL will not be liable to you or any third party for any modification or discontinuance of the GBM App. Termination will not affect your liability or obligations under the GBM App Agreement for actions you have taken. Upon termination, you agree to immediately cease using the GBM App and to immediately uninstall the GBM App from your device. You understand that until the GBM App is uninstalled it may continue to send information gathered by it to GIMBAL and you agree that any such information shall be handled in accordance with the Privacy Policy.

F. The GBM App Agreement is governed and interpreted in accordance with the laws of the State of California, United States of America, without giving effect to its conflict of laws provisions that would result in the application of the laws of a different state or country. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Any claim, lawsuit or proceeding arising out of or related to these Terms of Use or the App must be brought exclusively in the courts of San Diego, California and you hereby consent to the exclusive jurisdiction and venue of such courts, provided that either party may seek injunctive or other equitable relief in any court with jurisdiction.

G. Any failure to exercise or enforce any right or provision of the GBM App Agreement shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

H. The GBM App Agreement is not assignable, transferable or sublicensable by you except with GIMBAL’ prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of the GBM App Agreement will be null and void ab initio.

I. The section titles in the GBM App Agreement are for convenience only and have no legal or contractual effect.

J. This Agreement is entered into solely in the English language, and if for any reason any other language version is prepared by any party, it shall be solely for convenience and the English version shall govern and control in all respects. If you are located in the province of Quebec, Canada, the following applies: The parties hereby confirm they have requested this Agreement and all related documents be prepared in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.

Effective: February 20, 2014

Beacon End User License Agreement

Gimbal™ Proximity Beacon Software End User License Agreement

This End User License EULA (this “EULA“) is a legally binding agreement between you and Gimbal, Inc. (“GIMBAL”) for the use of the software embedded in your Gimbal Proximity beacon device (the “Beacon“) and any Updates thereto (defined below) (collectively, the “Beacon Software“) as originally delivered by GIMBAL. BY USING THE BEACON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

If you do not agree with the following terms and conditions, you must refrain from using the Beacon. The term “You” in this EULA refers to the individual or business entity using the Beacon.

1. License Grant. Subject to and conditioned upon Your compliance with the terms and conditions of this EULA, GIMBAL hereby grants You a limited, nonexclusive, nontransferable, non-sublicensable, revocable license under GIMBAL’s copyrights to display the Beacon Software, only as embedded in the Beacon and as authorized in this EULA, for your personal and non-commercial use, unless you are expressly authorized by GIMBAL in writing to use the Beacon(s) for commercial purposes. Your limited right of use will automatically expire upon the termination or cancellation of this EULA, by either GIMBAL or You, for any reason.

2. Updates. This EULA will govern any upgrades, updates, supplements and add-on components (if any) to the Beacon Software that GIMBAL may provide to You or make available to You after the date You obtain Your initial copy of the Beacon Software (collectively, the “Updates“), unless we provide other terms along with such Updates. After upgrading, You may no longer use the older version of the Beacon Software. You acknowledge and agree that GIMBAL may automatically check the version of the Beacon Software and/or its components that You are utilizing and may provide Updates to the Beacon Software.

3. Restrictions. You agree not to exceed the scope of the foregoing license, copy, create derivative works, reproduce, modify or distribute the Beacon Software. Subject to applicable law, you agree not to decompile, reverse engineer, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Beacon Software. You agree not to (i) remove any copyright or other proprietary notice from the Beacon Software, (ii) sublicense or transfer the Beacon Software to a third party; (iii) extract or replace any part of the Beacon Software; or (iv) sell, rent, lease, lend, provide commercial hosting services or otherwise transfer the Beacon Software for value. This EULA does not allow you to use the Beacon Software on a Beacon that you do not own or control, and you may not distribute or make the Beacon Software available over a network where it could be used by multiple devices at the same time. You are not permitted to make any copies of the Beacon Software.

4. Third Party Materials. The Beacon Software and any other materials licensed and provided by GIMBAL under this EULA, if any, may contain certain software code and/or materials that are owned by third parties (the “Third Party Materials“). Such Third Party Materials, if applicable, are licensed by third parties under separate or different terms, and are not licensed to You under the terms of this EULA. Your use of such third Party Materials is subject to the terms and conditions set forth in the applicable third party license(s). Copies of the applicable licenses are either provided to You as part of the delivery of the Software or by such other delivery means as GIMBAL reasonably elects. These licenses impose certain obligations on You as a condition of the right to use and license the third party’s software.

5. Term; Termination. This EULA will commence when you first use the Beacon and will continue until terminated. Your rights under this EULA will terminate immediately and automatically without notice from GIMBAL if you fail to comply with any of the terms and conditions of this EULA. In addition, GIMBAL may terminate this EULA at any time upon notice to You by posting on our website located at https://www.manager.gimbal.com/beacon-eula. Upon termination of this EULA, You shall cease all use of the Beacon, including without limitation the Beacon Software, in Your possession or control. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 shall survive termination of this EULA.

