APERIA TECHNOLOGIES, INC.MASTER SUBSCRIPTION TERMS
These Master Subscription Terms,together with therelevant terms cited herein at embedded URLs (“Terms“), permit Customer to purchase a subscription to software-as-a-service products, hardware products, and related services from Aperiafor its internal business purposes pursuant to asales quoteto which these Terms are attached as executed by Customer and accepted by Aperia (“Sales Quote(s)“) and set forth the basic terms and conditions under which those products and services will be delivered.
1. Service. A complete description of the Services and Support Customer is purchasing hereunder can be found in the Aperia Subscription Service Terms (ASST) located at https://www.aperiatech.com/service_terms.
2.1 Invoices 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 through the end of that calendar quarter; 2) thereafter quarterly in advance until the end of the calendar monthfollowing 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 givenin the event of early termination by Customer or termination by Aperia for any reason.
2.2 Delivery of Product. 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 https://www.aperiatech.com/hardware_warranty.
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 byCustomerunder 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 dispute.
2.7 Pilot Products. Products shipped to Customer as part of a pilot program, as indicated on the Sales Quote, must be returned to Aperia within sixty (60) days of the end of the pilot program (which will run for 90 days from the delivery date, unless otherwise stated on the Sales Quote or extended by approval of Aperia’s Vice President of Sales) or Customer will immediately pay to Seller the full list price for such Products.
2.8 Product Changes and Returns. Aperia reserves the right, at any time, to make any changes in the design or specification of any of its Products (“New Product“). No such change shall create any obligation on Aperia to make equivalent changes in Products previously manufactured by Aperia (including Products sold to Customer). However, if Aperia so requests, Customer shall return Products to Aperia for replacement with New Product with updated designs or specifications (but subject to the original warranty term as provided below) at Aperia’s expense.All Products returned to Aperia, for any reason other than the Limited Warranty below, must be in saleable condition and in its original packaging to qualify for replacement, repair, and/or refund under this Agreement.
3. Term and Termination of Subscription
3.1 Subscription Term. Each 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 for additional or upgraded Product will be added to and made coterminous with the then-current Subscription Term.
3.2 Termination 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 such breach
3.3 Termination for Convenience. 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 Termination. Within ninety (90) days of the actual terminationof 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.
3.5 Not Exclusive Remedy. 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.
3.6 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.
4. Representations and Warranties. In addition to the warranty set forth in Aperia’s Limited Warranty Statement, Aperia represents and warrants as follows:
4.1 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.
4.2 Service Performance Warranty. 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.
4.3 Compliance with Laws. 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.
4.4 Warranty Disclaimer. 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.
5. Limitation of Liability
5.1 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 OR 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, LOSSES 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 5 WILL NOT APPLY TO ANY CLAIM UNDER SECTION 6 (INDEMNIFICATION) OR SECTION 7 (CONFIDENTIAL INFORMATION).
5.3 The parties agree that the limitations specified in this Section 5 will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
6.1 GeneralIndemnity. 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 party’s negligence.
6.2 Indemnification by Customer. In addition to the obligations of Section 6.1, 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 6.1, 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 will defend 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.
6.4 Process and Remedies. 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 Customer.
6.5 Exceptions. Notwithstanding the foregoing, Aperia shall have no obligations under this Section 6 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 damages.
7. Confidential Information
7.1 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. TheseTerms, 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 Materials. Upon termination of a Subscriptionfor 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 authority.
“Product” meansany 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 https://www.aperiatech.com/subscription_terms).
“Training” means the training services provided by Aperia as set forth in the applicable Sales Quote, if any.
“User“means 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.
9.1 Assignment. 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 9.1 will be null and void.
9.2 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.
9.8 Force Majeure. Either 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.