Mitti Allgemeine Geschäftsbedingungen

We have updated our existing terms and conditions.

These updates are effective on 21 September 2026. We have created an FAQ that you can read here.

Thank you for continuing to be part of the Mitti family.

1. Your Acceptance

   1. This agreement (Agreement) governs any products and services (Services) provided to you by Mitti.

   2. This Agreement is between the Mitti entity that owns or operates the Services that you are using or accessing (listed at https://mitti.com/legal/mitti-group/) (Mitti) and the person or entity agreeing to these terms (you).

   3. You warrant that you are over the age of eighteen and have the power and authority to enter into and perform your obligations under this Agreement.

   4. If you enter into this Agreement on behalf of your company, then “you” in the remainder of this Agreement means your company, and you warrant that you are properly authorised to bind your company to this Agreement.

   5. Where indicated in an Order, any entity that directly or indirectly controls, is controlled by, or is under common control with You (an Affiliate) is also permitted to sign an Order that is governed by this Agreement, in which case all references to “You” in this Agreement are interpreted to refer to your Affiliate. Any such order shall be subject to the terms of this Agreement and the relevant Affiliate shall be deemed to be a party to this Agreement.

   6. You agree to the terms of this Agreement when you submit an Order or create an account to access or use a Service. This Agreement becomes binding on the date that Mitti accepts your Order or first makes the Services available to you, whichever is earlier (Commencement Date).

2. Scope

   1. This Agreement comprises:

      1. the terms specified in the relevant order form completed pursuant to section (13) (Order);

      2. these terms and conditions (General Terms);

      3. the Data Processing Agreement set out in Appendix 1 and Appendix 2 (DPA);

      4. the Service Level Agreement set out in Appendix 3;

      5. the terms applicable to the relevant Service accessible at https://mitti.com/legal/; and

      6. the Mitti policies, being the Privacy Policy and Acceptable Use Policy applicable to the relevant Service accessible at https://mitti.com/legal/, and any other policies or terms referenced in this Agreement (Mitti Policies).

   2. If any of the terms listed in section (2)(a) are inconsistent, the terms first listed will have priority to the extent of any inconsistency.

3. Services

   1. The Services include: (i) the cloud-based, software-as-a-service solutions (Subscription Services); (ii) related support services; and (iii) any other products or services Mitti provides to you as specified in an Order, but excludes:

      1. any data, information, templates, content, code, video, images or other materials or information of any type that you upload to the Subscription Services, generate by using features of the Subscription Services or otherwise provide to Mitti in connection with the Services (Your Data);

      2. any modifications made by you or on your behalf (Your Modifications) to the Services, technology, data, information, programs, material or other content Mitti provides or makes available to you;

      3. materials created by Mitti or users of the Services that are published or made available to you on the Mitti content library (Content Library Materials);

      4. any hardware supplied by Mitti related to the Services; and

      5. any connector/s built or modified by any party other than Mitti or its subcontractors.

   2. You may purchase professional services provided by us and identified in your Order (the Professional Services). Nothing in this Agreement prohibits, restricts, or limits (i) Mitti from performing the same or similar Professional Services for or providing the same or similar work product to any third party, or (ii) you from hiring a third party to perform professional services related to the Services. Professional Services provided by Mitti will be performed in a professional and workmanlike manner. You will provide Mitti with timely access to Your Data reasonably required for Mitti to provide the Professional Services and if you fail to do so, the obligation to provide the Professional Services will be excused until such access is provided.

   3. Mitti reserves the right to make changes to the Subscription Services in its sole discretion from time to time, including the functionality, features, performance, user interface, and usability, and you agree that this Agreement will apply to any changes or updates to the Subscription Services. Mitti will notify you of any change to the Subscription Services (other than No-Charge Services) that reduces its functionality or features in any material respect or if it discontinues any Service and is not replaced by a substantially equivalent function or feature. If Mitti has notified you under this section (3)(c), you may terminate the affected Services upon providing notice to Mitti within 30 days after the date of such notice, and Mitti will refund any prepaid, unused Fees in respect of any terminated Subscription Services. Nothing in this section (3)(c) limits Mitti’s ability to discontinue any Service or to make changes as required to comply with applicable law, address a material security risk, or avoid a substantial economic or technical burden.

   4. Mitti will make the Subscription Services available to you and all individual users nominated, permitted or invited by you to access the Subscription Services (End Users) solely for your internal business operations during the subscription period specified in your Order (Subscription Term) and in accordance with any usage limits or restrictions specified in the applicable Order or this Agreement. The license granted to you under this section (3)(d) is non-exclusive, worldwide, non-sublicensable and non-transferable.

   5. Unless permitted by law or as otherwise expressly permitted in this Agreement, you must not (nor may you encourage, authorise or assist any third party to):

      1. rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Services to a third party;

      2. reproduce, modify, adapt, or create derivative works of, the Services or remove or tamper with any disclaimers or other legal notices in the Services;

      3. reverse engineer, disassemble, decompile, transfer, exchange or translate the Services or otherwise seek to obtain or derive the source code or API;

      4. incorporate the Services into any service that you provide to a third party; or

      5. use the Services to provide services, or to create a service that competes with the Services.

   6. You must promptly notify Mitti in writing of any breach of the above conditions of use.

   7. You are solely responsible for ensuring that any desktop, mobile telephone or handheld device (Devices) and systems are compatible with the Subscription Services and meet any minimum requirements specified by us.

4. No-Charge Services

   1. Mitti may offer certain Services to you at no charge, including free accounts, Third Party Products, trial use, and access to pre-release, early release and beta products (No-Charge Services). You agree that pre-release, early release and beta products are still in development and may contain errors and bugs. Your use of No-Charge Services is subject to any additional terms that Mitti specifies from time to time and is only permitted for the period designated by Mitti, or if no such period is designated, 30 days. Mitti may terminate your right to use No-Charge Services at any time and for any reason in Mitti’s sole discretion, without liability to you.

