WHEREAS, Company is the designer, developer, manufacturer and supplier of certain Hardware, hardware applications ("Firmware"), web-based software applications ("Licensed Software") and data communication services ("Data Services"), altogether comprising a system (“Solution”) which is designed and intended to enable real-time monitoring and tracking information relative to Customer's assets.
The Customer, in the course of its business, wishes to utilize the Solution. Wherever the context so permits, "Customer", shall include the Customers employees, agents and contractors, successors, and permitted assignees.
The Company has agreed to sell certain hardware and software to CUSTOMER and to license CUSTOMER to use such software and to provide such other services as further described herein.
NOW, THEREFORE in consideration of the premises and the covenants and agreements contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) Company and Customer agree as follows:
The terms and conditions herein are intended to govern the use of the Solution supplied by Cooltrax to the Customer, including but not limited to related user manuals and documentation which Cooltrax may provide to the Customer from time to time.
- Definitions: Capitalized terms referred to in this Agreement and not defined herein shall have the meaning set forth in the Definition Appendix attached hereto as Appendix 1.
- Solution Grant. Subject to the terms and conditions of this Agreement, and payment of all applicable fees, Company grants to Customer a revocable, non-exclusive, and non-transferable license to use the Solution during the Initial Term and any continuation of the term as provided in article 6.1. Customer shall not rent, lease, sell, sublicense, assign or otherwise transfer the Solution to any third party. Customer shall not and shall not allow any third party to dismantle or disassemble the Hardware or to reverse engineer, or attempt to reconstruct, identify or discover any source code of the Licensed Software or create enhancements or derivative works relating to any Hardware or Licensed Software.
- Payment Terms. The payment terms shall be defined on the applicable Sales Order. If no such terms are defined, payment for all purchases hereunder shall be net thirty (30) days from the date of invoice and shall be in US Dollars. Company reserves the right to withhold or withdraw access to the Hardware or the Solution should the Customer fail to comply with the payment terms
- Ancillary Hardware. The Company may, at its option, provide to Customer, at Customers request, certain ancillary hardware, as is more specifically set forth in the Sales Order. The Customer agrees that such ancillary hardware is being provided in an as-is condition, with no warranties or representations of any kind.
- The Company warrants that, provided the Hardware is used by the Customer in the manner specified by the Company and is not damaged by any act or omission or tampered with in any way (including the opening of the IP-rated enclosure), the Hardware shall operate free of defects for a period of twelve (12) months from the date of invoice related to the Hardware (“Hardware Warranty”).
- The Customer shall install the Hardware in accordance with the Company’s installation directions (“Installation Manual”) which the Company shall provide to the Customer. Failure to install in accordance with the Installation Manual will void the Hardware Warranty.
- If within the Hardware Warranty period the Customer notifies the Company of an alleged defect in the Hardware, the Customer shall return the Hardware to the Company or its nominee, at Customer’s cost, to allow Company to assess the defect. If the Hardware is determined to be defective and the defect is not the result of Customer’s misuse or failure to comply with 5) 2. above, the Company will repair or replace, at its cost, the defective Hardware.
- This Hardware Warranty is limited to Hardware supplied by the Company and excludes any and all components supplied by the Customer or any third party whether or not it is integral to the operation of the Solution.
- Except for the obligation of the Company to repair or replace Hardware under the Hardware Warranty, the Company shall have no liability with respect to any defective or inoperable Hardware and shall not be liable for any loss or damage of any nature resulting from said defective or inoperable Hardware.
- WARRANTY EXCLUSION. EXCEPT AS PROVIDED IN THIS ARTICLE 5, NO OTHER WARRANTIES SHALL APPLY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Supply and Use of Licensed Software and Services
- The Company shall make the Licensed Software available to the Customer, and support the Solution as provided in Appendix 2, from the time the Company issues user credentials to the Customer for the Initial Term. Upon expiration of the Initial Term, the Agreement shall continue until terminated by either party providing ninety (90) days written notice.
- The Customer agrees to pay the Company the fees for the availability of the Licensed Software as invoiced at the beginning of each month, commencing from the month the Licensed Software is first in use. Such fees are charged one (1) month in advance.
