APERIA TECHNOLOGIES, INC.
These Master Terms and relevant warranty, services and other terms cited herein (or in the Sales Quote as defined below) at various embedded URLs (collectively with the relevant Sales Quote, the “Terms”)permit the particular Customer identified on the Sales Quote attached or referring to these Master Terms to purchase (or lease) hardware products (“Products”) and/or obtain on-line services and/or related services (“Services”) from AperiaTechnologies, Inc. (“Aperia”), in each case for support of its internal operations. The Terms set forth the terms and conditions under which the relevant products and Services will be provided.
1. Sales Quote.The “Sales Quote” is an Aperia-generated document executed by Customer and accepted by Aperia (in each case in writing or electronically) that sets forth particular Products and/or Services being acquired by Customer from Aperia, the amounts to be paid by Customer to Aperia in connection therewith and certain other terms. Sales Quotes may be amended or supplemented in writing or electronically by mutual agreement to add or delete items and terms. In the event that Customer provides any purchase order, terms, and conditions, or similar document to purchase or lease products or obtain Services, the Terms will supersede same, whether or not the relevant Sales Quote precedes or is subsequent to same, except as specifically referenced in the Sales Quote.
2. Financial and Payment Matters
2.1 Invoices and Payment Terms. Amounts payable by Customer are as set forth in the applicable Sales Quote. Except as set forth in the Sales Quote, Aperia will invoice the Customer for amounts due. Amounts are due net 30 days from the invoice date and payments will be made without abatement, deduction, or setoff. Amounts may be paid through an Aperia-approved automatic payment process.No refunds of any deposits or prepaid fees will be given in the event of early termination by Customer or termination by Aperia for breach by Customer.
2.2 Taxes. Except for taxes based on Aperia’s net income, amounts payable per the Sales Quote by Customer do not include any sales, use, excise, privilege, or other taxes or assessments imposed or levied at any time by or under the authority of any federal, state, or local law, rule, or regulation(“Taxes”), all of which are the responsibility of, and will be paid by, Customer. If Aperia pays any such Taxes, Customer will, upon demand (including upon invoice from Aperia for Taxes that Aperia is required to collect and remit), reimburse Aperia for such amounts.
2.3 Overdue Charges. Amounts unpaid when due will accrue overdue charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Aperia may condition future Services renewals and Sales Quotes on payment terms shorter than those specified in Section 2.1.
2.4 Suspension of Service. If any amount owed by Customer under the Terms is overdue, Aperia may, without limiting its other rights and remedies, suspend Services to Customer. Aperia will not exercise its rights under this Section 2.4 so long as Customer promptly notices Aperia of the disputed charges, the applicable charges are under good faith dispute and Customer is cooperating diligently to resolve the dispute.
3. Certain Hardware Terms
3.1 Delivery and Installation, etc. of Product. For Product and other items purchased or leased hereunder, all shipping and delivery dates are estimated and assume prompt receipt of all necessary information from Customer. Aperia will not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays in delivery. Product(s) and other items will be shipped ExWorks (per Incoterms 2020) Aperia’s facility or Aperia-designated logistics partner (as applicable) in California, whereupon title to Products and other items that have been purchased by Customer will pass to Customer. The customer takes complete responsibility to properly installing and maintaining Products and other items in accordance with instructions provided by Aperia from time to time.
3.2 Limited Warranty. As to Products that are Halo® tire inflator products or that are hardware elements (such as gateways and sensors) of the Halo Connect™Tire Management Service, the Terms will include the terms and conditions set forth in the APERIA LIMITED HARDWARE WARRANTY FOR HALO® TIRE INFLATOR FOR HARDWARE ELEMENTS OF THE HALO CONNECT™TIRE MANAGEMENT SERVICE located at www.aperiatech.com/hardware_warranty, as such Limited HardwareWarranty may be amended from time to time by Aperia.
3.3 Product Changes. Aperia reserves the right, at any time, to make any changes in the design or specification of Products and other items. No such change will create any Aperia obligation to replace or make equivalent changes in Products or other items previously provided by Aperia to the Customer.