5. Your Accounts

   1. You must register for an account in order to access or receive the Services and to receive notices and information from Mitti (Customer Account).

   2. All End Users must establish a named account to access the Services (End User Account). Each End User Account must not be shared.

   3. Mitti’s Services are not directed at, nor to be used by, persons under the age of eighteen. You are responsible for ensuring that all End Users meet the age requirement.

   4. You must provide all relevant disclosures to, and obtain all relevant consents from, End Users to allow us to provide the Services to End Users, including Mitti’s use, collection and sharing of information in accordance with our Privacy Policy.

   5. You may specify one or more administrators who may elect to have password protected rights to access administrative account(s) (Admin Account(s)) to administer the Services and End User Accounts.

   6. You are responsible for all actions taken through your Customer Account, all End User Accounts and Admin Accounts under your Customer Account (together, Your Accounts). Your responsibilities include:

      1. maintaining the confidentiality of the passwords associated with each of Your Accounts;

      2. ensuring that only those individuals authorised by you have access to Your Accounts; and

      3. ensuring that all activities that occur in connection with Your Accounts comply with this Agreement.

   7. If you are an End User, your account is managed by the Admin Account(s) (and not you). The Admin Account(s) can control your use of the Subscription Services, including adding or removing you from accessing the Subscription Services, enabling or disabling certain features or functionality within the Subscription Services, and deleting or re-assigning ownership of Your Data and Your Modifications. Mitti is entitled to rely on communications and instructions from Admin Accounts when servicing a Customer Account. You acknowledge that your End User Account is or may become managed by the entity that owns or controls the email address domain (such as your employer) with which your account was established (such as your work email address) and you agree that Mitti may share details of your End User Account with that entity. Mitti is not responsible for any actions taken by Account Admin(s) or the entity that owns or controls the email address domain with which your account was established.

6. Intellectual Property Rights

   1. Mitti and its licensors have and retain all rights, title and interest, including all intellectual property rights, copyright, trade or service marks, designs, patents, rights in circuit layouts, domain names and trade names anywhere in the world (Intellectual Property Rights) in and associated with the Services.

   2. You and your licensors retain ownership of all rights, title and interest, including Intellectual Property Rights, in Your Data.

   3. You grant to Mitti a non-exclusive, worldwide, limited term, royalty-free, sublicensable licence to access, use, modify, reformat, publish, process, copy, distribute, export, and display Your Data to the extent required to enable Mitti to provide the Services to you. Mitti may collect data and other information relating to your use of the Services (Usage Data), and Mitti may use (during and after the Term) such Usage Data for its internal business purposes, including to improve, support and operate the Services, generate aggregated data sets and for reporting and analysis. Mitti may only disclose Usage Data in an aggregated form in a manner that does not identify any individual.

   4. To the extent that you share a template or course which contains Your Data or Your Modifications with other users or publicly via the Subscription Services, you grant to Mitti and each other user a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable licence to access, use, modify, reformat, publish, process, copy, distribute, export, and display such template or course to the extent necessary to make those templates and courses available and to use such templates and courses. You may disable the ability for Your Account(s) (other than Admin Account(s)) to share templates or courses with other users by contacting Mitti’s support team.

   5. If you or your End Users choose to submit any suggestion, enhancement request, recommendation, correction or other feedback relating to the Services (Feedback) to us, you grant to Mitti a worldwide, perpetual, irrevocable, royalty-free licence to use without restriction or limitation and incorporate into the Services any Feedback, and waive all right, title and interest you or your End Users may have in such Feedback.

7. Content Library

   1. The Content Library Materials may contain sponsored content provided to us by industry leaders (Sponsored Content). Sponsored Content contains copyrighted material, trademarks and other proprietary information including, but not limited to, text and graphics. You may use such Sponsored Content in the form it is downloaded into your Account(s) and, except as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded Sponsored Content will be permitted without the express written permission of us and/or the sponsor/copyright owner. No changes in, or deletion of, author attribution, trademark or copyright notice shall be made.

   2. If you download Content Library Materials, to the extent permitted by law:

      1. your use of Content Library Materials is at your own risk;

      2. Mitti excludes all liability to you and any third party in respect of your use of Content Library Materials; and

      3. it is your responsibility to assess (and if necessary, obtain professional advice on) the suitability of Content Library Materials for your purposes and any modifications required to meet those purposes.

8. Your Data

   1. You warrant that Your Data and Your Modifications:

      1. comply with the Mitti Policies, including the Acceptable Use Policy;

      2. are not false, misleading or inaccurate;

      3. do not infringe third party rights (including Intellectual Property Rights and privacy rights), that you own all rights, title, and interest, including Intellectual Property Rights, in Your Data and Your Modifications or that you have otherwise secured all necessary rights in Your Data and Your Modifications as may be necessary to grant the licenses pursuant to this Agreement;

      4. comply with all applicable laws; and

      5. are not infected with viruses or any other malicious computer code, files or programs.

   2. You acknowledge and agree that Mitti may remove Your Data or Your Modifications from the Services and Mitti’s websites if we suspect (acting in good faith) that any of the warranties set out in section (8)(a) are or are likely to be untrue. To the extent practicable, permitted by law and provided it does not pose a risk to Mitti or other users, Mitti will notify you of any removal under section (8)(b).

   3. You must ensure that you obtain all necessary consents from relevant individuals for the use of their Personal Information contained within Your Data in order for Mitti to provide the Services to you.

   4. You acknowledge and agree that you are responsible for preparing and maintaining backups of Your Data and Your Modifications.

