HARDWARE-AS-A-SERVICE (HaaS) SUBSCRIPTION
TERMS AND CONDITIONS

These HARDWARE-AS-A-SERVICE (HaaS) SUBSCRIPTION TERMS AND CONDITIONS (“Hardware Terms”) form part of OTORIO Subscription Terms and Conditions (“Agreement”). All capitalized terms used in this document that are not defined below, shall have the meanings given to them in the Agreement. To the extent of any inconsistency, the terms of these Hardware Terms shall take precedence over the Agreement (with respect to the Hardware only).

1. HARDWARE AS A SERVICE SUBSCRIPTION
   1. HaaS Subscription. If specified in the Customer Order Form, OTORIO may offer its Hardware as a service subscription (“HaaS Subscription”) to customers who would like to bundle their investment in the OTORIO solution and procure with OPEX funds. The HaaS Subscription provides an integrated appliance to host the OTORIO Platform. Hardware is licensed and not sold.
   2. HaaS Subscription Term. The HaaS Subscription shall commence on the Effective Date (as set out in the Customer Order Form) and shall expire three (3) years thereafter (“Initial HaaS Term”). Unless otherwise agreed in writing, Customer is committed to purchase a minimum subscription of no less than three (3) years, billed annually. Upon the expiration of the Initial HaaS Term, the HaaS Subscription shall automatically renew for successive one (1) year periods, unless either Party gives written notice to the other Party thirty (30) days before the expiration of the Initial HaaS Term or the relevant subsequent term of its intention to terminate the HaaS Subscription. The yearly subscription may not be terminated by the Customer prior to the expiration of the full three (3) year commitment. Customer shall be liable to pay all fees with respect to the full three (3) year term of the HaaS Subscription.
   3. OTORIO may provide a technical refresh of Hardware (as determined by OTORIO at its sole discretion) from time to time.
2. HARDWARE USE AND RESTRICTIONS
   1. Hardware Use. Customer shall use the Hardware solely during the Term (as specified in the Agreement and: (a) with the OTORIO Platform (as provided by OTORIO); (b) only for the Customer’s internal purposes to receive the value described in the  Agreement (unless otherwise agreed to by OTORIO in writing); and (c) in a careful and proper manner, in accordance with industry standards and any documentation provided by OTORIO and with all applicable laws. Customer may use the Hardware solely to exercise its rights to the OTORIO Platform, as provided in the Agreement and Order Form. Customer must safeguard and protect all Hardware from possible damage until it is returned to and in OTORIO’s possession. If there is any damage to the Hardware beyond normal wear or if the Hardware is lost or stolen, Customer will be liable for the full costs of repair or replacement.
   2. Restrictions. Customer shall not disassemble the Hardware including without limitation, removing any labels, covering plates that bar access to the Hardware ports and/or accessing internal components of the Hardware, except as may be agreed by OTORIO in writing, or as may be directed by OTORIO’s technical support personnel in writing. Customer shall not provide the Hardware to any third party and will not impose or allow any security interest (including liens) to be charged against any Hardware. Customer shall not use Hardware in any way other than as expressly permitted hereunder.
3. DELIVERY AND RISK OF LOSS.
   1. Delivery. Hardware shall be delivered EXW–INCOTERMS©2020 or as otherwise in accordance with the then-current OTORIO terms (or its hardware supplier’s shipping terms). OTORIO (and/or its hardware supplier) reserves the right to re-charge import/export fees and insurance to Customer.
   2. Risk of Loss.  Risk of loss passes to Customer upon shipment of the Hardware to Customer. Insurance, if any, covering the Hardware shall be Customer’s sole responsibility. In the event Buyer rejects or revokes acceptance of any Hardware for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Customer unless and until the Hardware is returned at Customer’s expense to such place as OTORIO may designate in writing. 
   3. Acceptance. All Hardware shall be deemed accepted by Customer as conforming to this Agreement unless written notice of the claimed nonconformity is received by OTORIO within ten (10) days of delivery thereof (even if such Hardware remains uninstalled or unused). Any use of Hardware by Customer shall constitute acceptance of that Hardware by Customer. Unless agreed upon and specified in writing, Customer shall accept partial delivery of any order.
4. HARDWARE AVAILABILITY
   At its sole discretion, OTORIO may vary, update or discontinue the Hardware, or specific versions, features, support, maintenance, from time to time for reasons including but not limited to changes in demand or technology. OTORIO will use commercially reasonable efforts to provide Customer with advance notice of any planned Hardware discontinuation. It is Customer’s sole responsibility to review the website for any such notices. Unless otherwise required by applicable law, OTORIO will not provide a refund of fees paid for Hardware that is subject to a modification. Any refund that may be due under applicable law will, unless prohibited by applicable law, be calculated on a three (3) year straight line depreciation basis.