4. Certain Services Terms. As to the Halo Connect Tire Management Service, the Terms will include the terms and conditions set forth in the APERIA SERVICE TERMS FOR HALO CONNECT™ TIRE MANAGEMENT SERVICE located at www.aperiatech.com/service_terms, as such Service Terms may be amended from time to time by Aperia.
5. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS, APERIA MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW. IF, FOR ANY REASON, ANY SUCH WARRANTIES CAN NOT BE DISCLAIMED, THEY ARE LIMITED IN DURATION TO THE RELEVANT WARRANTY PERIOD AND IN SCOPE TO THE MAXIMUM EXTENT PERMITTED. ANY AND ALL WARRANTIES WILL APPLY ONLY TO THE CUSTOMER (AND NOT ANY SUCCESSOR).
6. Limitation of Liability. IN NO EVENT WILL APERIA AND ITS DISTRIBUTORS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, DAMAGE TO PROPERTY, BODILY INJURY, DEATH OR OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
7.1 Indemnification by Aperia.
7.1.1 If a third party makes a claim against Customer that permitted use under the Terms of a Product or Service infringes its Intellectual Property Rights under United States law (a “Claim”), Aperia will defend Customer against the Claim and indemnify and hold harmless Customer from anyassociated damagesand expenses awarded by the court (or other tribunal) to such third party or any payments under a settlement agreed to by Aperia, provided that Customer (i) gives Aperia prompt written notice of any such Claim, (ii) permits Aperia to control and direct the defense or settlement of any such Claim, and (iii) provides Aperia all reasonable assistance in connection with the defense or settlement of any such Claim; provided that failure to provide the notice specified in (i) above will relieve Aperia from its liability or obligation hereunder only to the extent of any material prejudice directly resulting from such failure; and provided, further, that Aperia will not agree to any settlement or compromise under (ii) above that would require Customer to make any payments, bear any obligations, or admit any liability unless Aperia obtains Customer’s prior written approval, which approval will not be unreasonably withheld. Customer may participate with Aperia in the defense of any Claims by counsel of its own choosing, at its cost and expense.
7.1.2 Should a product or Service become, or in Aperia’s opinion be likely to become, permanently enjoined by reason of a third party’s Claim, or should Aperia determine that a Product or Service likely infringes Intellectual Property Rights under United States law of a third party, Aperia will, at Aperia’s sole expense: (i) procure for Customer the right to continue to use the Product or Service as contemplated hereunder, (ii) modify the Product or Service to eliminate any infringement that might result from its use hereunder, or (iii) provide a replacement product or Service with a functionally equivalent non-infringing product or service.In lieu of the foregoing, Aperia will have the right, at its sole option, to refund a prorated portion (based on the remaining term of the Warranty Period) of the purchase price paid to Aperia (in the case of purchased Product or other item) or release Customer from further rental or services payment obligations (in the case of leased Product or Services) with respect to the infringing Product or Service, in which case Customer will cease use of such Product or Aperia will cease making such Service available.
7.1.3 Notwithstanding the foregoing, Aperia will have no obligations under this Section 7.1 to the extent any Claim is based upon or arises out of (i) any modification or alteration to the Product or Service not approved by Aperia, (ii) any combination or use of the Product or Service with products or services not supplied by Aperia or approved in writing by Aperia in advance of such combination, (iii) use of the Product or Service not in compliance with all instructions, manuals and other documentation provided by Aperia or its designee, or (iv) use of a version of the Product which has been superseded, if the infringement claim could have been avoided by using a current version of the Product that was made available to Customer.