   5. You must indemnify, defend and hold Mitti and its affiliates, service providers, officers, employees, contractors and customers (those indemnified) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees) arising out of or in connection with: your breach of section (5)(c) (minimum age), section (5)(d) (End User consent), and section (8) (Your Data). Mitti agrees to provide: (i) prompt written notice to you of any such claim; (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of Mitti at your expense.

9. Integration with Third Party Products

   1. You may choose, in your sole discretion, to integrate the Services with third party products or services (Third Party Products). If you choose to use any Third Party Products in connection with the Services, Mitti may provide such third parties access or use of Your Data to the extent required for the interoperation of the Services with the Third Party Product. Your use of any Third Party Product will be subject to the applicable agreement between you and the relevant third party provider. Mitti is not responsible for any access to or use of Your Data by such third party providers. MITTI DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY PRODUCTS AND FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OF THIRD PARTY PRODUCTS.

   2. Mitti may provide you with access to connector/s to facilitate the interoperation of our Services with Third Party Products used by you. Your use of such connector/s will be subject to any additional terms that Mitti specifies from time to time. Provided that you promptly notify Mitti in writing of any error in respect of the functioning of connector/s, Mitti will use commercially reasonable endeavours to resolve the error with such connector/s within a reasonable period. You understand and agree that Mitti is not liable or responsible for the functionality, reliability, availability, quality or performance of Third Party Products or the interoperability of such Third Party Products with the Services (a connection with a Third Party Product may become unavailable or no longer function properly as a result of changes made by the third party provider). Any support and maintenance for a Third Party Product will be provided by the relevant third party provider (and not by Mitti). To avoid doubt, Mitti is not responsible for any connector/s built by any party other than Mitti or its subcontractors.

10. AI Features

    1. Mitti may provide you with access to features and functionality through the Subscription Services that are powered by third party artificial intelligence systems (AI Features).

    2. You are responsible for any text, images or other content you type in or upload to AI Features (together Input) and any instructions you give to the AI Features designed to perform certain actions (Agents). Any material generated by the AI Features based on your Input is considered Output. You acknowledge and agree that both Input and Output are Your Data. You are responsible for ensuring your Input, your use of Output and your use of any Agents comply with this Agreement and our Mitti Policies. You are responsible for appropriately supervising the actions of your Agents.

    3. You acknowledge and agree that the Output is generated by artificial intelligence. Mitti has not verified the accuracy of the Output and it does not represent Mitti’s views. Mitti makes no warranty or guarantee as to the accuracy, completeness or reliability of the Output and does not accept any liability or responsibility arising in any way from your use of the Output or any omissions or errors contained in the Output.

    4. You acknowledge that any Input you provide, including any Personal Information or commercially sensitive data that you choose to include within that Input, may be shared with third party providers. Third party providers will not use such Input to improve or train their services.

    5. It is prohibited to use AI Features to mislead anyone that the Output is human-generated, provide medical, legal or financial advice, generate legally binding obligations, generate political content, generate source code, generate spam, ransomware or viruses, generate shocking content include profane subjects, generate information to be used for illegal purposes or implement fully-automated decision making. In the event your Output is in breach of this Agreement or otherwise is unlawful, Mitti reserves the right to remove the Outputs, disclose the Output to law enforcement or government authorities and suspend or otherwise terminate Your Account(s).

11. Confidentiality

    1. In this Agreement, Confidential Information of a party (Disclosing Party) means information that is identified as confidential at the time of or shortly after disclosure or would be reasonably known by the other party (Receiving Party) to be confidential due to the nature of the information disclosed or the circumstances surrounding its disclosure, including information about the Disclosing Party’s business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include information: (i) which is in the public domain (such as Content Library Materials) other than through a breach of confidence; (ii) is independently created by, or on behalf of, the Receiving Party without any reference to the Confidential Information and prior to receipt of such Confidential Information; (iii) is rightfully known by the Receiving Party prior to receipt from the Disclosing Party, as evidenced by the Receiving Party’s written record; or (iv) is rightfully obtained by the Receiving Party from a third party without breach of a confidentiality obligation.

    2. Receiving Party must keep confidential and not disclose to any third party Confidential Information of the Disclosing Party, with the exception that a Receiving Party may disclose such Confidential Information:

       1. to:

          1. a third party with the prior written consent of the Disclosing Party; and

          2. the Receiving Party’s, or affiliates or subsidiaries of the Receiving Party’s, officers, agents, professional advisers, employees, contractors, subcontractors, channel partners, service partners, consultants, auditors and insurers, (Representatives) provided that such Representatives are subject to confidentiality obligations no less stringent than under this Agreement in relation to that Confidential Information and have a need to know such Confidential Information; and

       2. where the Receiving Party is legally compelled to do so by any government or any governmental, administrative, regulatory, fiscal or judicial body, department, commission, authority, tribunal, or agency, provided that it first uses commercially reasonable efforts to give the Disclosing Party written notice prior to disclosure if permitted by law and makes only such disclosure as is legally compelled.

    3. Receiving Party must only use Confidential Information of the Disclosing Party for the purpose for which it was disclosed in connection with this Agreement and shall remain responsible for the compliance of its Representatives to whom Confidential Information has been disclosed with their respective confidentiality obligations.

12. Privacy and Security

    1. Mitti implements appropriate technical and organisational measures to ensure the appropriate security of Your Data, including ensuring that any personal data within Your Data is protected against unauthorised or unlawful processing, accidental loss, destruction or damage. Mitti’s technical and organisational security measures are described at https://mitti.com/security/.

    2. Mitti complies with privacy and data protection laws applicable to the provision of the Services to you under this Agreement. We collect, use, and disclose any personal data we collect from you or your End Users in accordance with the Mitti Privacy Policy.

    3. You will comply with all applicable privacy and data protection laws and are responsible for ensuring that you have obtained all individual consents required for Mitti to provide the Services, including from your End Users.

