complete description of the Services and Support Customer is purchasing
hereunder can be found in the Aperia Subscription Service Terms (ASST) located
and Payment Terms. Fees are as set forth on the
applicable Sales Quote, subject
to credit approval, Customer’s agreement to pay for any ongoing Subscription
services via a Seller-approved automatic payment program, and annual adjustment
in accordance with the then-current Consumer Price Index (CPI).
Aperia will invoice Customer for
subscription services as follows: 1) initially commencing the first of the
calendar month after [the earlier of (i) installation or (ii) 60 days after
delivery] and through the end of that calendar quarter. ; 2) thereafter quarterly in advance; until
3) the end of the calendar month following the termination of the Subscription
Term Invoices are due net 30 days from the
invoice date. Incremental subscriptions will be added as set forth in Section 3.1.
No discounts shall be taken except as specifically allowed by these Terms.
Payments shall be made without abatement, deduction, or setoff. No refunds of
any deposits or prepaid fees will be given in the event of early termination by
Customer or termination by Aperia for any reason.
If Customer purchases Product hereunder, all shipping and delivery dates are
estimated and are based upon prompt receipt of all necessary information.
Delays in securing Customer’s approval of necessary specifications may extend
the date of delivery. Aperia shall not be liable for any claim, loss, expense,
or damage of any kind whatsoever for delays in delivery. Product(s) shall be
shipped Ex Works (Incoterms 2000) Aperia’s facility or Aperia-designated logistics
partner (as applicable) in California, whereupon title to Products shall pass
to Customer. Product purchases are subject to the terms and conditions of
Aperia Limited Hardware Warranty (ALHW) located at
2.3 Taxes. Prices do
not include any sales, use, excise, privilege, or other taxes or assessments
now or hereafter imposed or levied by or under the authority of any federal,
state, or local law, rule, or regulation concerning Products sold hereunder or
sale thereof, all of which are the responsibility of Customer, except for
Aperia’s franchise taxes, employment taxes, or taxes based on Aperia’s income
(“Taxes”). If Aperia pays any such Taxes, Customer shall, upon demand,
reimburse Aperia for such amounts.
2.4 Overdue Charges. If any charges are not received from
Customer by the due date, then at Aperia’s discretion, (a) such charges may
accrue late interest 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, and/or (b) Aperia may condition future
subscription renewals and Sales Quotes on payment terms shorter than those
specified in Section 2.1 (Invoicing). If
Aperia is required to institute any type of action or proceeding to recover any
obligations due to Aperia from Customer. Aperia shall be entitled to receive,
as an additional item of damages, reasonable collection and/or attorney fees
incurred by Aperia in pursuit of Customer.
2.5 Suspension of Service and Acceleration. If any amount owed by Customer under these
Terms is thirty (30) or more days overdue, Aperia may, without limiting its
other rights and remedies, accelerate Customer’s unpaid fee obligations so that
all such obligations become immediately due and payable, and suspend Service to
Customer until such amounts are paid in full.
2.6 Payment Disputes. Aperia
shall not exercise its rights under Section 2.4 (Overdue Charges) or 2.5
(Suspension of Service and Acceleration) if the applicable charges are under
good-faith dispute and Customer is cooperating diligently to resolve the
and Termination of Subscription
Subscription commences on the start date specified in the applicable Sales
Quote and continues for a period of one (1) year (“Subscription Term”) and
(unless otherwise specified in the Sales Quote) shall automatically renew
thereafter, at Aperia’s then-current rates (see Section 2.1), for
additional 1-year terms. Incremental orders will be added to and made
coterminous with the then-current Subscription Term.
for Cause. Either
party may terminate a Subscription if the other party fails to cure any
material breach of these Terms within thirty (30) days after written notice of
Customer may terminate this Agreement at the end of any Subscription Term by
giving at least ninety (90) days’ written notice prior to the end of such term.