7.1.4 This Section 7.1 provides Customer’s exclusive remedy for any infringement claims or damages.
7.2 Indemnification by Customer. Except as set forth in Section 7.1, if a third party makes a claim against Aperia arising out of or related to use of a Product or Service by Customer, Customer will defend Aperia (including its affiliates and its and their directors, officers, employees and agents) against such claim andindemnify and hold harmless Aperia (including its affiliates and its and their directors, officers, employees and agents) from anyassociated damagesand expenses awarded by the court (or other tribunal) to such third party or any payments under a settlement agreed to by Customer, provided that Aperia (i) gives Customer prompt written notice of any such claim, (ii) permits Customer to control and direct the defense or settlement of any such claim, and (iii) provides Customer all reasonable assistance in connection with the defense or settlement of any such claim; provided that failure to provide the notice specified in (i) above will relieve Customer from its liability or obligation hereunder only to the extent of any material prejudice directly resulting from such failure; and provided, further, that Customer will not agree to any settlement or compromise under (ii) above that would require Aperia to make any payments, bear any obligations, or admit any liability unless Customer obtains Aperia’s prior written approval, which approval will not be unreasonably withheld. Aperia may participate with Customer in the defense of any such claims by counsel of its own choosing, at its cost and expense.
8. Certain Intellectual Property Matters
8.1 Generated Data.
8.1.1 “Generated Data” means any data of any type provided by Customer to Aperia or generated by or captured through the use of a Product or Service, including but not limited to tire inflation and other truck, trailer or tire data.
8.2 Intellectual Property Ownership and Rights. By reason of the Terms, Customer will obtain no ownership in any Intellectual Property Rights of Aperia (including Intellectual Property Rights developed by Aperia jointly with Customer in the course of providing the Products or Services; Customer hereby assigns to Aperia all of its rights in same), nor any rights to practice or use Intellectual Property Rights of Aperia other than as expressly set forth in the Terms. If Customer provides any suggestions or other feedback to Aperia with respect to any Product, Service or any other aspect of Aperia’s business, Aperia will be free to act on such suggestions or feedback with no obligation or liability to Customer.
8.3 Confidential Information of Aperia. Customer agrees to keep confidential and use only for the purposes of use of the Products and Services in support of its internal operations all confidential information of Aperia to the extent that such information is identified by Aperia as confidential or should reasonably be understood by Customer to be confidential information of Aperia (“Confidential Information”). The Sales Quote and algorithms forming part of the Halo Connect Tire Management Service, without limitation, are deemed to be Confidential Information. Customer’s obligations under this Section 8.3 will not apply to information (i) which Customer can document was rightfully in its possession or known to it prior to its receipt of same; (ii) from and after the date it has become public knowledge through no fault of Customer; (iii) from and after the date obtained by Customer from a third party without breach of any confidentiality obligation; or (iv) from and after the date independently developed by Customer without the use of Confidential Information, as demonstrated by tangible evidence. The foregoing will not prevent disclosure to the extent required pursuant to applicable regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with reasonable advance notice to Aperia). Customer acknowledges that disclosure or use of Confidential Information in violation of this Section 8.3will cause substantial harm to Aperia for which damages alone will not be a sufficient remedy, and that Aperia will be entitled to appropriate equitable relief (without being required to post a bond or other security) in addition to whatever other remedies it might have at law.
8.4 Return of Materials. Upon reasonable request by Aperia, Customer will promptly destroy or (if specifically requested) return to Aperia all documents or materials (and all copies thereof) of any nature in Customer’s possession, custody or control that contain Confidential Information.
8.5 Definition. “Intellectual Property Rights” means any and all right, title and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
Users acknowledge and agree that the Services provided by Aperia are designed for a purpose serving a particular community and interest and that any Content submitted must conform to such purpose.
Submission of Content. Some areas of the Services may allow you and other users to post content, comments, questions, and other information (your “Content”). You acknowledge and agree that your communications with other users or members via chats, conferences, bulletin boards, blogs, posts and any other publicly accessible avenues of communication through the Services are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications. You are solely responsible for the Content that you upload, publish, display, link to or otherwise make available on or through the Services. You understand and agree that all Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated and that we will not be liable for any errors or omissions in any such Content. You further understand and agree that we cannot guarantee the identity of other users with whom you may interact in the course of using the Services or the data that any such user may provide about themselves.
We reserve the right to refuse to transmit or post, and to disclose, block or remove any Content or materials, including but not limited to, your Content, in whole or in part, that we in our discretion deem to be in violation of this Agreement, our policies and procedures, or otherwise harmful to persons using the Services. In addition, we may also take reasonable steps, including but not limited to, limiting or filtering the number of emails, chat messages or posts sent or received by a user. We are not obligated in any way to use your Content.