    4. Where (i) the EU General Data Protection Regulation 2016/679 (GDPR); (ii) California Consumer Privacy Act, as amended by the California Privacy Rights Act (CPRA), (Civil Code Section 1798.100, et seq.) (CCPA); or (iii) the laws of other states and territories that create and regulate substantially similar concepts and legal principles as are contained in the GDPR apply to any of Your Data, the terms of the DPA will apply.

    5. Mitti will use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials (Malicious Code)into the Subscription Services. To avoid doubt, Mitti is not responsible for any Malicious Code introduced by you or your End Users.

    6. Other than as expressly noted in this section (12), you acknowledge that:

       1. the Services have not been designed to meet the requirements of laws or standards that may apply to you in respect of Your Data, including without limitation, the

          Health Insurance Portability and Accountability Act 1996, the Payment Card Industry Security Standards, or any other law or standard applicable to the handling, storage, processing, transfer, security or location of Your Data in any jurisdiction; and

       2. it is your responsibility to satisfy yourself that your use of the Services will allow you to meet any legal obligations applicable to you in respect of Your Data, and Mitti disclaims all liability for your non-compliance with any such laws or standards arising from your use of the Services.

13. Orders and Subscriptions

    1. To use the Services, you must complete an Order by either:

       1. completing the online order page (Online Order) which contains details of:

          1. the Services being ordered;

          2. the applicable fees (Fees);

          3. the Subscription Term applicable to any Subscription Services;

          4. the applicable billing details, and the currency in which you will be billed; and

          5. if applicable, details of any hardware or other products made available by Mitti in the future you wish to order; or

       2. execute a paper-based quote, order form or statement of work (OrderForm) provided by Mitti which sets out the relevant information in section (13)(a).

14. Billing and Payment

    1. The applicable Fees shall be as specified in your Order. You must pay all Fees for the Services in accordance with the rates, currency and billing cycle or payment milestones set out in the applicable Order(s).

    2. Other than where expressly provided for under this Agreement, all Fees are non-refundable, non-cancellable and non-creditable. Quantities purchased cannot be decreased during the relevant Subscription Term.

    3. If you reach or exceed any usage limits or restrictions specified in an applicable Order or this Agreement, we may: (i) bill you for additional use, and you agree to pay us in accordance with any payment terms specified in the Order or an invoice; (ii) require you to purchase additional usage or pay overages to continue to access the Services; or (iii) disable or degrade performance of the Services until you purchase additional usage or your usage limit or restriction resets for the next applicable period. Limits or restrictions may be based on: (i) type of plan; (ii) number and type of End User; (iii) use case; (iv) period or volume of use within the Subscription Term; (v) credits or other usage-based units; or (vi) other units of measure. Unless otherwise specified in the Order or at the time of the purchase, Mitti will charge you for any increased usage exceeding the specified usage limits or restrictions in the applicable Order at the then-current rates, prorated for the remainder of the Subscription Term. Any unused allowance expires at the end of the relevant period and does not roll over.

    4. You must provide Mitti with written notice at least thirty (30) days prior to the end of the then-current Subscription Term, or, if applicable, reflect this change through the functionality provided in the Services, if you wish to make any changes to your then-current Order.

    5. If you elect to pay by credit card, debit card or other similar online payment method, Mitti will charge you the applicable Fees immediately. If you elect to pay by invoice, you must pay all invoiced Fees within thirty (30) calendar days after the date of invoice. If Mitti incurs any costs in order to collect overdue Fees from you, you agree that all such collection costs incurred shall immediately become due and payable to Mitti (including but not limited to legal fees and collection agency fees). The obligation to pay Mitti such collection costs shall survive termination or expiration of this Agreement.

    6. The Fees payable by you for our Services exclude any duties, customs fees, or taxes (other than Mitti’s income tax), including any VAT, GST or other applicable sales tax (Taxes). To the extent that such Taxes are applicable, you must pay us such Taxes in addition to the Fees. If you have obtained an exemption for such Taxes, you must provide Mitti with any information Mitti reasonably requests to determine whether Mitti is obliged to collect Taxes from you, including your relevant Tax identification number. You will pay Mitti for the Services without any withholding for Taxes. If you are required to withhold Taxes by law, you will pay such additional amounts as are necessary so that the net amount received by us after such withholding will be equal to the full amount that we would have received if no withholding had been required.

15. Limitation on Liability

    1. Except as expressly stated in this Agreement or required under any applicable law, the Services and any other goods or services provided by Mitti to you are provided on an “as is” basis, and Mitti does not make any representation or warranty (express or implied) in respect of the Services or any other goods or services provided by Mitti to you, including, without limitation, any implied warranty of merchantability, of fitness for a particular purpose, that operation of the Services will be uninterrupted or error free, or that all defects will be corrected.

    2. If you reside in Australia and are a “consumer” for the purposes of the Australian Consumer Law (ACL), then if the Services fail to meet any consumer guarantee under the ACL, and the total amount paid by you for the Services under this Agreement is less than the statutory minimum (which as at the date of this Agreement is AUD$100,000), Mitti’s liability to you for failure to meet such consumer guarantee is limited, to the extent permitted by law, to (at Mitti’s election) supplying the Services again or paying for the cost of having the Services supplied again.

    3. To the maximum extent permitted by law, in no event will Mitti be liable in connection with this Agreement, whether in contract, tort, equity, statute or otherwise for:

       1. your misuse of the Services, acts or omissions of your personnel;

       2. Service outage or interruption, or any damage or losses, arising from networks or websites outside of Mitti’s control;

       3. any injury, damage to property, or loss to any person in relation to your use of the Services; or

       4. subject to section (12), breach of any law applicable to your business activities, including but not limited to any work health and safety or food safety law, in connection with your use of the Services.