5. PRICES AND PAYMENT
   1. Customer shall pay for year one (1) of the HaaS subscription provided hereunder in advance. HaaS Subscription fees will be billed annually over the full term of the HaaS Subscription. Unless otherwise specified in these Hardware Terms, Customer Order Form or otherwise agreed to in writing by OTORIO, payment for HaaS subscription will be billed at OTORIO’s then current prices and payment of invoices is due within thirty (30) days from the invoice date. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1.5%) per month or, if less, the maximum rate permitted by law. In the event of the bankruptcy or insolvency of Customer, or the filing of any proceeding by or against Customer under any bankruptcy, insolvency or receivership law, or in the event Customer makes an assignment for the benefit of creditors, OTORIO may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted to OTORIO in Section 13 (‘Termination’) as in the case of a default by Customer under these Hardware Terms. In no event will the Customer be entitled to withhold or offset any payment due hereunder with any amount that may be due by OTORIO to the Customer for any reason whatsoever.
   2. HaaS subscription prices do not include insurance, export packing or any applicable sales, use, withholding, value-added, excise or other direct or indirect taxes, charges, levies, duties, governmental charges, fees or assessments imposed by any jurisdiction, all of which will be paid by Customer. Customer shall reimburse OTORIO if any of the foregoing is paid by OTORIO. OTORIO may, at its sole discretion, adjust all prices stated in currencies other than U.S. dollars for exchange rate fluctuations. OTORIO may change its price lists at any time. Notwithstanding any other provision of these Hardware Terms or the Agreement, price changes due to increase in the cost of the Hardware, including but not limited to, increase in material, labor, licensing, transportation and manufacturing costs or increased taxes and duties, shall (subject to a forty-five (45) day prior written notice to Customer) apply to all outstanding purchase orders, including confirmed purchase orders whose delivery date is after the lapse of the forty-five (45) day period.
6. INTELLECTUAL PROPERTY
   OTORIO (and/or its suppliers or licensors) shall retain sole ownership of all Hardware and nothing in these Hardware Terms or the Agreement transfers any intellectual property rights in and to the Hardware to the Customer (other than the limited license to use the Hardware with the OTORIO Platform in accordance with the Agreement). All rights not expressly granted to Customer under the Agreement are reserved by OTORIO (and/or its suppliers or licensors).
7. PROOF OF CONCEPT
   Without derogating from any other provision of these Hardware Terms, if the Hardware is provided to Customer as part of a proof of concept or evaluation,  the following additional terms will apply.:
   1. Customer shall not use the Hardware for any purpose other than for the POV;
   2. Upon expiration or termination of the POV Agreement, Customer must, upon OTORIO’s instructions, securely and properly package the Hardware and return it to the return location within the timeframe indicated by OTORIO. If Customer fails to return the Hardware as instructed by OTORIO, OTORIO may issue Customer an invoice for the purchase price of the Hardware and payment will be due immediately upon receipt of such invoice.
   3. Customer is solely responsible for removing any and all of Customer’s data from the Hardware prior to return, in accordance with OTORIO’s documented best practices. 
8. WARRANTY
   1. Hardware Warranty Period. The warranty period for the Hardware provided under the Order Form and Agreement will run from the Effective Date (as set out in the Order Form) (or such other period as may be specifically agreed to by the Parties in writing) and shall end three (3) years thereafter, or as otherwise provided by our Hardware suppliers (the “Hardware Warranty Period”).
   2. Warranty. Provided that Customer: (a) is the original purchaser (as evidenced by OTORIO’s sales records, and except where otherwise required by law); and (b) has a valid, fully paid up, unexpired subscription for the OTORIO Platform, OTORIO warrants that during the Hardware Warranty Period, the Hardware shall be free of defects in materials and workmanship and will perform substantially in accordance with the documentation provided by OTORIO with respect to the OTORIO Platform, when used in accordance with such documentation.
   3. OTORIO’s obligations. If Customer notifies OTORIO in writing of a breach of this warranty during the Hardware Warranty Period, OTORIO’s entire liability and Customer’s sole remedy shall be (at OTORIO’s option) to correct, repair or replace the Hardware and/or associated documentation as applicable within a reasonable time. Any items provided as replacement under these Hardware Terms will be warranted only for the remainder of the original Hardware Warranty Period.
