APERIA SERVICE TERMS FOR HALO CONNECT™
TIRE MANAGEMENT SERVICE
1. Coverage. These Service Terms are in addition to the Master Terms set forth at www.aperiatech.com/master_terms (the “Master Terms”). Capitalized terms not defined herein will have the meanings set forth in the Master Terms. Aperia Technologies, Inc. (“Aperia”) provides these Service Terms solely to the original subscriber (“Customer”) to Aperia’s Halo Connect Tire Management Service (the “Service”) pursuant to a particular Sales Quote. The Service includes the following components (i) the cloud-based, Customer accessible capabilities of the Service described at www.aperiatech.com/connect_specs(the “Platform”) which Customer will access electronically through dashboards and the like; (ii) the hardware components of the Service comprised of gateways and sensors to be installed on Customer’s trucks and/or trailers to facilitate gathering and transmission of Generated Data (the “Halo Connect Hardware”); and (iii) “client” software licensed to Customer (the “Client Software”) that Customer will use to register its use of the Service and to upload and access certain information.
2. Provision of the Service, the Service Term and Service Fees. During the Service Term, Aperia will make the Service available to Customer, subject to the terms and conditions set forth herein. The Service Term will be as set forth in the Sales Quote, except as earlier terminated by Aperia for breach by Customer of terms applicable to the Service. For access to and use of the Service, Customer will pay to Aperia the Service Fees set forth in the relevant Sales Quote.
3. The Platform. During the Service Term, Customer will have the right to use, through its own employees and subcontractors, the Platform solely in support of its operation of its owned and leased trucks and trailers.
4. The Halo Connect Hardware. In addition to the relevant provisions of the Master Terms and the Limited Hardware Warranty referenced in the Master Terms, the Halo Connect Hardware is provided on a rental basis during the Service Term or on a purchase basis, as provided in the relevant Sales Quote.
5. The Client Software. During the Service Term, Customer is hereby granted a non-exclusive license to download, as instructed by Aperia, and use the Client Software solely for purposes of Customer’s permitted use of the Platform.
6. Use of the Service.
6.1 To gain access to and use the Platform, Customer and its authorized users are required to create login IDs and passwords (“Login Information”). Customer is responsible for all activity occurring under users’ Login Information and must keep all Login Information confidential and not share Login Information with third parties. Aperia has no obligation or responsibility with regard to use, distribution, disclosure, or management of Login Information
6.2 Customer will (i) be responsible for its users’ compliance with all terms applicable to use of the Service, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Aperia promptly of any such unauthorized access or use, (iii) use the Service only in accordance with instructions received from time to time from Aperia and applicable laws and government regulations, and (iv) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.Although Aperia has no obligation to monitor Customer’s use of the Platform, Aperia may do so and may prohibit any use of the Platform it believes may be (or is alleged to be) in violation of the foregoing.
6.3 Customer will not upload, record, publish, post, link to, or otherwise transmit or distribute in connection with its use of the Service (i) any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate the Platform or any system, data, information, or property of another; or (ii) in violation of any law, statute, ordinance, or regulation. Customer represents that Aperia may capture and use the Generated Data without any third party consents and without violation of any applicable laws.
6.4 Customer will not: (i) decompile, disassemble, or otherwise reverse engineer the Service or any component thereof or attempt to obtain or perceive source code from the Service (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) sell, rent, lease, or use the Service (or any portion thereof) for time sharing purposes or in support of trucks or trailers not owned or leased by Customer; (iii) remove any copyright or proprietary notices contained in the Service; (iv) access or use the Service to develop competitive functionality or copy any ideas, features, functions or graphics of the Service; (v) interfere with or disrupt the integrity or performance of Aperia’s computers and services; (vi) attempt to gain unauthorized access to Aperia’s computers or services; or (vii) use any high-volume, automated or electronic means to access the Service (including without limitation, robots, spiders, or scripts).