- The Licensed Software, which is hosted and accessed via the Web Application, provides a variety of services, including tracking and monitoring information, maps, graphs and reports which may be downloaded. The Web Application and Licensed Software is the copyright property of the Company.
- Access to the Licensed Software made available on the Web Application is subject to the terms and conditions herein. First use of the Web Application requires acceptance of these terms and conditions. All Licensed Software, including any updates, enhancements, new features and any new resources are also subject to these terms and conditions.
- Use of the Web Application is restricted to users with a secure username and password. Cooltrax will issue user credentials to Company's nominated representative within ten (10) business days of receiving a Sales Order that includes such nomination. Upon receiving user credentials, the Customer will be responsible for maintaining the Company's user credentials via the Web Application tool, ("User Administration"), and for maintaining the confidentiality of all associated usernames and passwords. The Customer is responsible for all activities that occur under its designated usernames and passwords.
- The Company may, from time to time, undertake a Deployment to make changes or enhancements to the Web Application or Licensed Software. The Company may make all or part of the Web Application unavailable without the Customer’s consent so as to enable a Deployment to be made. If a Deployment is expected to result in significant downtime, then prior to the Deployment, the Company shall use commercially reasonable efforts to give the Customer at least forty-eight (48) hours’ notice prior to the scheduled downtime. The Company will, where possible, schedule Deployments outside the hours of 08:00 to 17:00 Monday to Friday EST, so as to minimize impact to the Customer. The Company does not accept any responsibility for the accuracy or reliability of the data or contents derived from any interfaces to other sites maintained by Third Parties.
- Indemnity. Company shall, at its own expense, defend, indemnify and hold Customer, its directors, officers, employees, and agents (each being an “Indemnified Entity”) harmless from and against any and all claims, actions, causes of action, liabilities, fines, proceedings, losses, demands, lawsuits, costs and expenses (including reasonable attorneys’ fees), incurred or suffered by any Indemnified Entity by reason of, related to, or arising out of (i) the infringement of the Licensed Software on any valid United States patent, trademark or copyright, or (ii) the misappropriation of a trade secret. Company shall pay all such damages, expenses or costs as are finally awarded against any Indemnified Entity or agreed to in settlement for such third-party claims, provided that Customer gives Company: (a) prompt written notice of any such claim or threatened claim; (b) sole control of the defense, negotiations and settlement of such claim; and (c) reasonable cooperation in any defense or settlement of the claim (at Company’s cost). Company hereby expressly and specifically agrees that its obligations to indemnify, defend, and hold each Indemnified Entity harmless as provided in this Agreement shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from claims by its own employees or from limitations of liability under worker’s compensation laws.
- Limitation of Liability. Except for (i) a party’s breach of its obligations under Section 9 (Confidentiality); (ii) a breach by either party of the intellectual property rights of the other party; or (iii) a breach by Customer of Section 2 (Solution Grant) above, in no event shall either party be liable for any indirect, special, incidental, consequential or punitive loss or damage including but, not limited to loss of profits, loss of business, loss of or damage to data, loss of connectivity or difficulties associated with incomplete or incorrect data, or for interruption of business, even if advised of the possibility of such damages, regardless of the form of action, notwithstanding the failure of the essential purpose of any limited remedy. The Company shall not be liable for any loss or damage resulting from any delay or failure to perform an obligation or provide the Solution due to: (i) non-performance of the technologies upon which the Solution is reliant (specifically including GPS Services, Cellular Services, SMS Services and RF Networks provided by or influenced by any third parties); or (ii) any failure or downtime of the Data Services, including information contained in the Web Application or inability to access the Web Application. Except for Company’s indemnification obligations set forth in Section 7, Company’s total liability to Customer for damages under this Section will not exceed two times the amount of license fees paid by Customer in the 12 months immediately preceding the alleged breach.