Aperia shall not be required to refund any fees previously paid by Customer.
3.4 Effect of
Within ninety (90) days of the actual termination of the Subscription Term,
Customer will return all subscription hardware (hardware not purchased) to
Aperia, at its own expense. If Aperia has not received all such hardware by the
end of such 90-day period, Aperia will invoice, and Customer shall pay, the
full retail value of such hardware in addition to the full Subscription fee
that would have been payable during that period. Thereafter, until such time as
Aperia receives the subscription hardware or payment, Aperia will continue to
invoice, and Customer will continue to pay, Subscription fees. Customer shall
be responsible for any other unpaid fees due Aperia prior to the date of the
Termination is not an exclusive remedy and the exercise by either party of any
remedy under these Terms will be without prejudice to any other remedies it may
have under these Terms, by law, or otherwise.
Survival. All Terms, including Exhibits,
addenda and amendments hereto, which by their nature are intended to survive
any termination or expiration of any Subscription, shall so survive.
and Warranties. In addition to the warranty set forth
in Aperia’s Limited Warranty Statement, Aperia represents and warrants as
General Warranties. Aperia has with respect to
each Sales Quote (i) all requisite legal and corporate power to execute and
deliver such agreements; (ii) taken all corporate action necessary for the
authorization, execution and delivery of such agreements; (iii) no agreement or
understanding with any third party that interferes with or will interfere with
its performance of its obligations under such agreements; (iv) obtained and
will maintain all rights, approvals and consents necessary to perform its
obligations and grant all rights and licenses granted to Customer under such
agreements; and (v) taken all action required to make such agreements legal,
valid and binding obligations of Aperia.
The Service will be in Compliance. During any
Subscription Term, Aperia will provide services to Customer at no additional
charge in support of such Compliance.
Aperia’s business and performance under these Terms is and will be in compliance with all applicable federal, state and
local laws and government rules and regulations.
EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN APERIA’S LIMITED
WARRANTY STATEMENT (ALHW) LOCATED AT https://www.aperiatech.com/hardware_warranty),
THE SUBSCRIPTION IS PROVIDED “AS IS,” WITH NO OTHER WARRANTIES OF ANY KIND. APERIA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW. WITHOUT LIMITING THE FOREGOING, APERIA DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE
CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT APERIA’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS, OR THAT APERIA’S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF, OR
IMPROPER ACCESS TO, INFORMATION OR CONTENT BY THIRD PARTIES, OR THAT CUSTOMER
WILL ACHIEVE ANY PARTICULAR RESULTS FROM USING THE SERVICE.
In no event will
either party be liable to the other or any third party, whether in tort,
contract, or otherwise, for (A) any acts or omissions in connection with or
related to THESE TERMS or the PRODUCTS SOR services unless such act or omission
constitutes gross negligence, willful misconduct or bad faith or (B) any bodily
injury, death, or property damage resulting from or in any way arising out of
any Products OR SERVICES or (C) any indirect, incidental, consequential, or
special damages, losses, or expenses including without limitation lost revenues
and profits, INCLUDING THOSE ATTRIBUTABLE TO TIRE FAILURE, ISSUES INTRODUCED BY
INCORRECT CUSTOMER INSTALLATION OF PRODUCT, OR DOWNTIME (EXCEPT AS EXPRESSLY
SET FORTH HEREIN), even if the affected party has been advised of the
possibility of such damages. The maximum liability, if any, of each party with
respect to Products and SUBSCRIPTIONS shall not exceed the price paid by
CUSTOMER for Products and/or Subscriptions hereunder IN THE
TWELVE (12) MONTHS PRECEDING A CLAIM FOR DAMAGES.
5.2 THE PROVISIONS OF THIS SECTION 9 WILL NOT APPLY TO ANY CLAIM
UNDER SECTION 11 (INDEMNIFICATION), SECTION 12 (CONFIDENTIAL INFORMATION) OR
SECTION 13.2 (DATA PROTECTION).