9.2 Your Representations and Warranties about Your Content. By posting Content on or through the Services, you represent and warrant that:
(i) None of us, our customers, licensees or business partners shall be required to make any payments with respect to your Content, including but not limited to, payments to you, third parties, music publishers, mechanical rights agents, performance rights societies, union guilds or your licensors or any persons who contributed to or appear in your Content;
(ii) You have full right, power and authority to post your Content and have secured all third-party consents, licenses and permissions necessary to post your Content and grant to us the rights and licenses described below; and
(iii) your Content (a) is not defamatory; (b) does not infringe upon, misappropriate or violate the rights of any third party, including but not limited to, any intellectual property rights, rights of publicity or any other privacy or proprietary rights; and (c) does not violate and law, rule, regulation or ordinance.
9.3 Rights in Content. By uploading, making available or submitting Content, you grant us and our business partners and affiliates a royal-free, perpetual, irrevocable, worldwide, assignable and transferrable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform and otherwise exploit your Content in any form or media now known or hereafter created, anywhere, and without any notice or compensation to you of any kind. In addition, you grant each user of the Services a non-exclusive license to use, modify, reproduce, distribute, prepare derivative works of, display and perform any Content as allowed by the functionality of the Services. You hereby grant us and other users of the Services all consents, rights and clearances to enable us to use your Content for these purposes. Without limiting the foregoing, we may:
(i) Host your Content on our servers and those of our third-party service providers that we have engaged to host the Services and display your Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the Services;
(ii) Re-encode your Content as needed to be compatible with different mobile phones which may degrade the sound quality of your music and/or video files;
(iii) Edit your Content to ensure that it complies with our policies and guidelines; and
(iv) Use any trademarks, service marks or trade names incorporated into your Content and the likeness of any individual whose performances or image is contained in your Content.
- Copyrights; DMCA Notification
We may, in our sole discretion, remove any Content that appears to infringe on the intellectual property rights of others or that is violation of this Agreement. It is our policy to respond to and investigate claims of copyright and other intellectual property infringement. We have a policy of terminating access to the Services by users who are repeat infringers.
You may notify us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). We will respond expeditiously to notices of alleged infringement sent pursuant to the DMCA.
In order to notify us of a copyright infringement claim pursuant to the DMCA, you must provide:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works;
(iii) a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material, including a URL address;
(iv) your address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.
The notice described above should be sent our designated copyright agent below. If you fail to comply with all of the requirements described above, your DMCA notice may not be valid.
Aperia Designated Agent
Aperia Technologies, Inc.
3160 Corporate Place
Hayward, CA 94545
Phone: (844) 786-4256
If you believe that any Content or material that was removed (or to which access was disabled) is not infringing, or you have the right to post and use such Content or material from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, you must send a counter notice containing the following information to our designated copyright agent listed above.
(i) a physical or electronic signature of you or the person authorized to act on behalf of the owner of the exclusive right that is alleged to have been infringed;
(ii) identification of the copyrighted work that has been removed or blocked or to which access has been disabled;
(iii) the location at which the allegedly infringing material appeared before it was removed or disabled, including a URL address;
(iv) your address, telephone number and email address;
(v) a statement by you that you have a good faith belief that the material removed or disabled was the result of a mistake or misidentification of the material; and
(vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.
If a counter-notice is received by our designated copyright agent at the address above, we may send a notice to the complaining party that the removed material will be restored or we will cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our discretion.
- Feedback Submissions and Customer Support
We welcome your feedback. However, you agree that Aperia is free to use any comments, information, ideas, concepts, reviewers, techniques, or any other material contained in any communication you may send to us, worldwide and in perpetuity without acknowledgment, compensation, or payment to you in any manner and for any purpose, including to improve the Services and create other products and services. If you need assistance or have questions, you may contact us at firstname.lastname@example.org.
12. Lease Terms
12.1 Applicability. This Section 9 will only apply to Products leased hereunder and to hardware elements provided as part of Services without passage of title to Customer (each, “Leased Hardware”).
