March 20, 2019
Software Agreement
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, the Service Provider (PickTrace, or “SP”) will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at SP’s sole discretion, for any purpose deemed appropriate by SP. SP will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 SP will undertake commercially reasonable efforts to make the Services available. Notwithstanding the foregoing, SP reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to SP.
1.3 Subject to the terms hereof, SP will provide reasonable support to Customer for the Services from Monday through Friday during SP’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit and for the benefit of End Users; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.2 Customer will cooperate with SP in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as SP may reasonably request. Customer will also cooperate with SP in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to SP.
2.4 Customer hereby agrees to indemnify and hold harmless SP against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although SP has no obligation to monitor the content provided by Customer or Customer’s use of the Services, SP may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.6 Customer further acknowledges, agrees to and is bound by the Terms of Service and Privacy Policy on SP’s website (as they may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.
Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). SP is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. SP does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, SP may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Customer acknowledges that SP does not wish to receive any Proprietary Information from Customer that is not necessary for SP to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, SP may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, SP alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to SP. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
5. PAYMENT OF FEES
5.1 Customer will pay SP the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay SP for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on SP’s net income) unless Customer has provided SP with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
6. TERM & TERMINATION
6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the then-current subscription term.
6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
SP represents and warrants that it will not knowingly include, in any SP software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, SP fails to comply with the warranty in this Section, Customer may promptly notify SP in writing of any such noncompliance. SP will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. Warranty disclaimer
Except for the warranties expressly provided herein, the services and SP proprietary information and anything provided in connection with this agreement are provided “as-is,” without any warranties of any kind. SP (and its agents, affiliates, licensors and suppliers) hereby disclaim all warranties, express or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
9. Limitation of liability
In no event will SP (or any of its agents, affiliates, licensors or suppliers) be liable for any indirect, punitive, incidental, special, or consequential damages, or cost of procurement of substitute goods, services or technology, arising out of or in any way connected with the use of the services or anything provided in connection with this agreement, the delay or inability to use the services or anything provided in connection with this agreement or otherwise arising from this agreement, including without limitation, loss of revenue or anticipated profits or lost business or lost sales, whether based in contract, tort (including negligence), strict liability, or otherwise, even if SP has been advised of the possibility of damages. The total liability of SP, whether based in contract, tort (including negligence or strict liability), or otherwise, will not exceed, in the aggregate, the lesser of (i) ten thousand dollars, or (ii) the fees paid to SP, hereunder in the three month period ending on the date that a claim or demand is first asserted. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by SP are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11. PUBLICITY
Neither party will make any news or press release regarding these Terms without the other party’s prior written consent. You grant us the right to include your name and logo as a customer in our promotional materials; provided however, that you can opt to have your name excluded from such use by us except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to sales@picktrace.com; the subject line in such email should be entitled “Non-use of Subscriber Name.”
12. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with SP’s prior written consent. SP may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. However, the Terms of Service at https://picktrace.com/terms/ shall also apply – and shall control with respect to any conflicts with the terms and conditions of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SP in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. SP will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Mateo County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by SP. SP is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
March 20, 2019
MANAGED HARDWARE AGREEMENT
1. Title.
PickTrace agrees to lease to Customer the equipment set forth in each order form, invoice, purchase order, or other PickTrace ordering document referencing this Agreement that is provided by PickTrace to Customer (each, an “Order”) and all related materials (including all software embedded therein (“Software”)) (“Hardware”). Notwithstanding anything else, any pre-printed terms of any order form, invoice, purchase order, or other ordering document provided by Customer are hereby rejected in their entirety, and Customer acknowledges that PickTrace’s provision of any Hardware or Software to Customer is expressly conditional upon Customer’s acceptance of the terms contained in this Agreement to the exclusion of all other terms. As between the parties, PickTrace shall own all rights, title and interest (including all intellectual property rights) in and to the Hardware, and Customer may not use the Hardware except as expressly provided herein. Customer may use the Software solely as embedded into the Hardware and solely for purposes of operating the Hardware as permitted herein.
2. Use.
Subject to the terms and conditions herein, Customer may use the Hardware only for the purpose of running the PickTrace software that is licensed to Customer pursuant to a separate software license agreement (the “SaaS Product”), and solely during the Term, as defined below. In addition, if Customer orders wireless connectivity services (“Wireless Services”) from PickTrace in connection with the Hardware, Customer will not use such wireless connectivity for any purpose (including, without limitation, to stream any video or otherwise access the internet), other than to access and use the SaaS Product in its intended manner. The Hardware shall not be used for any other purpose or in any manner for the benefit of any third party. Customer shall not disassemble or reverse engineer any Hardware, attempt to derive any source code of the Software, or develop any improvement, modification or derivative thereof or include any portion thereof in any other equipment or item.
3. Fees and Payment.
Customer shall pay PickTrace the fees set forth in the applicable Order (“Fees”). All Fees are payable quarterly in advance, except that the first payment (pro rated for the number of days remaining in the applicable calendar quarter) shall be due upon the Delivery Date (as defined below), and are non-refundable. Any amounts not paid when due shall bear a late fee equal to one and one half percent (1.5%) per month of the amount then outstanding or the maximum rate permitted by law, whichever is less. Customer shall be responsible for any sales, use, property or similar tax or assessment with respect to the Hardware.
4. Operation.
Customer shall operate the Hardware in accordance with any applicable operating manuals and manufacturer’s instructions. Customer shall comply with all domestic and international laws, regulations and procedures to which the use and operation of the Hardware may be or become subject.