5.3 The parties agree that the limitations
specified in this Section 9
will survive and apply even if any limited remedy specified in these Terms is
found to have failed of its essential purpose.
Indemnity. Each party shall indemnify and hold
harmless the other party, its Affiliates, or their respective Contractors,
officers, directors, or employees (each an “Indemnitee”) from and
against any and all damage, loss, or liability (including without limitation
reasonable attorneys’ fees and costs) arising out of or relating to the other
In addition to the obligations of
Section 11.1, Customer shall indemnify and hold harmless Aperia and its
Indemnitees from and against any and all damage, loss or liability (including
without limitation reasonable attorneys’ fees and costs) arising out of or
relating to Customer’s modification of, tampering with, or damage to any
Subscription and/or Product or Customer’s storage, installation, use,
maintenance, or other treatment of Products not in compliance with the
instructions, manuals, and other documentation provided by Aperia.
6.3 Indemnification by Aperia. In addition to the obligations of
Section 11.1, if a third party makes a claim against Customer or a
Customer’s Indemnitee that the Service or a Product (collectively, “Software”) infringes its intellectual
property rights (a “Claim”), Aperia
Customer’s Indemnitee against the Claim and indemnify and hold harmless
Customer’s Indemnitee from the damages, liabilities, costs and expenses awarded
by the court to such third party or the settlement agreed to by Aperia, provided
that Customer’s Indemnitee (a) gives Aperia prompt written notice of any such
Claim, (b) permits Aperia to control and direct the defense or settlement of
any such Claim, and (c) provides Aperia all reasonable assistance (at the
expense of Aperia) in connection with the defense or settlement of any such
Claim; provided that failure to provide the notice specified in (a) 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 (b) above
that would require Customer’s Indemnitee to make any payments, bear any
obligations, or admit any liability unless Aperia obtains Customer’s
Indemnitee’s prior written approval.
A Customer’s Indemnitee may participate in the defense of any Claims by counsel
of its own choosing, at its cost and expense. Should the Software become, or in
Customer’s opinion be likely to become, the subject of a Claim, Aperia will, at
Aperia’s sole expense: (i) procure for Customer the right to continue to use
the Software as contemplated hereunder, (ii) modify the Software to eliminate
any Claim which might result from its use hereunder, provided that the
Software’s performance must remain at least as good as provided in the
Documentation and subject to Customer’s approval, or (iii) replace the Software
with equally suitable, compatible and functionally equivalent non-infringing
software services subject to Customer’s approval, at no additional charge to
6.5 Exceptions. Notwithstanding the foregoing, Aperia
shall have no obligations under this Section 11
to the extent any infringement claim is based upon or arising out of (i) any
modification or alteration to the Service by any party not approved by Aperia,
(ii) any combination or use of the Service or Product with products or services
not supplied by Aperia or approved in writing by Aperia in advance of such
combination, (iii) use of the Service or Product not in accordance with the
applicable Documentation or outside the scope of any license granted hereunder,
(iv) use of a version of the Service or Product which has been superseded, if
the infringement claim could have been avoided by using a current version of
the Service or Product that was provided to Customer’s Indemnitee, (v) a patent
that Customer’s Indemnitee was made aware of (pursuant to a claim, demand or
notice) prior to the Effective Date, (vi) Customer’s Indemnitee’s actions prior
to the Effective Date, or (vii) components of the Service or Product that are
developed in accordance with Customer’s specifications. This Section provides
Customer’s Indemnitee’s exclusive remedy for any infringement claims or
Feedback. If Customer provides any
suggestions or other feedback to Aperia with respect to the Service and/or
Product or any other aspect of Aperia’s business, Aperia will be free to act on
such feedback with no obligation to Customer.