    4. To the maximum extent permitted by law, in no event will, whether in contract, tort, equity, statute or otherwise:

       1. either party or its affliates be liable in connection with this Agreement for loss of profits, loss of revenue, loss of anticipated savings, loss of use, loss or corruption of data, costs of delay or procurement of substitute or replacement goods and services, business interruption, failure of security mechanisms, loss of goodwill, and any other form of indirect, incidental, special or consequential or punitive damages, even if a party has been advised of the possibility of such damages or if a party’s remedy otherwise fails of its essential purpose; or

       2. either party’s together with all of its affiliates’ aggregate liability for any claims in connection with this Agreement, including under an indemnity, exceed the total Fees actually paid by you under this Agreement during the twelve (12) month period immediately prior to the event giving rise to the liability. This section (15)(d)(ii) does not limit your or your affiliates’ payment obligations under section (14).

16. IP Indemnity

    1. Subject to section (16)(c), Mitti will defend you against any third party claim alleging that the Subscription Services infringes any copyright or any patent (a Claim), and will indemnify you against any damages and costs finally awarded by a court of competent jurisdiction or any settlement amounts agreed in writing by Mitti, provided that you provide Mitti:

       1. prompt written notice of any such claim;

       2. the exclusive right to control and direct the investigation, defence, or settlement of such claim; and

       3. all reasonably necessary cooperation and assistance in the defence and investigation of the Claim at Mitti’s expense.

    2. In the event of a Claim, Mitti may, in its sole discretion:

       1. procure the right for your continued use of the Subscription Services in accordance with this Agreement;

       2. replace the Subscription Services with a similar service with materially equivalent functionality; or

       3. terminate your Order in respect of the Subscription Services affected by the Claim and refund any prepaid, unused Fees in respect of the terminated Subscription Services.

    3. The indemnity obligation in this section (16) will not apply to the extent that any Claim arises:

       1. in connection with your use of No-Charge Services;

       2. as a result of misuse of the Subscription Service or use of the Subscription Service with any third party data (including any Content Library Materials), or in combination with any Third Party Products other than that for which the Subscription Services were designed or provided;

       3. as a result of modification to the Service made by any party other than Mitti or its subcontractors; or

       4. in connection with circumstances covered by your indemnification obligations under section (8)(e).

    4. THIS SECTION (16) CONSTITUTES YOUR EXCLUSIVE RIGHTS AND REMEDIES, AND MITTI'S SOLE LIABILITY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SUBSCRIPTION SERVICES.

17. Term and Renewal

    1. This Agreement commences on the Commencement Date and expires when all Subscription Terms have expired, and all other Orders have been completed, unless otherwise terminated in accordance with this Agreement (Term).

    2. Unless otherwise set out in the relevant Order, each Subscription Term will automatically renew for periods equal to the initial Subscription Term at the then-current rates unless either party elects not to renew the Subscription Term by providing written notice to the other party at least 30 days prior to the expiry of the then-current Subscription Term, in which case your subscription will expire at the end of the then-current Subscription Term.

18. Termination and Suspension

    1. You may terminate Subscription Services at any time by written notice or through the functionality provided by the Subscription Services. If you choose to terminate this Agreement in accordance with this section (18)(a), you will not be entitled to any credits or refunds as a result of such termination.

    2. Either party may terminate this Agreement in whole or part, including any particular Order(s), immediately upon providing notice to the other party if:

       1. the other party is in material breach of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach; or

       2. if the other party ceases to operate, has an administrator appointed, enters a deed of company arrangement or other form of administration involving one or more of its creditors, is subject to an order that it be wound up, declared bankrupt, or that a liquidator or receiver be appointed, or otherwise becomes insolvent or is unable to meet its financial obligations.

    3. Mitti may suspend the Services (including any of Your Accounts) immediately, or terminate this Agreement in whole or part, including any particular Order(s), if:

       1. you are in material breach of this Agreement more than two times during the Term notwithstanding any cure of such breaches;

       2. you have failed to pay any Fees within seven (7) days after Mitti has provided written notice to you that you failed to pay such Fees by the relevant due date (Notice of Non-payment);

       3. you infringe Mitti’s Intellectual Property Rights; or

       4. your use of the Services breaches any applicable law or any of the Mitti Policies.

          Mitti will notify you of any suspension or termination under section (18)(c) (where practicable).

    4. If Mitti suspends your use of the Services pursuant to its rights under this Agreement:

       1. Mitti will continue to charge you Fees during the suspension period and you must pay any outstanding Fees prior to Mitti resuming the provision of the Services; and

       2. Mitti will only resume the provision of the Services once you have cured (to Mitti’s reasonable satisfaction) the matter that caused the suspension.

    5. If any Fees are not received within seven (7) days after Mitti has provided you with a Notice of Non-payment then without limiting Mitti’s rights or remedies, Mitti may:

       1. condition future invoices, Subscription Terms and Orders on a different billing cycle than the payment terms specified in the then-current Order; and

       2. accelerate your outstanding Fees under the Agreement, such that all outstanding Fees due for the remaining duration of any Subscription Term become immediately due and payable.

19. Consequences of Termination

    1. if the Agreement or any Order is terminated:

       1. by you for Mitti’s breach, then Mitti will refund any prepaid, unused Fees that relate to the terminated Subscription Services; or

       2. by Mitti for your breach, then you must pay to Mitti any and all outstanding Fees due for the remaining duration of any Subscription Term, which will become immediately due and payable upon termination.

    2. Upon the date that this Agreement or any Order expires or is terminated, then you and your End Users must cease all access and use of the Services and delete Mitti’s Confidential Information in your possession or control, including any software or other materials that Mitti has provided to you, or made accessible for download by you. Upon our request, you will certify that you have complied with this section (19)(b). You must export Your Data from the Subscription Services before the end of the Subscription Term, as you will not have access to Your Data after expiration or termination of this Agreement. Mitti will delete or destroy Your Data as specified in Mitti’s Privacy Policy.