- Confidentiality. In the course of their dealings, the parties may disclose to one another information either designated as confidential, or which, by its nature, might reasonably be assumed to be confidential, including, without limitation, information relating to their business and products (“Confidential Information”). Except as mandated by any law, neither party will disclose Confidential Information to any third party, other than to its employees, without the express written consent of the other party, nor will a party make use of any Confidential Information other than in the performance of its rights or obligations contained herein. Each party, and its respective employees or contractors, will use at least the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information. Confidential information does not include: (i) information generally available to or known to the public unless improperly made known by the recipient; or (ii) that can be shown by written records to have been independently developed by the recipient prior to this Agreement.
- Intellectual Property Rights. All intellectual property rights in the Hardware, Licensed Software, Firmware and all other components of the Solution, including, without limitation, source codes, reports, ancillary documents, manuals and other material created for the purposes or by means of the provision of the Solution, other than the data generated by the Solution in relation to the Customer’s operations (“User Data”), shall at all times be vested in the Company. All intellectual property rights in the User Data shall vest in the Customer.
- Termination. Without prejudice to any other rights a party may have at law or in equity or otherwise, and subject to the provisions of Article 18 (Cure Period), either party may terminate this Agreement if the other party is in default of a material obligation and if such default has not been remedied by the party in default within thirty (30) days of receipt of written notice. If the Customer is in default of any of its obligations and has not cured such default within thirty (30) days, the Company may, in its absolute discretion, instead of terminating this Agreement, suspend access to the Web Application for so long as the Customer remains in default. In the event of termination, the Customer shall no longer be authorized to access the Web Application, but all restrictions imposed on the Customer and all disclaimers, limitations of liability, and indemnification obligations set out in these terms and conditions shall survive.
- Assignment. Neither party shall be entitled to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, provided that either party may assign this Agreement on a transfer of the whole, or substantially the whole, of its related business or in connection with a merger, consolidation, reorganization, financing or other similar corporate transaction.
- Relationship of the Parties. Nothing in this Agreement shall be construed as creating any agency or partnership between the parties; and neither party shall have any express or implied power or authority to act on or make any representations on behalf of the other party.
- Force Majeure. Except with respect to the payment of the fees, neither party shall be liable to the other party for any delay or failure in the performance of its obligations hereunder due to strikes, labor disputes, lockout, ban, limitation of work or other industrial disturbance, riots, storms, floods, insurrection, vandalism, terrorism or sabotage, explosions, earthquakes, acts of God, acts of any governmental authority, war, failure or delay of any third party supplier, unavailability or shortages of materials or labor, equipment failures, or without limitation, any other cause or causes which are beyond the reasonable control of such party (each a “Force Majeure Event”); provided that, in order to be excused from delay or failure to perform, the non-performing party must act diligently to remedy the cause of such delay or failure and mitigate the impact of such delay. If a Force Majeure Event continues for longer than thirty (30) days, Customer shall have the right to terminate this Agreement.
- Waiver and Severability. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself, or any other right or remedy available to either party under this Agreement. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions shall be changed, amended and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of the applicable law or applicable court decisions.
- Governing Law. The Agreement shall be governed by the laws applicable in the State of Georgia USA without regard to any conflict of law provisions.
- Entire Agreement. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matters contained herein. This Agreement may only be changed or amended by mutual agreement of each party’s authorized representatives in writing. In the event of a conflict between anything contained in this Agreement and any of the Sales Orders, the provisions contained in this Agreement shall take precedence.
- Cure Period. With the exception of payment obligations contained in this Agreement, if either party is in default of any other obligation under this Agreement, the non-defaulting party shall give the defaulting party written notice of its default. If the defaulting party does not remedy the default within a thirty (30) day cure period where such breach is reasonably capable of being cured within such time, then the defaulting party shall be in breach of this Agreement. Notwithstanding the foregoing, where a breach is not reasonably capable of being cured within such thirty (30) day cure period, then the defaulting party shall have up to ninety (90) days to cure so long as it commences to take commercially reasonably action to cure such breach during the thirty (30) day cure period and continues such action thereafter.
- Restriction Regarding Systems. Customer acknowledges and agrees that the Solution includes valuable proprietary information and trade secrets of Company, its suppliers and representatives. Customer agrees that it will not use any part of the Solution or the Proprietary Rights save and except as expressly authorized and permitted by this Agreement.