7.2 Confidential Information. Each party (“Receiving Party”) agrees that all code, inventions, know-how,
business, technical and financial information it obtains from the disclosing
party (“Disclosing Party”)
constitute the confidential property of the Disclosing Party (“Confidential Information”), provided
that it is identified as confidential at the time of disclosure or can be
reasonably understood to be confidential due to the nature of the information.
These Terms, Customer Data, and any not previously publicly disclosed
information about Customer’s business, finances, information systems, software
or technology provided by Customer to Aperia hereunder will be deemed
Confidential Information of Customer without any marking or further
designation. These Terms, any and all intellectual property and other
proprietary rights in the Service and Products will be deemed Confidential
Information of Aperia without any marking or further designation. Except as
expressly authorized herein, the Receiving Party will hold in confidence and
not use or disclose any Confidential Information. The Receiving Party’s
nondisclosure obligation will not apply to information which the Receiving
Party can document: (i) was rightfully in its possession or known to it prior
to receipt of the Confidential Information; (ii) is or has become public
knowledge through no fault of the Receiving Party; (iii) is rightfully obtained
by the Receiving Party from a third party without breach of any confidentiality
obligation; (iv) is independently developed by the Receiving Party without the
use of the Disclosing Party’s Confidential Information, as demonstrated by
tangible evidence; or (v) is required to be disclosed pursuant to a regulation,
law or court order (but only to the minimum extent required to comply with such
regulation or order and with advance notice to the Disclosing Party). The
Receiving Party acknowledges that disclosure of Confidential Information may
cause substantial harm for which damages alone may not be a sufficient remedy,
and therefore that upon any such disclosure by the Receiving Party, the
Disclosing Party will be entitled to seek appropriate equitable relief in
addition to whatever other remedies it might have at law.
7.3 Return of
Upon termination of a Subscription for any reason, or upon earlier request by
Disclosing Party, Receiving Party will promptly destroy or (if specifically
requested) return to Disclosing Party all related documents or materials of any
nature in Receiving Party’s possession, custody or control (regardless of the
media in which such documents or materials are stored) that have been furnished
by Disclosing Party to Receiving Party.
“Affiliate” means an entity that, directly or
indirectly, owns or controls, is owned or is controlled by or is under common
ownership or control with Customer. As used herein, “control” means the power
to direct the management or affairs of an entity, and “ownership” means the
beneficial ownership of 50% or more of the voting equity securities or other
equivalent voting interests of the entity.
“Customer Data” means any data of any
type provided by Customer or a User to Aperia during the normal course of
business, including but not limited to tire inflation data generated by tractors
and trailers in Customer’s fleet, and data based on or derived from the
foregoing and provided to Customer as part of the Service.
“Compliance” means that the Service is performing in substantial
conformance with the Documentation and any acceptance criteria specified in the
applicable Sales Quote.
“Content” means data, including audio,
video, multimedia, data, text, images, and documents provided by Aperia to
Customer or accessed or collected by Customer in connection with Customer use
of Aperia’s Service, including without limitation all data, information or
other materials that Aperia obtains from third parties and provides or
otherwise makes available to Customer hereunder.
“Contractor” means any third party employed or retained by
Customer to perform services on behalf of Customer.
“Documentation” means the
specifications, design documents and analyses, programming tools, plans,
models, flow charts, reports and drawings, documentation and any other
descriptions related to the Service provided by Aperia to Customer or to any
other users of the Service from time to time, which in any event are sufficient
to explain the intended functionality of the Service and to assist in the use
of the Service.
“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
Policy” or “ADDP”
policy posted by Aperia at https://www.aperiatech.com/data_privacy covering collection and use of Customer Data and
other information as part of the Service.
“Product” means any hardware products set forth on the Sales Quote.
“Service” means the online
software-as-a-service product(s) described in the Sales Quote, including any
associated offline components and all related Documentation.
“Subscription” means a subscription to
the Service and Support.
“Subscription Term” means the term of a
Subscription as set forth in the applicable Sales Quote.