6. Privacy; Data Collection and Use. Beacons are part of a system to help provide certain information (e.g., proximate location) to enable services to you and others. We refer to such services as “Proximity-Enabled Services.” Beacons work as follows: Beacons periodically broadcast: (i) a rolling (i.e., intermittently changing) identifier, (ii) battery power level, and (iii) ambient temperature. Such broadcasted information is received by software installed on mobile or fixed devices such as mobile phones, tablets, or devices plugged into wall outlets. We refer to such devices as “Receiver Devices“. The software on any Receiver Device periodically sends us the Beacon’s broadcast information along with the time and location of receipt. We will process and share the information we receive with the applicable Proximity-Enabled Service provider to enable the relevant Proximity-Enabled Service.

To stop a Beacon from transmitting data, remove the battery. If you wish to unsubscribe from any Proximity-Enabled Service, please follow the instructions provided by the Proximity-Enabled Service provider.

7. Intellectual Property Ownership. The Beacon Software is licensed, and not sold to You. You acknowledge and agree (and if You are a business entity, you acknowledge and agree on behalf of yourself and Your Subsidiaries (defined below)), that nothing in this EULA shall convey, assign or otherwise transfer to You any title or ownership rights (including without limitation any Intellectual Property Rights (as defined below)) in or to any of the Beacon Software or any Intellectual Property Rights of GIMBAL. “Subsidiary” of an entity that is a party to this EULA (each, a “First Person“) means any other entity (i) in which the majority (more than fifty percent (50%)) of the voting power held by the shares or other securities entitled to vote for election of directors (or other managing authority) is now or hereafter owned or controlled by such First Person either directly or indirectly or (ii) that does not have outstanding shares or securities but the majority (more than fifty percent (50%)) of the equity interests in which is now or hereafter owned or controlled by such First Person, either directly or indirectly, but only for so long as such ownership or control referenced in clause (i) or (ii) above exists. “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, worldwide.

8. No Grant of Patent or Certain Other Rights. Except for the express copyright license rights granted to You in Section 1 (License Grant), no other rights under any Intellectual Property Rights are granted by GIMBAL under or as a result of this EULA (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). You acknowledge and agree, and if You are a business entity you acknowledge and agree on behalf of Yourself and Your Affiliates, that neither the delivery or other conveyance of any hardware or software, including without limitation the Beacon Software, nor any provision of this EULA (including, without limitation, any provision in any exhibit, SOW, addendum, etc. forming a part hereof) will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (i) any patents of QUALCOMM Incorporated or any of its Affiliates (collectively, “QC Entities“), or (ii) any other Intellectual Property Rights of QC Entities covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the Beacon Software. “Affiliates” of (a) GIMBAL means any present or future corporation or other legal entity that controls, is controlled by, or is under common control with QUALCOMM Incorporated; and (b) of You, if you are a business entity, means any present or future corporation or other legal entity that controls, is controlled by, or is under common control with You, in each of (a) and (b) where control means ownership of more than fifty percent (50%) of the shares, equity interest or other securities entitled to vote for election of directors (or other managing authority)).

9. Other Obligations. You acknowledge and agree (and if You are a business entity You acknowledge and agree on behalf of Yourself and Your Subsidiaries), that (a) this EULA does not modify or abrogate any obligations that You or any of Your Subsidiaries has under any license or other EULA with QUALCOMM Incorporated, including, without limitation, any obligation to pay any royalties, and (b) You will not, and will ensure that each of Your Subsidiaries do not, contend that it has obtained any right, license, authority to infringe, or immunity from infringement liability with respect to any patents of QC Entities under or as a result of this EULA (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise).

10. Open Source. You shall not incorporate, link, distribute or use any third party software or code in conjunction with (i) the Beacon Software (ii) any Beacon Software, products, documentation, content or other materials developed using the Beacon Software, nor (iii) any derivative works that You make using the source code portions of the Beacon Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Beacon Software or other GIMBAL Beacon Software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any intellectual property rights or proprietary rights of GIMBAL or its Affiliates, including without limitation as such rights exist in or relate to the Beacon Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Beacon Software or any other Beacon Software provided by GIMBAL, (2) any Beacon Software, products, documentation, content or other materials developed using the Beacon Software, nor (3) any derivative works that You make using the source code portions of the Beacon Software (if any), with any code or Beacon Software licensed under any version of the GNU General Public License (“GPL“), Affero General Public License (“AGPL“), Lesser General Public License (“LGPL“), European Union Public License (“EUPL“), Apple Public Source License (“APSL“), Common Development and Distribution License (“CDDL“), IBM Public License (“IPL“), Eclipse Public License (“EPL“), Mozilla Public License (“MPL“), or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Beacon Software or other GIMBAL Beacon Software (or any modifications thereto) to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL, or such other open source license. You, and each party receiving Beacon Software or any copies thereof from You, shall not receive any rights to use such Beacon Software or copies thereof in a manner that will cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by GIMBAL or any of its Affiliates (or for which GIMBAL or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License“). These restrictions, limitations, exclusions and conditions shall apply even if GIMBAL or any of its Affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. Also, no act by GIMBAL or any of its Affiliates that is undertaken under this EULA as to any Beacon Software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other intellectual property rights which are owned or controlled by GIMBAL or any of its Affiliates (or for which GIMBAL or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.