6.5 Aperia may deny use of the Platform, including by the use of disabling devices, without incurring any obligation or liability (i) if Customer’s right to use the Platform has ceased, (ii) to prevent unauthorized use of the Platform or (iii) to prevent damage to its computers and systems
7. Support and Availability.
7.1 During the Service Term, Aperia will provide Customer with support for the Service, consisting of email assistance at support@Aperia.com and telephone assistance at 1-844-RUN-HALO for technical assistance associated with use of the Service and for reporting of Service issues. Aperia personnel will be available to receive such emails from 8 am – 8 pm Eastern Time, Monday through Friday, excluding Aperia holidays, which parameters may be updated from time to time by Aperia
7.2 Aperia from time to time in its discretion may modify or update the Platform or the Client Software, which modifications and updates will not materially decrease the functionality of the Service.
7.3 Aperia will make commercially reasonable efforts to provide monthly Platform Availability of 99.0% (“Service Availability Objective”). “Platform Availability” is defined as the percentage of time during the month that the Platform is capable of receiving, processing, and responding to requests, excluding, from the numerator and denominator of the calculation (i) Scheduled Support, (ii) unavailability due to Force Majeure Events, and (iii) unavailability resulting from actions by Customer or its users.
7.4 At the request of Customer, Aperia will calculate specific Platform Availability during a given calendar month. In the event the Platform Availability Objective was not met in a given month, then for each day in such month that the duration of the Service unavailability exceeds four (4) continuous hours, Customer will receive a one (1) day free extension to the end of the Service Term, including any renewal periods, or, at Aperia’s sole discretion, an equivalent billing credit (each, a “Service Credit”). For purposes of calculating the Service Availability Objective, Aperia will only consider the Platform unavailable if Customer opened a trouble ticket relating to the Platform unavailability with the Aperia customer support department on the first day of such unavailability. To obtain a Service Credit for Aperia’s failure to meet the Service Availability Objective, Customer must request, at suuport@aperiatech.com such credit in writing no later than the calendar month following the month of the Platform unavailability giving rise to such request. Notwithstanding the foregoing, if the Service was purchased on a monthly (no term commitment) or pay-per use basis, there will be no Service Credits given. Service Credits will be the sole and exclusive remedy for any failure to meet the Service Availability Objective.
7.5 “Scheduled Support” is defined as any maintenance performed during Aperia’s standard maintenance windows (weekends between Saturday 12:01am Pacific Time and Sunday at 11:59pm Pacific Time, and on weekdays between 6:00pm Pacific Time and 11:59pm Pacific Time) and any other maintenance of which Aperia gives at least forty-eight (48) hours advance notice. Aperia may perform maintenance on the Platform in order to upgrade hardware or software that operates or supports the Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the Service. Wherever possible, Scheduled Support will account for no more than four (4) hours of downtime per month, nor more than two (2) hours of downtime per occurrence.
8. Security Breach. Aperia will notify Customer following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of the Platform. Written notification provided pursuant to this Section will include a brief summary of the available facts and the status of Aperia’s investigation. If required by applicable law, Aperia will notify persons affected by the security breach.Otherwise, Aperia agrees that it will not communicate with any third party, including, but not limited to the media, regarding any security breach without the express written consent of Customer.
9. Disclaimer. APERIA MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PLATFORM OR CLIENT SOFTWARE, 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.
10. Limit of Liability. THE TOTAL AGGREGATE LIABILITY OF APERIA AND ITS DISTRIBUTORS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, RELATING TO THE PLATFORM AND THE CLIENT SOFTWARE WITH RESPECT TO CLAIMS FIRST ARISING IN A PARTICULAR CALENDAR YEAR WILL BE LIMITED, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TO FIFTY PERCENT (50%) OF THE AMOUNT ACTUALLY PAID BY CUSTOMER AS SERVICE FEES (EXPRESSLY EXCLUDING ANY SEPARATELY STATED CHARGES FOR DATA TRANSMISSION AND DATA STORAGE)FOR SUCH CALENDAR YEAR WITH RESPECT TO SAME. IN NO EVENT WILL ANY OF THE FOREGOING 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.
11. Miscellaneous. These Service Terms will be governed by and interpreted in accordance with the substantive laws of the State of California, without regard to conflicts of laws principles and without regard to the United Nations Convention on the International Sale of Goods. These Service Terms constitute the entire agreement of Aperia and Customer with respect to the subject matter hereof, superseding all other agreements, understandings, representations and negotiations concerning such subject matter. These Service Terms may not be modified except in writing and signed by Aperia’s Chief Executive Officer or Vice President of Finance.
July 2020