“Support” means the technical support
services provided by Aperia as further described in the Aperia Subscription
Service Terms (ASST) located at
“Training” means the training services
provided by Aperia as set forth in the applicable Sales Quote, if any.
an individual who is authorized by Customer to use the Service. Users may
include but are not limited to Customer employees, consultants, Contractors and
agents, and specific individuals authorized by Customer.
This Agreement will bind and inure to the benefit of each party’s permitted
successors and assigns. Neither party will assign this Agreement (or any part
thereof) without the prior written consent of the other party, except that
either party may assign this Agreement 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 this
Agreement except as expressly authorized under this Section 16.1 will
be null and void.
Severability. If any provision of this Agreement
will be adjudged by any court of competent jurisdiction to be unenforceable or
invalid, that provision will be limited to the minimum extent necessary so that
this Agreement will otherwise remain in effect.
9.3 Governing Law; Jurisdiction and Venue;
Attorneys’ Fees. This Agreement and all related
actions and proceedings will be governed by the laws of the State of California
without regard to conflict of laws provisions thereof, and without regard to the United
Nations Convention on the International Sale of Goods.
9.4 Notices. Any notice hereunder will be in
writing to the notice address set forth above 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) day after it is sent if by next day delivery by a
major commercial delivery service.
9.5 Amendments; Waivers. No supplement, modification, or
amendment of this Agreement will be binding unless executed in writing by a duly
authorized representative of each party to this Agreement. No waiver will be
implied from conduct or failure to enforce or exercise rights under this
Agreement, 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.
9.6 Entire Agreement. This Agreement, together with cited
URLs and including any Sales Quote, represents the final and complete
understanding of Aperia and the Customer with respect to the Subscription and Products purchased under this
Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the Subscription and Products and supersedes all other terms or
agreements, oral or written. Preprinted terms on or attached to any order
issued to Aperia and all other separate terms and/or documents introduced after
the effective date of this Agreement shall be null and void and of no effect.
Customer agrees to the terms of this Agreement when Customer acknowledges its
agreement to the Sales Quote or when Customer accepts any portion of the
Service and/or Products.
9.7 Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint
venture, employment, franchise or agency created hereby between the parties.
Neither Aperia nor any of its employees or subcontractors will be eligible for
any benefits normally provided by Customer to its employees. Neither party will
have the power to bind the other or incur obligations on the other party’s
behalf without the other party’s prior written consent.
party’s performance of any part of this Agreement will be excused to the extent
that it is unable to perform due to natural disasters, terrorism, riots,
insurrection, war, extraordinary governmental action, material labor strikes
(excluding strikes by the party’s own workforce), or any other cause which is
beyond the reasonable control of such party (“Affected Party”), not avoidable by reasonable due diligence, and
provided that such cause is not attributable to the Affected Party (a “Force Majeure Event”). Upon the
occurrence of a Force Majeure Event, the Affected Party will promptly notify
the other party of the Force Majeure Event, including an estimate of its
expected duration and probable impact on the performance of the Affected
Party’s obligations under this Agreement. In addition, the Affected Party will
(i) exercise commercially reasonable efforts to mitigate damages to the other
party and to overcome the Force Majeure Event and (ii) continue to perform its
obligations under this Agreement to the extent it is able. If any failure or
delay caused by a Force Majeure Event continues for ten (10) days or longer,
the party unaffected by such event will have the right to terminate this
Agreement without cost or liability upon notice to the Affected Party and to
receive a refund of all pre-paid fees for any performance not yet delivered.
9.9 Order of
Precedence. If a
term in a Sales Quote conflicts with a term in these Terms, the provisions of these
Terms will prevail unless the Sales Quote specifically references these Terms
and states that the term in the Sales Quote will prevail. The order of
precedence among the Terms are: (a) these Terms; (b) the Aperia Subscription
Service Terms (ASST); (c) Aperia Limited Hardware Warranty (ALHW); and (d) Aperia Data