11. DISCLAIMER OF WARRANTIES. THE BEACON SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY EXPRESS OR IMPLIED GUARANTEE OR ASSURANCE OF QUALITY, RELIABILITY OR FUNCTIONALITY. GIMBAL, ITS SERVICE PROVIDERS, MANUFACTURERS, LICENSORS, AND ITS AND THEIR AFFILIATES (COLLECTIVELY, “PROVIDERS“) DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE BEACON SOFTWARE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GIMBAL AND ITS PROVIDERS DO NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU AGREE AND ACKNOWLEDGE THAT THE USE, SUITABILITY AND PERFORMANCE OF THE BEACON SOFTWARE IS ENTIRELY, OR TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.

12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, GIMBAL, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE AND LOSS (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, LOSS OF DATA, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR REASONABLE CARE, PERSONAL INJURY OR WORK STOPPAGE), COSTS, EXPENSES AND PAYMENTS, REGARDLESS OF THE ALLEGED LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, PRODUCT LIABILITY AND STRICT LIABILITY, THAT MAY RESULT FROM, OR IN CONNECTION WITH THE USE OR THE INABILITY TO USE THE BEACON SOFTWARE, OR FROM ANY FAILURE, ERROR, OR DOWNTIME IN THE BEACON SOFTWARE, OR FROM ANY FAULT OR ERROR MADE BY GIMBAL’S STAFF, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, REGARDLESS OF WHETHER GIMBAL, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, OR OTHER AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVEN SHALL THE MAXIMUM CUMULATIVE LIABILITY OF GIMBAL, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS EULA, UNDER ANY THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE YOU PAID FOR THE BEACON. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING WITHOUT LIMITATION SECTIONS 11 AND 12) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

13. Indemnification. You hereby undertake to defend, indemnify and hold GIMBAL and its Affiliates, and its and their respective officers, employees, shareholders, directors, agents or anyone acting on their behalf, and GIMBAL’s third party licensors, harmless from and against any claim, action, or demand asserted by any third party and arising from, or otherwise related to, your use of the Beacon Software or your breach of this EULA. In such cases, you will reimburse GIMBAL, or its third party licensor(s), as the case may be, for any expenses, including court fees, attorney fees and the damages (actual and consequential), which GIMBAL or its third party licensor(s), as applicable, incur as a result of such claim.

14. Compliance with Export Restrictions. You acknowledge that all hardware, software, source code and technology (collectively, “Products“) obtained from GIMBAL are subject to the US government export control and economic sanctions laws. You assure that You, Your subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release any Products or direct product thereof to any destination, person, entity or end-use prohibited or restricted under US laws without prior US government authorization to the extent required by applicable regulation. This section shall survive the expiration or termination of this EULA.

15. U.S. Government End Users. This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government. The Software is “commercial computer software” developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this EULA.

16. Amendments to the EULA. GIMBAL may amend and modify this EULA from time to time. Material changes will take effect upon notification to you, which may occur via email or by posting on GIMBAL’s website at https://www.manager.gimbal.com/beacon-eula. Other changes will take effect immediately. You agree to be bound by any of the changes made in the EULA, including changes to any and all documents and policies incorporated thereto. Continuing to use the Beacon will indicate your acceptance of the amended EULA. If you do not agree with any of the amended terms of the EULA, then you must avoid any further use of the Beacon.

17. Governing Law; Jurisdiction. This EULA will be governed by and construed in accordance with the laws of the State of California, U.S.A. without giving effect to any choice of law or conflict of law rules or provisions, whether Federal, or of the State of California or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the State of California. You agree to resolve any dispute or claim that you may have against GIMBAL and to submit to personal jurisdiction in the state and federal courts in the city of San Diego, California. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this EULA.

18. Miscellaneous. The paragraph headings herein are solely for the sake of convenience and will not be applied in the interpretation hereof. The failure of GIMBAL to enforce any rights granted hereunder or to take action against You in the event of any breach hereunder will not be deemed a waiver by GIMBAL as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this EULA is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of this EULA will remain in full force and effect. Any attempt to sublicense, assign or transfer any of your rights, duties or obligations hereunder is void. This EULA constitutes the entire agreement between You and GIMBAL concerning the subject matter hereof and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this EULA. Please keep in mind that the Gimbal Product Privacy Policy is an additional contract that You agree to and by which You are bound. A copy of such terms may be found at https://www.manager.gimbal.com/privacy. Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this EULA shall control.

19. Notices. The Beacon Software is protected by copyright and other intellectual property laws and treaties.

Effective Date: September 24, 2013