5. Hardware Maintenance and Inspection.
PickTrace will provide Hardware in good working order. Customer shall be responsible for any damage or loss to the Hardware while in Customer’s possession, reasonable wear and tear excepted. Customer shall not make any modification, alteration or addition to the Hardware. Customer agrees to pay and be responsible for all costs relating to (i) installation, (ii) deinstallation, (iii) validation, (iv) training, and (v) all of PickTrace’s out-of-pocket expenses (including traveling and lodging costs) reasonably incurred by PickTrace in connection with (i)-(iv). Customer shall allow PickTrace to inspect the Hardware at any time, during Customer’s normal business hours, on Customer’s premises. Further, PickTrace shall be entitled to enter Customer’s property at any time and take possession of Hardware if PickTrace has a reasonable belief that the Hardware is being misused or that Customer is in breach of this Agreement. Customer shall not pledge, encumber or allow any lien to be attached to the Hardware or remove the Hardware from the premises where originally located.
6. Markings.
Customer will not remove any product identification or notices of any proprietary or copyright restrictions from any Hardware or any related materials.
7. Delivery and Return of Hardware.
PickTrace shall use its commercially reasonable efforts to deliver the Hardware to the address and on the agreed upon estimated delivery date set forth in the applicable Order (“Delivery Date”). Delivery Dates are estimates only and are not guaranteed. Customer hereby assumes the full expense of transportation and in-transit insurance to Customer’s premises and installation of the Hardware. Upon expiration or termination of this Agreement, Customer shall return the Hardware in the same operating order, repair, condition and appearance as received, reasonable wear and tear excepted, to an address specified by PickTrace.
8. Repair, Replace, Upgrade Program.
Provided that Customer is in compliance with the terms and conditions of this Agreement, PickTrace shall provide the repair, replacement and upgrade services for the Hardware as described in Exhibit A.
9. Disclaimer of Warranties.
PickTrace leases the hardware and provides the wireless services “as is” and PickTrace makes no representation or warranty of any kind with respect to the hardware, software, or wireless services, whether oral or written, express, implied, statutory or otherwise, including, without limitation, any warranty of merchantability, fitness for a particular purpose, noninfringement, or as to the design or quality of workmanship of the hardware.
10. Limitation of liability.
In no event shall PickTrace be liable for any special, indirect, reliance, punitive, exemplary or consequential loss or damage, costs or claims, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), including without limitation loss or damage resulting from cost of procurement of substitute goods, services, or technology, loss of data, interruption or loss of use, and loss of profit or revenue, even if PickTrace has been advised of the possibility of such loss or damage. In no event shall PickTrace be liable for any amount in the aggregate in excess of the fees actually paid by customer to PickTrace under this agreement.
11. Indemnification; Insurance.
Customer shall indemnify and hold PickTrace harmless against any and all claims, demands, damages, losses, liabilities, costs, attorneys fees and expenses made against or sustained by PickTrace arising from Customer’s use of the Hardware.
12. Term and Termination.
The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect for one (1) year unless otherwise terminated as permitted hereunder (the “Initial Term”), and thereafter shall renew automatically for additional periods of one (1) year each (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party notifies the other of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as applicable. Each Order shall be for the period of time specified in such Order unless earlier terminated (the “Initial Order Term”) and, if not otherwise specified in such Order, shall thereafter renew automatically for additional periods of one (1) year each (each, an “Order Renewal Term” and together with the Initial Order Term, the “Order Term”) unless either party notifies the other of its intent not to renew such Order at least thirty (30) days prior to the end of the Initial Order Term or then-current Order Renewal Term, as applicable. Either party may terminate this Agreement if the other party materially breaches any provision of this Agreement and fails to cure such breach within ten (10) days. PickTrace may terminate this Agreement immediately on written notice if Customer seeks protection under any bankruptcy, receivership, trust deed, creditor arrangement, composition or comparable proceeding. Upon termination or expiration of this Agreement, all rights, licenses and obligations hereunder shall cease except that (a) subject to the immediately following sentence, this Agreement shall remain in effect and govern until the end of each then-effective Order Term, and (b) Sections 3, 5, 7, 9, 10, 11, 12 and 13 shall survive. If PickTrace terminates this Agreement for any reason other than an election not to renew, then each then-effective Order shall also automatically terminate.
13. Publicity.
Neither party will make any news or press release regarding these Terms without the other party’s prior written consent. You grant us the right to include your name and logo as a customer in our promotional materials; provided however, that you can opt to have your name excluded from such use by us except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to sales@picktrace.com; the subject line in such email should be entitled “Non-use of Subscriber Name.”
14. General.
This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement, negotiations or understandings between the parties, whether oral or written, as to the subject matter hereof. However, the Terms of Service at https://picktrace.com/terms/ shall also apply – and shall control with respect to any conflicts with the terms and conditions of this Agreement. This Agreement may be executed in one or more counterparts, together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No modifications, consents or waivers to this Agreement will be effective unless in writing and signed by both parties. This Agreement is governed by the laws of the State of California, without regard to the conflicts of laws provisions thereof. Customer shall not transfer or assign its rights or obligations hereunder without written consent of PickTrace and any such attempted transfer or assignment shall be void. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Any notice to be given under this Agreement shall be in writing and shall be deemed given when deposited in the U.S. mail, first class postage prepaid to the address of such party specified herein, or when sent by confirmed facsimile.