- Public Information. Company shall be entitled to publicize, or otherwise make public, information regarding its provisions of the Solution to Customer including, without limitation, referring to and describing the Customer’s business and business model.
- Attorney’s/Lawyer’s Fees. In the event any dispute arises between the parties hereto to enforce or interpret the provisions of this Agreement (including any arbitration, mediation, litigation, or other enforcement or interpretation of this Agreement), the prevailing party in such action shall be entitled to recover from the other party all reasonable cost, expense, attorney’s/lawyer’s fees, and costs actually incurred relating to or arising from such action.
- Cellular Services: radio-based services providing two-way communications
- Company: Cooltrax Americas, LLC, its subsidiaries, related companies and/or its nominees
- Customer: the person or business for which the Company is rendering services as well as its subsidiaries, related companies employees, agents, contractors, successors and permitted assignees and/or nominees.
- Deployment: a logical batch of enhancements or changes made to the Licensed Software
- GPS Services: shall mean Global Positioning Satellite Services provided by Third Parties
- Hardware: shall mean a monitoring device unit and ancillary equipment developed by the Company
- Hardware Warranty: the warranty provided by the Company in respect of the Hardware supplied to the Customer
- Initial Term: a period of three (3) years commencing from the Service Activation Date
- RF Networks: wireless communication networks other than cellular networks
- Sales Order: a written order for Hardware and related Solution components placed by the Customer
- Service Activation Date: the date Customer installs the Hardware and the Company provides the Customer with access to the Licensed Software
- SMS Services: SMS Messaging Services provided by Third Parties
- Third Parties: shall include organizations other than the Company or the Customer that provide services to either the Company or the Customer including, but not limited to, satellite providers, telecommunications companies, data messaging providers and software providers
- Web Application: the Company domain which is used to access the Licensed Software
Company will maintain a Support Desk during normal Business Hours (Monday to Friday 9:00 a.m. to 6:00 p.m. EST, excluding public holidays) to answer questions from the Customer regarding the administration or operation of the Solution. The Customer may initiate inquiries to the Company support desk by phone or email. Requests received after Business hours shall be deemed to be received during the next business day. Cooltrax Standard Client Support includes:
- Telephone, email assistance (All support services are provided in English)
- Assistance with problem identification and resolution
Response Times and Ticket Priorities
Cooltrax Client Support assigns the most critical tickets the highest priority. Tickets will be assigned one of the following priority levels based on business impact:
Critical (Top Priority) –
These tickets have a high impact on customer operations. For example, the Cooltrax servers or network communications are inoperable. For a Level 1 issue, Cooltrax immediately employs resources until the issue is resolved or until an acceptable workaround is found. Cooltrax will issue prompt status reports on these tickets until resolved.
Major (High Priority) –
Major issues are characterized by services not completely disrupted, but functionality is significantly compromised and there is no current workaround. Cooltrax immediately employs resources to the issue and work continues until the issue is resolved or an acceptable workaround is found. Cooltrax will issue status reports on these tickets via standard email communication.
Moderate (Medium Priority) –
Cooltrax manages system validation, sensor mappings and day to day requests by following its standard support process. Any required changes for these issues will be bundled into future releases.
Limited (Low Priority) –
Either the impact or the urgency is low for these tickets, as they typically involve non-critical functionality, such as non-standard behaviour that does not affect the tracking of the device. Cooltrax manages non-critical issues by following its standard support process. Any required changes for these types of issues will be bundled into future releases.
Planning (Enhancement request) –
Both impact and urgency are low for these types of tickets. Cooltrax will address these issues through the firmware and development planning processes.
As part of our service commitment, Cooltrax performs maintenance on the Cooltrax servers on a regular basis. This may include new features, updates, Firmware and Hardware upgrades.
To help customers with operations planning, Cooltrax will provide notification of all new website releases.
Cooltrax customers can expect Firmware maintenance updates to run on occasion in the background. New Firmware updates ensure that your devices receive the latest features and functionality required to obtain a maximum return on your investment from Cooltrax. It also ensures that you receive the highest level of support.