   4. Return Procedures. Transportation costs and any import/export added additional fees (including, but not limited to taxes, duties and additional fees imposed by any  jurisdiction) (if any) incurred in connection with the return of defective Hardware to OTORIO shall be borne by Customer. Any transportation costs incurred in connection with the redelivery of a repaired or replacement item to Customer by OTORIO shall be borne by OTORIO; provided, however, if OTORIO determines, in its sole discretion, that the allegedly defective item is not covered by the terms and conditions of the warranty or that a warranty claim is made after the Hardware Warranty Period, the cost of the repair by OTORIO, including all shipping expenses, shall be reimbursed by Customer.
   5. Replacement Procedure. OTORIO will attempt to diagnose and resolve any problem remotely. Upon determination that the issue is related to a malfunction of one of the Hardware components, OTORIO will either issue a replacement of the faulty part or provide a full Hardware unit replacement. If OTORIO is required to replace the Hardware, OTORIO will use commercially reasonable efforts to ship the replacement Hardware to the Customer as soon as reasonably possible. Actual delivery times may vary depending on the Customer’s location.  OTORIO will send the required Hardware to the physical location confirmed by Customer in writing. If Hardware has been replaced, Customer may be required to return the faulty unit to a location OTORIO designates (upon OTORIO’s instructions).
   6. Dead on Arrival. If defective Hardware covered under warranty fails to operate within thirty (30) days from the Activation (as defined in the Agreement), but no more than one hundred and twenty (120) days from the date of OTORIO’s shipment of the Hardware, OTORIO will use commercially reasonable efforts to provide expedited replacement of a new unit within seven (7) business days, following confirmation of any such failure.
   7. Customer’s Responsibilities. Before OTORIO or its Partners replace any Hardware or parts, or provide any services with respect to the warranty, Customer shall: 
      1. Remove all features, parts, options, alterations, data and attachments not under warranty service and shall ensure that the Hardware is free of any legal obligations or restrictions that prevent its exchange.
      2. Follow the service request procedures that OTORIO or its Partners provide;
      3. Back up and secure all programs and data on the Hardware;
      4. Inform OTORIO of changes in the Hardware’s physical location
      5. Provide OTORIO (or its supplier, as instructed) with sufficient and safe access to Customer’s facilities to permit OTORIO to fulfill its obligations (if relevant);
      6. If relevant, ship back the faulty Hardware (or replaceable unit) suitably packaged according to the guidelines as specified by OTORIO, to the designated location;
      7. If relevant, ship the faulty Hardware to OTORIO (or its supplier, as instructed) and provide the courier’s name and tracking number to OTORIO before OTORIO processes the request; and
      8. Securely erase from any Hardware you return to OTORIO all programs and data not provided by OTORIO with the Hardware. You acknowledge that in order to perform its responsibilities under these Hardware Terms, OTORIO (or its suppliers) may ship all or part of the Hardware to third party locations around the world, and you authorize OTORIO (and/or its suppliers) to do so.
   8. No Fault Found. Should the Hardware returned by Customer: (i) be deemed free of defects or ‘no fault found’, or (ii) be missing any Hardware or components, OTORIO will invoice Customer and Customer will pay the cost of the Hardware.
   9. DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS STATED HEREIN, OTORIO MAKES NO WARRANTIES WITH RESPECT TO ANY HARDWARE AND DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT. OTORIO DOES NOT WARRANT THAT THE HARDWARE WILL MEET ANY REQUIREMENTS OR THAT THE OPERATION OF HARDWARE WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, OTORIO DISCLAIMS ANY RESPONSIBILITY FOR MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE HARDWARE OR COMPONENT PART THEREOF. CUSTOMER IS SOLELY RESPONSIBLE FOR REMOVING ANY AND ALL OF CUSTOMER'S DATA FROM THE ALLEGEDLY DEFECTIVE HARDWARE.
   10. THESE WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
   11. Exclusions. 
       1. This warranty covers replacement of any internal components (e.g. fans, power supplies) or the hardware as a whole should it fail due to a manufacturing defect during the Hardware Warranty Period. This warranty does not apply to software, configuration or configuration assistance, or any other product, service, or support provided by OTORIO. OTORIO will replace Hardware with a like model or newer equivalent if the exact hardware purchase is not available. OTORIO does not guarantee backward compatibility if the replacement Hardware is installed into a legacy environment. 
