DigitalAsset^TM Services Agreement

These terms and conditions (Agreement) govern your purchase and use of FiberSense DigitalAsset^TM where you have not entered into a separate agreement with us.

The FiberSense entity which enters into this Agreement with you, and the governing law and jurisdiction venue applicable to it, are determined by reference to your entity’s region of incorporation as follows:

Region	FiberSense Entity	Governing Law & Jurisdiction Venue
North America (i.e., United States of America and Canada)	Fiber Sense US LLC, a Delaware limited liability company with its principal place of business located at1111 Lincoln Road, Suite 500, Miami Beach, FL 33139.	Delaware, USA
APAC (excluding ANZ)	Fiber Sense Singapore Pte. Ltd. with its registered office address located at182 Cecil Street, #23-02 Frasers Tower, Singapore 069547	Singapore
Australia & New Zealand (ANZ)	Fiber Sense Operations Pty Ltd (ACN 645 285 383) with its registered office address located at1A/1110 Middle Head Road, Mosman NSW 2088	New South Wales, Australia
Rest of World, including United Kingdom and European Union member states	FiberSense UK Limited, a private limited company incorporated in the United Kingdom under company number 14527932, with its registered office address located at1 Chapel Street, Warwick, United Kingdom, CV34 4HL	England & Wales

By accepting a Service Order or continuing to use the Services, you agree to be bound by the terms and conditions set out in this Agreement.

1. SERVICES

   1. Promptly following your acceptance of a Service Order, and subject to any Special Conditions, FiberSense will seek access to the Environment, and install and configure the relevant Services to the Network. The Services shall be configured to deliver and display the DigitalAsset detection and insights capabilities, as further detailed in the Specification.

   2. On and from each RFS Date in respect of a Service Order, and subject to the Customer’s ongoing compliance with the provisions of this Agreement, FiberSense grants to the Customer an indefeasible right of use (IRU) over the Services on the Network for the duration of the Service Order Term.
   3. The Services include:
      1. the setup and provisioning of the Services, such as the procurement of dark fiber, power supply, dedicated Internet connectivity and colocation space for the installation and operation of FiberSense Equipment;
      2. geolocation activities;
      3. the setup of and access to the FiberSense secure portal (Portal);
      4. initial training and demonstration of the Portal for relevant Customer Personnel;
      5. the provision of network operations support on a 24 hours, 7 days a week basis; and
      6. regular reviews with FiberSense technical/project teams regarding detection events, alarms and data.
   4. The Services do not include interdiction services or the provision of field crew.
   5. You acknowledge and agree that the ability of FiberSense to provide the Services and perform its obligations under this Agreement is subject to FiberSense obtaining the required access to and continual use of the Environment.
2. FEES
   1. Subject to Section 2.3, FiberSense will charge, and the Customer agrees to pay, the fees set out in each Service Order (Fees).
   2. Unless otherwise expressly set out in a Service Order:
      1. all amounts are in US Dollars and are exclusive of all taxes and import duties incurred in connection with the sale and use of the Services;
      2. FiberSense will issue one invoice for each Prepayment as set out in the Service Order promptly following the commencement of the period to which the Prepayment relates;
      3. FiberSense will issue monthly invoices on the first day of each calendar month for 1/12^th of the ARC. If the RFS Date falls on a day other than the first day of a calendar month, the first invoice will be pro-rated accordingly; and
      4. all invoices are payable by no later than 30 calendar days from the invoice date.
   3. At no greater frequency than once per calendar year, FiberSense may increase the ARC in an amount that is the lesser of:
      1. the then current annual consumer price index published by the U.S. Bureau of Labor Statistics; and
      2. 2% of the then current ARC.

3. TERM
   1. This Agreement commences on the date the Customer accepts a Service Order and continues until there are no Service Orders in force between FiberSense and the Customer (Term).
   2. Each Service Order commences on the date the Customer accepts the Service Order and continues for the period following the RFS Date specified in the Service Order (Initial Service Order Term).