    3. The following provisions will survive any termination or expiration of this Agreement: sections (6), (7), (8)(a), (8)(e), (9)(a), (10)(b), (10)(c), (10)(d), (11), (14), (15), (16), (19)(a), (19)(b), this (19)(c) and (21), and any other sections which by intent or meaning have validity beyond termination or expiration of this Agreement.

20. Amendments

    1. Mitti may update or modify the terms of this Agreement from time to time, including the Mitti Policies and any other referenced documents, to respond to changes in Mitti’s products, services, business or as required by law, by giving notice to you. If an update or modification to the terms of this Agreement materially reduces your rights, you may terminate this Agreement upon providing notice to Mitti within 30 days after the date of Mitti’s notice to you under this section (20) (with such termination to be effective on the date of your notice or the effective date of the update or modification, whichever is later), and Mitti will refund any prepaid, unused Fees in respect of any terminated Subscription Services.

21. General

    1. Unless otherwise agreed in your Order, the laws governing this Agreement and the courts exercising exclusive jurisdiction depend on where you are domiciled (as specified at https://mitti.com/legal/mitti-group).

    2. If any provision of this Agreement is held to be invalid, illegal, or unenforceable that provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and the remainder of this Agreement shall be construed in a manner as to give greatest effect to the original intention of this Agreement.

    3. The failure of either party to exercise any right provided in this Agreement in any instance will not be deemed to be a waiver of such right.

    4. Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

    5. Other than in respect of an obligation to pay any Fee or other amount, neither party will be liable for non-performance or inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, pandemic, riot, labour condition, governmental action, power interruption, telecommunication, data and internet disturbance) that was beyond the party's reasonable control (Force Majeure Event).

    6. Your use of any website or software that is not provided by Mitti to access or download the Services will be governed by the terms and conditions applicable to that website or software. Mitti is not responsible for any consequences resulting from the use of such website or software, including but not limited to any damage to your property, including your Device, or the transfer of any computer virus or similar malicious code, except to the extent such consequences are caused by the Service.

    7. Any notices to you may either be posted on our website, via an in-product notification or given in writing (which may be by email). Billing-related notices will be sent to the billing contact designated by you. All other notices will be sent to your Admin Account(s). Any notices to Mitti, and any questions, concerns or complaints relating to the Services must be in writing and addressed to legal@mitti.com.

    8. Any dispute, controversy or claim arising out of or relating to this Agreement, or any aspect of the relationship between you and Mitti, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury, unless you opt out of this arbitration agreement within 30 days of the first acceptance date of any version of this Agreement (the Opt Out Deadline). You may opt out of these arbitration procedures by emailing us at legal@mitti.com by the Opt Out Deadline and stating that you reject the agreement to arbitrate. Unless you opt out by the Opt Out Deadline, you agree that you and Mitti are each waiving the right to sue in court and to have a trial by a jury. The arbitrator shall have the power to rule on any challenge to its own jurisdiction, the arbitrability of any claim, or to the validity or enforceability of any portion of the agreement to arbitrate. The arbitrator shall also have the power to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. You and Mitti agree to arbitrate solely on an individual basis, and agree that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitration shall be administered in accordance with the rules of the relevant arbitration association in place in the jurisdiction set out in Section 21(a) , and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

    9. This Agreement, and any rights granted hereunder, must not be transferred or assigned by either party (assigning party) without the prior express written consent of the other party, except to:

       1. a third party participating in a merger with, or acquisition of the assigning party; or

       2. an affiliate or subsidiary of the assigning party.

    10. You grant Mitti the right to identify you as a customer and to use your logo across Mitti’s marketing materials, including our website. You may notify us that you do not wish to be identified as a customer or for us to use your logo, by contacting us at brand@mitti.com.

    11. This Agreement contains the entire understanding between the parties regarding the subject matter of this Agreement. To avoid doubt, resellers of the Services are not authorised to modify the terms of this Agreement or make any representations, undertakings or other legally binding commitments on behalf of Mitti.

    12. You represent that neither you nor any of your End Users are on any U.S. government denied-party list, and that you will not permit any End User to access or use any service in a U.S.-embargoed country or region.

    13. If this Agreement is translated into any language other than English, the English text will govern unless expressly stated otherwise in the translation.

Appendix 1 (Data Processing Agreement)

1. In this Appendix and in Appendix 2:

   1. Californian Data Protection Laws means the CCPA, as amended by the CPRA.

   2. Customer Personal Data means any personal data which Mitti (or its sub-processors) processes on your behalf as a processor in the course of providing Services.

   3. Data Protection Laws means all data protection laws applicable to the processing of Customer Personal Data under this Agreement, including: (i) the EU Data Protection Laws; (ii) the UK Data Protection Laws; and (iii) the Californian Data Protection Laws.

   4. EU Data Protection Laws means the GDPR and any national laws which implement or supplement or replace the same from time to time.

   5. EU International Transfer means:

      1. a transfer of personal data from you to Mitti or its affiliates (or vice versa in the case of transfers of personal data between the parties where both parties act as controllers); or

      2. an onward transfer of personal data from Mitti or its affiliates, where such transfer would at the time of the transfer be prohibited by EU Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the EU Standard Contractual Clauses to be established under section 2 of Appendix 2.

   6. EU Standard Contractual Clauses means the Standard Contractual Clauses forming part of Decision 2021/914/EC (as amended or replaced from time to time), including their appendices and with the relevant Modules and Options set out under section 2 of Appendix 2.

   7. personal data, personal information, consent, controller, processor, data subject, sale, share, commercial purpose, business purpose and processing mean those concepts, roles and activities as defined in the applicable Data Protection Laws.