12.2 Lease. Particular items of Leased Hardware are leased by Aperia to Customer for the relevant lease term. Customer is responsible for all costs of maintenance and repair (except as expressly provided in the Terms), installation, de-installation, and packaging and freight (for return to Aperia of Leased Hardware at the end of the relevant lease term).
12.3 Lease Term. The lease term for Product leased hereunder will be as set forth in the relevant Sales Quote. The lease term for hardware elements of Services will be the Service Term set forth in the relevant Sales Quote. Except as set forth in the relevant Sales Quote, Customer will not have the option to acquire title to the Leased Hardware.
12.4 Use. Customer will use the Leased Hardware solely in support of its operations within the United States and Canada, and will not sublease or transfer Leased Hardware. Customer will not move Leased Hardware to a different truck or trailer without notifying Aperia.
12.5 Lease Payments. Lease payments for Product leased hereunder will be as set forth in the relevant Sales Quote. Lease payments for hardware elements of Services will be part of the service fee paid by Customer for access to the Services. Lease payments are due even if Leased Hardware has been lost or damaged.
12.6 Alterations. Customer will not make any alterations, additions or improvements to the Leased Hardware.
12.7 Loss and Damage. Customer assumes and will bear the risk of loss and damage to the Leased Hardware from any and every cause whatsoever, whether or not insured. The Sales Quote may include the casualty value amount to be paid in connection with lost or damaged Leased Hardware.
12.8 Surrender. Upon expiration of the relevant lease term, Customer promptly will return to Aperia, as instructed by Aperia, the relevant Leased Hardware in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted.
12.9 No Encumbrance. Customer will not encumber or grant to any third party any lien, security interest or other interest in the Leased Hardware. Customer will not remove or obscure any marking on Leased Hardware that indicates Aperia’s ownership thereof.
13.1 Assignment. The Terms will bind and inure to the benefit of each of Customer’s and Aperia’s permitted successors and assigns. Neither party will assign theTerms (or any part thereof or rights therein) without the prior written consent of the other party, except that either party may assign the Terms in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets and/or voting securities. Any attempt to transfer or assign the Terms except as expressly authorized under this Section 10.1 will be null and void.
13.2 Severability. If any provision of the Terms is adjudged by an arbitrator or any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Terms will otherwise remain in effect.
13.3 Governing Law; Arbitration; Attorneys’ Fees. The Terms and all related actions and proceedings will be governed by and interpreted in accordance with the substantive laws of the State of California without regard to conflict of laws principles and without regard to the United Nations Convention on the International Sale of Goods. Any dispute under the Terms exclusively will be determined by binding arbitration conducted by a single arbitrator pursuant to arbitration held in the City and County of San Francisco under the auspices of JAMS. Judgment on any award in arbitration may be entered as a final judgment in any court of appropriate jurisdiction. Notwithstanding the above, Aperia or the Customer may seek preliminary equitable relief exclusively in a federal or state court of appropriate subject matter jurisdiction located in the City and County of San Francisco, California, and each party consents to the jurisdiction and proper venue thereof for such purposes.If a party institutes any action or proceeding to enforce the Terms, the prevailing party will be entitled to receive, as an additional item of damages, its attorneys’ fees, experts’ fees and other costs reasonably incurred in connection with same.
13.4 Notices. Any notice hereunder by a party will be in writing to the notice address provided by the other party or otherwise reasonably in the records of such party(with a copy sent to the email address of the other party as set forth in the Sales Quote) and will be deemed given:(i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) one (1) business day after it is sent if by next day delivery by a major commercial delivery service.
13.5 Amendments; Waivers. No supplement, modification, or amendment of the Terms will be binding unless executed in writing or electronically by a duly authorized representative of each party to the Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under the Terms, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.
13.8 Force Majeure. Aperia’s performance or delay in performance of the Terms will be excused without liability of Aperia to the extent that it is unable to perform or its performance is delayed due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action, material labor strikes or disputes, pandemic, disease, quarantine, adverse weather, civil commotion, accident, supply shortages, governmental action or any other cause which is beyond the reasonable control of Aperia(a “Force Majeure Event”). Following the occurrence of a Force Majeure Event, Aperia will promptly notify the Customer, including an estimate of its expected duration and probable impact on performance by Aperia.