       2. The warranties contained in these Hardware Terms do not apply to (a) repair or replacement caused or necessitated by: (i) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; fluctuations in electrical power beyond those set out in the specifications; failure of air conditioning or humidity control; improper maintenance, or any other misuse, abuse or mishandling; (ii) force majeure including without limitation natural disasters such as fire, flood, wind, earthquake, lightning or similar disaster; (iii) governmental actions or inactions; (iv) strikes or work stoppages; (v) Customer’s failure to follow applicable use or operations instructions or manuals; (vi) Customer’s failure to implement, or to allow OTORIO or its agents to implement, any corrections or modifications to the Hardware made available to Customer by OTORIO (or its suppliers); or (vii) such other events outside OTORIO’s reasonable control; and/or (b) repair or replacement that would be contrary to Sanctions and Export Control Laws. ALL HARDWARE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, OR IF THE HARDWARE WAS REPAIRED OR ALTERED BY PERSONNEL OTHER THAN THOSE AUTHORISED BY OTORIO.
9. LIMITATION OF LIABILITY
   NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER OTORIO NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY HARDWARE, THE HASS SUBSCRIPTION OR ANY OTHER SUBJECT MATTER OF THESE HARDWARE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER OTORIO OR ITS SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (i) ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA OR LOST PROFITS; OR (ii) FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (iii) FOR ANY CLAIMS BASED ON ANY ERROR, DEFECT OR NONCONFORMITY IN THE HARDWARE, FOR ANY AMOUNT IN EXCESS OF THE PRICE PAID TO OTORIO FOR SUCH HARDWARE; OR (IV) FOR ALL OTHER CLAIMS NOT RELATED TO AN ERROR, DEFECT OR NONCONFORMITY IN THE HARDWARE, ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNT PAID TO OTORIO WITH RESPECT TO ANY HARDWARE DURING THE THREE (3) MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
10. RETURN OR DESTRUCTION OF HARDWARE
    At the termination or expiration of the Agreement (or if earlier instructed by OTORIO), You shall return or destroy (upon OTORIOs instructions) all Hardware provided to you.
11. GOVERNMENT REGULATION AND EXPORT CONTROL
    1. You agree that you will not ship, transfer, or export the Hardware into any country, or make available or use the Hardware in any manner, prohibited by law.
    2. The Hardware is subject to export control laws of the United States of America, EU and/or other countries and/or may be subject to additional export control laws applicable to Customer or in Customer’s jurisdiction.
    3. Customer understands and acknowledges that upon entry of the Hardware into the United States or Israel, it becomes subject to regulation by agencies of Israel and/or the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all of Customer’s obligations with respect to the Hardware shall be subject in all respects to such Israeli and/or  United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of Israel and/or the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, and Bureau of Export Administration. Customer warrants that it will comply in all respects with the export and re-export restrictions applicable to the Hardware  and will otherwise comply with the EAR or other United States and Israeli laws and regulations in effect from time to time.
    4. Customer warrants and agrees that it is not: (i) located in, under the control of, or a national or resident of Cuba, North Korea, Iran, Syria, Lebanon or Sudan, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
12. TECHNICAL SUPPORT CONTACT INFORMATION
    Customer may contact OTORIO’s technical support at https://helpcenter.otorio.com.
13. TERMINATION
    Notwithstanding anything to the contrary, OTORIO may terminate these Hardware Terms (including, without limitation, the HaaS Subscription) at any time by providing the Customer with prior notice. Customer shall be deemed in material default under these Hardware Terms and the Agreement if Customer (amongst other things) fails to pay any amounts when due hereunder, cancels or attempts to cancel these Hardware Terms prior to delivery or refuses delivery or otherwise fails to perform any of its obligations in these Hardware Terms or fails to pay OTORIO any sums due under any other agreement. In the event of a material default by Customer, OTORIO may, upon notice to Customer: (a) suspend its performance and withhold shipments, in whole or in part; (b) terminate these Hardware Terms; (c) declare all sums owed to OTORIO immediately due and payable; and/or (d) recall products in transit, retake same and repossess any products held by OTORIO for Customer’s account, without any need for other proceedings, and Customer agrees that all products so recalled, taken or repossessed shall be the property of OTORIO. Exercise of any of the foregoing remedies by OTORIO shall not preclude exercise of any other right or remedy, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to OTORIO under applicable laws. 
14. CHANGES TO THESE TERMS
    OTORIO may amend these Hardware Terms from time to time, by posting a copy of the new terms to its website (or by otherwise notifying Customer via other means). Changes to these Hardware Terms shall be effective thirty (30) days from the ‘Last Updated’ date specified above.

Last updated: May 14, 2023