   8. UK Addendum means the Addendum to the EU Standard Contractual Clauses issued by the UK Information Commissioner’s Office in accordance with S119A of the UK Data Protection Act 2018 and incorporating:

      1. the party details as set out in section 4 of Appendix 2 to this Agreement, inserted in Table 1 (Parties) of such UK Addendum;

      2. the first option in Table 2 to clarify the UK Addendum incorporates the EU Standard Contractual Clauses;

      3. the list of parties and the description of the transfer of personal data, each as set out in section 4 of Appendix 2, inserted in Table 3 (Appendix Information) of such UK Addendum;

      4. the description of the technical and organisational security measures as set out at https://mitti.com/security/, inserted in Table 3 (Appendix Information) of such UK Addendum;

      5. the list of sub-processors published at https://mitti.com/legal/privacy-sub-processors/, inserted in Table 3 (Appendix Information) of such UK Addendum; and

      6. the option neither party set out in Table 4 of such UK Addendum.

   9. UK Data Protection Laws means Data Protection Act 2018 and UK's version of the GDPR which is part of UK law by virtue of the European Union (Withdrawal) Act 2018 ("UK GDPR") and any legislation applicable in the UK in force from time to time relating to privacy or the processing of personal data.

   10. UK International Transfer means:

       1. a transfer of personal data from you to Mitti or its affiliates (or vice versa in the case of transfers of personal data between the parties where both parties act as controllers); or

       2. an onward transfer of personal data from Mitti or its affiliates,
          where such transfer would at the time of the transfer be prohibited by the UK GDPR (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the relevant UK Standard Contractual Clauses to be established under section 5 of Appendix 2.

   11. Security Incident means a breach of Mitti’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data.

2. Mitti is the controller in respect of personal data, such as account registration details, that we collect directly from users of the Services (End Users) and users of No-Charge Services, and which we use for the purposes of our business.

3. You are the controller and we are the processor in respect of any other personal data (including within Your Modifications) that is uploaded by End Users and/or users of No-Charge Services including data, templates, information, content, code, video, images or other material of any type (Materials), or which is provided by your administrators (see section (5) of the General Terms).

4. To the extent that the Services comprise the processing of personal data where we are the controller and you are the controller: the provisions of sections 2, 3, 4 and 5 of Appendix 2 to this Agreement shall apply (where applicable).

5. Mitti will make available our Privacy Policy at our website and where you provide us with personal data in connection with the Agreement where we will act as the controller (for example where you provide contact details for use in administering the Agreement), you agree to ensure that these individuals are provided with a copy of our Privacy Policy. Where we are a processor and not a controller, it is your responsibility to ensure that in accordance with relevant Data Protection Laws:

• There is a lawful basis for the collection and processing of personal data; and

• You have provided an appropriate privacy policy to the End Users and other data subjects.

Appendix 2 (Data Processing Agreement)

General

The provisions of this Appendix form part of this Agreement to the extent that section (12)(d) of the General Terms applies.

Terms of Data Processing

1. Where Mitti acts as processor of personal data on your behalf, Mitti shall:

   1. process personal data only on your reasonable documented instructions unless required to do so by law; in such a case, Mitti shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. You acknowledge and agree that your final and complete instructions regarding the processing of Customer Personal Data are set out in this Agreement. Any additional or alternate instructions must be agreed in writing by the parties (and Mitti will be entitled to charge a reasonable fee to cover any costs incurred in complying with them);

   2. ensure that persons authorised to process the personal data on our behalf have committed themselves to confidentiality obligations or are under an appropriate statutory obligation of confidentiality;

   3. implement appropriate technical and organisational security measures to ensure a level of security for the personal data which is appropriate to the risks to individuals that may result from the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data. The measures that we consider appropriate are described at https://mitti.com/security/;

   4. notify you without undue delay and, where feasible, no later than 72 hours after becoming aware of a Security Incident. Mitti shall make reasonable efforts to identify the cause of the Security Incident, mitigate the effects and remediate the cause to the extent within Mitti’s reasonable control. Mitti’s notification of a Security Incident is not an acknowledgement by Mitti of its fault or liability;

   5. not engage another processor without your prior specific or general written authorisation. A list of sub-processors currently engaged by Mitti and authorised by you is published at https://mitti.com/legal/privacy-sub-processors/. You must subscribe to receive notice of any addition or replacement of a sub-processor in the list of sub-processors by entering your details in the form at https://mitti.com/legal/privacy-sub-processors/. You may notify us in writing of any objections to new sub-processors (provided the objection is based on reasonable grounds relating to data protection). If we receive such an objection, the parties will discuss such objections in good faith and Mitti will use its reasonable commercial endeavours to resolve any such objection. If the parties are not able to resolve the objection, you may terminate the affected Services by providing 30 days written notice to Mitti. We shall impose obligations on any sub-processor that we appoint on your behalf that are equivalent to the terms set out in this Appendix 2. We shall remain liable for the performance of these sub-processors;

   6. taking into account the nature of the processing, assist the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the EU Data Protection Laws or the UK Data Protection Laws and any assistance provided by us to you to respond to requests from: (i) data subjects to exercise their rights under Data Protection Laws; or (ii) regulatory authorities, shall be at your cost on a time and materials basis;

   7. at the choice of the controller, delete or return all the personal data to the controller after the end of the provision of services relating to processing, and delete existing copies save that Mitti shall be entitled to retain Customer Personal Data where required by Data Protection Law or another applicable law, including any Australian state or Commonwealth law to which the processor is subject, or where such data is required for Mitti’s internal record keeping or where it is necessary for use in any legal proceedings; You must notify us of Personal Data that you wish to have returned or deleted within thirty (30) days following the effective date of termination; and

   8. make available to the controller all information reasonably necessary to demonstrate compliance with the obligations laid down in Article 28 of the EU Data Protection Laws and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller (in each case at the controller's cost). Any assistance provided by us to you to demonstrate compliance with Data Protection Laws shall be provided at your cost. The timing, scope and duration of any audit shall be mutually agreed by the parties. You shall not be entitled to carry out audits more than once in any twelve (12) month period, other than where a Security Incident has taken place, you shall be entitled to carry out an additional audit within thirty (30) days of Mitti notifying you of such Security Incident. You shall ensure that any third party auditor appointed by you is (i) not a competitor of Mitti; and (ii) is committed to appropriate confidentiality obligations. You and/or any third-party auditor shall comply with Mitti’s standard policies and procedures when accessing Mitti’s premises or systems.

