APERIA TECHNOLOGIES, INC.
MASTER TERMS
These Master Terms andtherelevant 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-lineservices and/or related services (“Services”) from AperiaTechnologies, Inc. (“Aperia”), in eachcase for support of its internal operations.The Terms set forth the terms and conditions under which the relevantProducts and Services will be provided.
1. Sales Quote.The “Sales Quote” is an Aperia generated document executed by Customer and acceptedby 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 Customerare as set forth in the applicable Sales Quote.Except as set forth in the Sales Quote, Aperia will invoice Customer for amounts due.Amounts are due net 30 days from the invoice date andpayments 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 givenin 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 byCustomerunder the Terms isoverdue, Aperia may, without limiting its other rights and remedies, suspend Servicesto Customer. Aperia will not exercise its rights under this Section 2.4so long as Customer promptly notices Aperia of the disputed charges, the applicable charges are under goodfaith 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 Customerwill pass to Customer. Customer takes complete responsibility to properly install and maintain 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 INFLATORAND FOR HARDWARE ELEMENTS OF THE HALO CONNECT™TIRE MANAGEMENTSERVICE 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 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 SERVICETERMS 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 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 REMEDYPROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
7. Indemnification
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 aProduct 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 replacementProduct 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 servicespayment 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 Servicewith 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 Section7.1 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.
8.1.2 Aperia is expressly authorized to capture, record and storeGenerated Data and use same for the purposes of providing Services to Customer, for the purposes of improving the products and services that it offers from time to time, and for any other purposes on an anonymized basis in perpetuity. Notwithstanding the foregoing, Aperia will comply with the Aperia Data Privacy Policy referred to below and,without authorization from the Customer, Aperia will not disclose or use Generated Data in such a manner as to publicly reveal truck or trailer specific information, such as GPS locations, routes or load weights of trucks and trailers, in a manner that is identified or readily identifiable to Customer.Customer will limit its use of any Generated Data to which it might obtain access to the support of its internal operations.
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 documentwas 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 interest 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.
9. Lease Terms
9.1 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”).
9.2 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).
9.3 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 an option to acquire title to the Leased Hardware.
9.4 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.
9.5 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.
9.6 Alterations. Customer will not make any alterations, additions or improvement to the Leased Hardware.
9.7 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.
9.8 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.
9.9 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.
10. General
10.1 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.
10.2 Severability. If any provision of the Termsis 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 theTerms will otherwise remain in effect.
10.3 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.
10.4 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.
10.5 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 a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
10.6 Entire Agreement. The Terms, along with the Aperia Data Privacy Policy (as set forth at www.aperiatech.com/data_privacy, as amended from time to time by Aperia), represent the final and complete understanding and agreement of Aperia and Customer with respect to the relevant Products and Services, superseding all other agreements, understandings, representations and negotiations concerning such subject matter. Customer will be deemed to have agreed to the Terms when Customer acknowledges its agreement to the Sales Quote or when Customer accepts or commences use of any relevant Product or Services. Aperia may amend these Terms, prospectively, from time to time upon notice to Customer. There are no third-party beneficiaries of the Terms.
10.8 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 Customer, including an estimate of its expected duration and probable impact on performance by Aperia.
10.9 Order of Precedence. If a provision of theSales Quote conflicts with a provision in the balance of the Terms, the provision inthe Sales Quote will prevail.Otherwise the order of precedence is as follows: (i) these Master Terms, (ii) the Limited Hardware Warranty and/or the Aperia Services Terms, as applicable; and (iii) the Aperia Data Privacy Policy.
July 2020