   3. Upon the expiry of the Initial Service Order Term, each Service Order will automatically renew for successive 12 month periods (each a Service Order Renewal Term), unless the Customer notifies FiberSense at least 90 days prior to the expiry of the Initial Service Order Term or then current Service Order Renewal Term (as the case may be) that the Service Order will not so renew.
   4. For the purposes of this Agreement, the Service Order Initial Term and all Service Order Renewal Terms are collectively referred to as the Service Order Term.
4. DATA
   1. Other than as expressly set out herein, nothing in this Agreement operates to transfer or assign ownership in any proprietary rights of any kind from one Party to any other Party.
   2. FiberSense acknowledges that all right, title and interest in Geographic Information System data the Customer provides to FiberSense under or in connection with this Agreement (GIS Data)vests in the Customer.
   3. The Customer grants to FiberSense a non-exclusive, perpetual, royalty-free, fully paid-up, world-wide, irrevocable, transferable license, sublicensable to FiberSense’s Affiliates only, to use and copy the GIS Data for the purpose of enabling, maintaining and improving the Services.
   4. The Customer acknowledges that, subject to Section 4.2, all right, title and interest in data generated by or through the Services of any kind (Data), including that which may be accessed by the Customer in the Portal (Portal Data) vests in FiberSense immediately upon its creation.
   5. Subject to Section 4.6, FiberSense grants to the Customer an exclusive, royalty-free, fully paid-up, world-wide, irrevocable, non-transferable license for the Term, sublicensable to Customer’s Affiliates only, to use the Portal Data for the sole purpose of receiving the benefit of the Services. FiberSense agrees to provide all reasonable assistance to the Customer in understanding and interpreting the Portal Data.
   6. The Customer must not sell, disclose, or incorporate into its own products or services any Data in whole or in part except for internal uses for the sole benefit of its Affiliates or as otherwise expressly consented to in writing by FiberSense. The Parties acknowledge and agree that a breach by the Customer of this Section constitutes a material breach of the Agreement. In addition to other available remedies to it under this Agreement and at applicable law, FiberSense may immediately suspend or terminate the Customer’s access to the Services and its license in the Portal Data if it reasonably suspects:
      1. a breach of this Section by the Customer; or
      2. any act or omission by the Customer’s Affiliates or Personnel which would breach this Section if carried out by the Customer.
5. FIBERSENSE EQUIPMENT
   1. Throughout the Term, the FiberSense Equipment shall remain the property of FiberSense./li>
   2. Nothing this Agreement operates to transfer or assign ownership in any proprietary rights of any kind in the FiberSense Equipment.
   4. Unless otherwise expressly agreed by the Parties in writing, the Customer must not, and must not permit any third party acting under the Customer’s authority to relocate, modify, tamper with, attempt to repair or otherwise interfere with the FiberSense Equipment. The Parties acknowledge and agree that a breach by the Customer of this Section 5.3 will constitute a material breach of this Agreement.
6. DEFAULT & TERMINATION
   1. In this Agreement, a Default by a Party (the Defaulting Party) shall be deemed to have occurred under this Agreement if:
      1. there is a material breach of this Agreement by the Defaulting Party, and the Defaulting Party fails to cure such breach within thirty (30) days after written notice from the other Party (the Non-Defaulting Party) specifying such breach, provided that if the breach is of a nature that cannot be cured within said thirty (30) day period, a Default shall not have occurred so long as the Defaulting Party has commenced cure within said thirty (30) day time period and thereafter diligently pursues cure to completion;
      2. in relation to the Defaulting Party or any of its Affiliates: (i) an order is made or an effective resolution is passed for its winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration; (ii) a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of its undertaking or property; (iii) a holder of an encumbrance takes possession of or exercises any other rights arising from the encumbrance over the whole or any substantial part of its undertaking or property, or indicates an intention to do so; (iv) it becomes insolvent or any circumstance exists or arises which would require a court to presume that it is insolvent; (v) it enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them; (vi) it stops, suspends or threatens to stop or suspend paying its debts as and when they fall due; or (vii) any analogous event occurs in relation to it under the laws of any applicable jurisdiction.