EU International Transfers

2. With respect to any EU International Transfers, Mitti acting on its own behalf and as agent for each Mitti affiliate and you acting on your own behalf and as agent for each of your affiliates, hereby enter into the EU Standard Contractual Clauses incorporating: (i) the general clauses (Clauses 1-6); (ii) Modules One (Transfer Controller to Controller), Two (Transfer Controller to Processor), and Four (Transfer Processor to Controller) as applicable and the relevant options as specified in the table set out in this section 3 of this Appendix 2; and (iii) with the Annexes populated as set out below:

• Annex I of the EU Standard Contractual Clauses shall be pre-populated with the details set out in section 4 of this Appendix 2; and

• Annex II of the EU Standard Contractual Clauses: Mitti’s technical and organisational measures are described at https://mitti.com/security/.

a. The EU Standard Contractual Clauses shall come into effect upon commencement of an EU International Transfer.

b. Prior to the commencement of any EU International Transfer to or from a sub-processor, Mitti will use its reasonable endeavours to enter into the EU Standard Contractual Clauses with such sub-processor, incorporating the general Clauses (Clauses 1-6) and Module 3 (Transfer Processor to Processor).

EU Standard Contractual Clauses: Modules and option

3. For the purposes of section 2 of Appendix, the parties agree that the following Modules and Options of the EU Standard Contractual Clauses shall be deemed to be incorporated:

Details of data processing

4. For the purposes of section 2 of this Appendix 2, the parties agree that Annex I of the EU Standard Contractual Clauses shall be pre-populated with the following details:

UK International Transfers

5. With respect to any UK International Transfers, you acting on your own behalf and as agent for each of your affiliates (each as “data exporter”) and Mitti acting on its own behalf and as agent for each Mitti affiliate (each as “data importer”) hereby enter into the UK Addendum in respect of any UK International Transfer from you or your affiliate to Mitti or a Mitti affiliate.

6. The UK Addendum shall come into effect upon commencement of a UK International Transfer.

7. Prior to the commencement of any UK International Transfer to or from a sub-processor, Mitti will use its reasonable endeavours to enter into the EU Standard Contractual Clauses and the UK Addendum with such sub-processor, incorporating the general Clauses (Clauses 1 – 6) and Module 3 (Transfer Processor to Processor).

California Data Protection Laws

8. Where Mitti acts as service provider and processes personal information of Californian residents on your behalf pursuant to the California Data Protection Laws, Mitti shall process Customer Personal Data for the purpose of providing the Services to you.

9. Mitti agrees that it shall not: (i) sell or share Customer Personal Data; (ii) retain, use, or disclose Customer Personal Data for any purpose, including a commercial purpose, other than for the business purposes specified in this Agreement; (iii) retain, use, or disclose Customer Personal Data outside of the business relationship between Mitti and you; or (iv) combine personal information with Customer Personal Data that Mitti receives from or on behalf of another person or collects from its own interaction with data subject, unless, for (ii), (iii), or (iv) above, as otherwise permitted of a service provider by California .

Appendix 3 (Service Level Agreement)

Mitti’s Core Services will have the following monthly uptime percentage, excluding Excluded Downtime (Mitti SLA).

Core Services means that part of the Subscription Services used to conduct inspections, flag issues, assign actions, generate reports, communicate with other End Users within your organisation, manage assets, train or track End Users, and view analytics, but does not include any other features (such as integrations, sensors, site sign-on or industry modules).

Excluded Downtime means time that the Services are not available to you or your End Users because of (i) Force Majeure Events or other factors outside Mitti’s reasonable control, including internet connections; (ii) your equipment (including your Devices and any hardware devices that interact with the Subscription Services), software, network connections or other infrastructure; (iii) Your Data or Your Modifications; (iv) Content Library Materials; (v) Third Party Products; (vi) routine scheduled maintenance or reasonable emergency maintenance; (vii) any services provided by a third party; (viii) duress alert functionality; or (ix) your use of the Services in a manner not authorised in the Agreement.

The Mitti SLA does not apply to: (i) No-Charge Services; (ii) any Services that are accessed in China; or (iii) non-production environments, such as staging and testing environments.

Mitti will use its commercially reasonable endeavours to notify you of any downtime, including in respect of any required maintenance. You can subscribe for notifications for status updates at https://status.mitti.com/.

If Mitti confirms that it has failed to meet the Mitti SLA, we will apply service credits, which will be calculated in accordance with the table below, (Service Credits) against a future payment you owe to us for the affected Subscription Service, provided that your account is fully paid up, without any overdue payments or disputes. Service Credits are calculated as a percentage of the monthly fees attributed to the affected Subscription Service.

Service Credits may not be transferred or applied to any other Service. Service Credits may not be exchanged for, or converted to, monetary amounts, and are capped at fifteen days of Core Services in any calendar month. No refunds will be given for unused Service Credits.

To claim Service Credits, you must notify Mitti within thirty (30) days from the end of the calendar month in which you claim Mitti failed to meet the Mitti SLA. Failure to comply with this requirement will forfeit your right to receive the Service Credits. The notification must include the dates and times the Core Services were unavailable for your End Users.

THIS MITTI SLA STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY MITTI TO MEET THE MITTI SLA.