   2. In the event of any Default hereunder, the other Party (the Non-Defaulting Party) may do any one or more of the following: (i) terminate this Agreement upon 14 calendar days advance written notice; (ii) if FiberSense is the Non-Defaulting Party, it may suspend the IRU and the provision of the Services on 14 calendar days advance written notice; (iii) pursue any other remedies available to it under this Agreement; and/or (iv) initiate the dispute resolution process contained in Section 13.  The Parties intend for a Party’s good faith participation in the dispute resolution process described in Section 13 to constitute a necessary pre-requisite to the commencement by such Party of any legal action arising out of or in connection with this Agreement.
   3. A waiver by a Non-Defaulting Party at any time of any of its rights regarding a particular breach or Default of a Defaulting Party under this Agreement shall not be deemed a permanent waiver of such rights, nor shall any such waiver be deemed a waiver of any rights in connection with any subsequent breach or Default.
7. ASSIGNMENT
   Except in the case of assignment by FiberSense to one of its Affiliates, neither Party shall assign its rights under this Agreement without the prior written consent of the other Party, which may be granted or withheld in its sole discretion. 
8. FORCE MAJEURE
   1. Neither Party shall be liable for any failure of performance under this Agreement due to causes beyond such Party’s reasonable control including, but not limited to:
      1. acts of God, fire, explosion, vandalism, cable cut, flood, storm, or other similar natural disaster;
      2. terrorist acts, insurrection, riot, national emergency, war or other catastrophe;
      3. failure of Internet, colocation or power services;
      4. inability to obtain equipment, material or other supplies due to strike, lockout or work stoppage; or
      5. any law, order, regulation, direction, action or request of any civil or military governmental authority.
9. CONFIDENTIALITY
   1. In this Agreement, “Confidential Information” means the specific terms of this Agreement and any information, data or other materials which is disclosed by one Party (Disclosing Party) to any other Party (Receiving Party), in connection with performing this Agreement to the extent that such information is marked or identified as confidential or proprietary or would be reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure.  The Specification (to the extent not made public by FiberSense), the Data and all technical information regarding the Services shall be the Confidential Information of FiberSense.
   2. Information shall not be deemed Confidential Information if (i) it is independently developed by or for a Receiving Party, (ii) it is lawfully received by a Receiving Party free of any obligation to keep it confidential, (iii) it becomes generally available to the public other than by breach of the Agreement, or (iv) it was known to a Receiving Party prior to the Disclosing Party’s disclosure of same.<
   3. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request.  Each Receiving Party shall hold all Confidential Information in confidence.  Each Receiving Party:
      1. shall use such Confidential Information only for the purposes of performing its obligations and/or enforcing its rights under the Agreement;
      2. shall reproduce such Confidential Information only to the extent necessary for such purposes;
      3. shall restrict disclosure of such Confidential Information to Personnel that have a need to know for such purposes and who are bound to obligations of confidence no less stringent than those set out in this Section;
      4. shall not disclose the Disclosing Party’s Confidential Information to any person without prior written approval of the Disclosing Party except as expressly provided in the Agreement or as required by law, by court order, by administrative order of an agency having jurisdiction, or in the enforcement of its rights under the Agreement; and
      5. shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. 
   4. In the event a Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, court order or administrative order of an agency having jurisdiction, the Receiving Party will, if such notice is permitted by law, notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek judicial relief from the required disclosure, and reasonably cooperate with the Disclosing Party in any efforts the Disclosing Party may take to obtain protective measures in respect to the required disclosure.
   5. The Parties agree that breach of this Section may cause irreparable injury for which monetary damages are not an adequate remedy; accordingly, each Party may seek injunctive relief and any other available equitable remedies to enforce the provisions of this Section.
10. PUBLICITY 
    1. Subject to Section 10.2, no Party shall issue any public announcement, press release or other disclosure regarding the terms and conditions of this Agreement, the Parties’ relationship under this Agreement, or the Data created pursuant to this Agreement, except after receiving written authorization from all other Parties.
    2. Subject to compliance with any relevant branding guidelines, each Party may make general references to the existence of the relationship between the Parties in materials disclosed to the public.
11. REPRESENTATIONS & WARRANTIES
    1. Each Party represents and warrants to all other Parties as follows:  (i) the execution, acceptance and/or delivery of each Service Order and the performance of obligations hereunder have been duly authorized; (ii) this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms; (iii) it has the power and authority to grant the rights it purports to grant and perform the obligations it undertakes to perform pursuant to this Agreement; (iv) to the best of its knowledge and belief, it is in material compliance with all laws, rules and regulations and court and governmental orders related to the operation of its business; and (v) it shall comply with all applicable laws and regulations when exercising its rights and performing its obligations under this Agreement.
    2. Each of the signatories to any Service Order warrants and represents that he or she has been duly authorized to execute such Service Order on behalf of the Party for whom he or she purports to sign it, and that each Service Order and this Agreement are binding on such Party in accordance with its terms.
    3. Except for the express representations and warranties set out in this Section, all Services are provided on an “as is” basis with no warranties of any kind. FiberSense expressly disclaims any and all other warranties, express and implied, including warranties of merchantability, fitness for a particular purposes, title and non-infringement, and any warranties arising from a course of dealing, usage or trade practice. Without limiting the generality of the foregoing, FiberSense does not warrant that the Services will be uninterrupted, error-free or will enable a prevention of Network outages in any or all circumstances.
12. LIABILITY
    1. Nothing in this Agreement shall limit any Party’s liability for:
       1. personal injury, fraud or willful misconduct; or
       2. such other liability which cannot be excluded or limited by applicable law.
    2. Subject to Section 12.1, no Party shall be liable whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, for any direct or indirect economic losses, loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, or loss or damage to goodwill or any other consequential damages arising out of or in connection with this Agreement or the relationship established by it, however caused and regardless of whether foreseeable.
    3. Notwithstanding any provision to the contrary in this Agreement (but without limitation to Sections 12.1 and 12.2), FiberSense’s maximum aggregate liability for all claims, liability or losses arising out of or in connection with this Agreement (whether under contract, in tort, under statute or otherwise) is limited to an amount equal to the aggregate Fees paid by the Customer over the Term.
    4. Each Party has a duty to mitigate damages for which any other Party may be responsible.
13. DISPUTE RESOLUTION
    1. Except for urgent injunctive relief, or actions to compel compliance with this dispute resolution process, the Parties agree to use the dispute resolution procedures set forth in this Section with respect to any dispute or claim arising out of or relating to this Agreement or the relationship established by it (each, a Dispute).
    2. All discussions occurring and documents exchanged pursuant to this Section are the Confidential Information of the Parties and are inadmissible for any purpose in any legal proceeding involving the Parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation process.
    3. Should any Dispute arise, a Party may give all other Parties written notice of the Dispute (each, a Dispute Notice).  The relevant Parties to the Dispute shall use good faith efforts to resolve the Dispute through negotiation within thirty (30) days of the date on which the Dispute Notice is delivered.  If those Parties do not resolve the Dispute within such thirty (30) day period, then any of them may commence legal proceedings in a court of competent jurisdiction.
14. GOVERNING LAW & JURISDICTION
    This Agreement and all matters arising out of this Agreement shall be governed by the laws of relevant place set out at the table at the beginning of this Agreement. The Parties irrevocably agree that the courts of that place shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this Agreement or its subject matter without regard to conflicts of law principles.
15. NOTICES
    1. Unless otherwise provided elsewhere in this Agreement, any notice to be given to any Party under this Agreement will be in writing and directed to the address for that Party set out in the relevant Service Order to which the notice relates, marked to the attention of, and may be sent by email to, the relevant Party’s last known relationship manager.
    2. Notices shall be deemed received if delivered by hand, overnight courier, normal first class post or electronic transmission.
    3. Notices shall be deemed to have been delivered:
       1. immediately if delivered in person before 5.00pm on a business day, otherwise on the next business day;
       2. the business day after dispatch if sent by overnight courier;
       3. two business days after posting if sent by prepaid registered post; or
       4. immediately upon electronic transmission if sent before 5.00pm on a business day, otherwise on the next business day.
    4. Any Party may change its notice address by giving notice to all other parties in accordance with this Section.
16. MISCELLANEOUS
    1. Entire Agreement.  This Agreement, along with any Service Order, Specification, written agreements or other documents executed by the Parties in connection with this Agreement, constitutes the entire agreement between the Parties regarding the subject matter thereof, and supersedes any and all prior oral or written agreements between the Parties regarding the subject matter contained therein. FiberSense may unilaterally vary the terms and conditions of this Agreement by providing written notice to the Customer.
    2. Interpretation. In this Agreement, unless the contrary intention appears:
       1. headings are for convenience only and do not form part of this Agreement;
       2. the common law rule that the construction of a document least favorable to the Party who was responsible for its preparation or who seeks to rely on it or who seeks to benefit from it should be preferred is expressly excluded;
       3. the use of the singular includes the plural, and vice versa;
       4. the Customer and FiberSense may each be referred to as a “Party,” and collectively as the “Parties.”
       5. “Affiliate” means any person who directly or indirectly Controls, is Controlled by, or is under common Control with that Party;
       6. “ARC” means the Annual Recurring Charge, or 12 times the Monthly Recurring Charge, set out in a Service Order.
       7. “Control” or “Controlled” means (i) ownership of 50% of the voting power to elect the directors of a company, or (ii) greater than 50% of the ownership interest of a company;
       8. “Customer”, “you” or “your” means the one or more entities which enter into Service Orders from time to time throughout the Term.
       9. “Environment” means the equipment, facilities and services that enable the Services to be performed;
       10. “Equipment” means network components including, but not limited to, any gateway or edge electronic device, antenna, node, concentrator, bridge, receiver, transmitter, transceiver, router, detector, device, switch, hub or communications lines/cables, and software;
       11. “FiberSense”, “we”, “our” or “us” means the entity which enters into this Agreement with you as determined by the table at the beginning of this Agreement.
       12. “FiberSense Equipment” means any Equipment owned and provided by FiberSense in connection with this Agreement;
       13. “Network” means the optical fiber or other infrastructure the Customer owns, operates and/or holds other rights over and in relation to which the Services are, or will be, performed under this Agreement;
       14. “Personnel” means employees, contractors, agents, professional advisers and auditors;
       15. “RFS Date” means, in relation to the Services provided on the whole or part of the Network, the date on which FiberSense notifies the Customer that the relevant Service is ready for activation;
       16. “Services” means FiberSense’s proprietary technology that provides asset monitoring and insight services as more fully described in the Specification;
       17. “Service Order” means an order or similar document into which this Agreement is incorporated setting out the Fees payable by the Customer to FiberSense in exchange for an IRU over the Services;
       18. “Special Conditions” means any terms and conditions set out in a Service Order; and
       19. “Specification” means the particulars of the DigitalAsset Service made available to the Customer or publicly from time to time, as updated, replaced or amended.
    3. Severability.  If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected thereby, but shall instead continue in full force and effect, to the extent permitted by law.
    4. Survival. Those provisions of this Agreement that by their nature and import must survive the expiration or earlier termination of this Agreement in order to be given their full force and effect shall so survive.
    5. No Third Party Beneficiaries.  This Agreement is made and entered into for the sole benefit of Parties to it.  No third party shall be deemed to have any rights under this Agreement and there are no third party beneficiaries to this Agreement.