Contelligent Terms & Conditions (these “T&C’s”) have been established by OnePlus Systems, Inc., an Illinois (USA) corporation dba Contelligent or its subsidiary, M2M Telematics Ltd., t/a (d/b/a) Contelligent (collectively, “Contelligent”) to govern the use of its proprietary hardware devices that can be installed on commercial compactors (“Monitors”) or installed in, or affixed to, bins, FELs, tanks, enclosures and similar containers (“Sensors”) and other related equipment (collectively, “Equipment”) and certain services related thereto (“Services”). These Terms & Conditions are attached to and incorporated by reference into each Order Form (each, an “Order Form”) executed by Contelligent and the Customer indicated on such Order Form (the “Customer”).
1. EQUIPMENT AND SERVICES
1.1. General. The Order Form identifies (a) the specific Equipment and Services that Customer desires to acquire, (b) whether the Equipment is being purchased or whether the Customer has selected the MaaS Option (as further described below), (c) the Initial Term (as defined below), (d) the associated fees, and (e) other applicable terms. Unless otherwise specified on the Order Form, payment of charges is due within 30 days of Contelligent’s invoice, which invoice will include any applicable taxes and shipping and handling fees.
1.2. Services in General. For purposes hereof, Services consist of (a) general services described on an Order Form, such as installation and support, (b) the Contelligent Analytics software based services (the “Contelligent Analytics Services”) including monitoring and analytics services in conjunction with the use of Monitors or Sensors and (c) those services included in the MaaS Option, if applicable. The Contelligent Analytics Services are provided via Contelligent- owned and hosted software applications that are accessed via the internet and are delivered during the Term.
1.3. Monitoring as a Service. If indicated on the Order Form, Contelligent will provide Monitoring as a Service (“MaaS” or the “MaaS Option”) and will grant Customer a non-exclusive limited, revocable, royalty free license to use and access specified Equipment and Services during the Term. Contelligent will install and maintain such Equipment as part of the MaaS Option in consideration of the payments by Customer as indicated on the Order Form. For avoidance of doubt, when a Customer elects the MaaS Option, the Equipment is not being purchased or sold.
1.4. Ownership – Title and Risk of Loss. Contelligent will deliver the Equipment to the location(s) specified on the Order Form (freight prepaid and charged to Customer) and, if indicated on the Order Form, Contelligent will install the Equipment. Upon payment in full as set forth on the Order Form, title of any purchased Equipment will vest in Customer and the risk of loss will transfer to Customer upon delivery to the specified location or, if applicable, upon completion of installation by Contelligent. Title and ownership of each of (a) Equipment accessed via MaaS and (b) Firmware and Software (defined in Section 2.1 below) shall remain vested in Contelligent.
1.5. Installation, Maintenance, Repair. Unless otherwise set forth on the Order Form, Customer is responsible for installing Equipment in accordance with all with relevant instructions and procedures. With respect to Customers who have elected to purchase the Equipment, (a) Customer must notify Contelligent within 14 days of delivery if the Equipment is incomplete or non-functioning in which case, Contelligent will deliver a replacement of the Equipment or applicable parts and (b) Contelligent shall provide installation, maintenance or repair services if such Services are indicated on the applicable Order Form. For Customers who have selected the MaaS Option, maintenance and repair of Equipment is included throughout the Term.
2. LICENSES
2.1. License in General. The Equipment incorporates certain software or computer code assets owned by Contelligent (“Firmware”), and the Services may be provided via certain software, computer applications, computer code or other intellectual property owned by Contelligent, whether via the internet or downloadable (“Software”). Contelligent hereby grants to Customer a nonexclusive, royalty-free, revocable license to use the Firmware and the Software in conjunction with its use of the Equipment during the Term (defined below) solely for the purposes specified in each applicable Order Form. Such license will include access during the Term to any updates or improvements, as applicable, that Contelligent may develop and provide to its customers generally at no additional charge. Customer will not acquire any title, ownership or other rights of any kind to the Firmware or the Software, other than the limited license granted hereby.
2.2. Use Restrictions. Customer may authorize its employees and contractors, as well as employees and contractors of third parties that are affiliated with, or customers of, Customer (“Users”) to use the Services or MaaS, as the case may be, provided that Customer shall be responsible for any action or omission of any such User that would constitute a breach of these T&C’s or the Order Form. For purposes hereof, employees and customers of third parties that are affiliated with, or customers of, Customer are sometimes referred to “Affiliate Users”. Upon reasonable request of Contelligent, Customer will supply a list of the names and locations of its Users, and will indicate thereon whether such Users are Affiliate Users. Users may only use the MaaS, Firmware and Software, as the case may be, for internal business purposes and may not sell, transfer or sublicense the same or use the same for benchmarking purposes. Customer will not, and will not permit any other person to, copy, modify, reverse engineer or prepare derivative works of any Firmware or Software.
2.3. Data. The Monitors and Sensors collect and transmit fullness data. Data will be accessible to Customer via the Contelligent Analytics Platform. Customer hereby grants to Contelligent a non-exclusive, fully paid, royalty-free, world-wide and irrevocable license to use such data as well as such data described in Contelligent’s privacy policy as set forth in Section 6.4 below (collectively, “Customer Data”) to: (a) provide the Services; and (b) to create anonymized, aggregated system data (such aggregated data will be owned by Contelligent). Customer hereby grants Contelligent full access to Customer Data and will ensure the cooperation of its personnel and third parties so that Contelligent receives the Customer Data regularly. Contelligent’s provision of performance reviews and pre- and post- ROI reporting is conditioned upon this access. Customer acknowledges that Contelligent may use Customer Data on an anonymized basis to improve its services and marketing efforts (e.g. publications of industry information such as average hauls by region, average tonnage by vertical or use) and to provide recommendations to clients and prospective clients.
3. TERM AND TERMINATION
3.1. Term of Each Order Form. The term of each fully executed Order Form will begin on the Contract Date stated thereon and continue for the term stated thereon unless terminated earlier pursuant to this Section 3.
3.2. Service Term for Services. The initial service term for Services will be as stated on the Order Form (the “Initial Term”). Unless otherwise stated on the Order Form, the Initial Term will automatically renew for successive additional twelve month periods (each, a “Renewal Term” and, together with the Initial Term, the “Service Term”) unless either party notifies the other party of its intention to terminate in writing 60 days prior to the end the Initial Term or Renewal Term, as the case may be, in which event, the Service Term will expire at the end of such Initial Term or Renewal Term.
3.3. Early Termination. An Order Form, may be terminated by (a) either party if the other party (1) breaches any provision of these T&C’s or an Order Form and such breach is not cured within 30 days written notice thereof or (2) becomes subject to any bankruptcy proceeding and such proceeding is not dismissed within 60 days of initiation or (b) by Contelligent, if Customer fails to pay any amounts due hereunder within ten days after receiving written notice from Contelligent that Customer has not made the required payments. In the event of an uncured default hereunder Contelligent shall have the right, in addition to those provided at law, to suspend Services and to remove any Equipment that has not been purchased and paid for by Customer, at the Customer’s expense, during normal business hours upon notice to Customer.
3.4. Effect of Termination. If Customer terminates an Order Form for Services prior to the expiration of the applicable term, for any reason other than uncured default by Contelligent, then, in addition to any other fees provided for by herein or in such Order Form, Customer agrees to pay service termination fees as indicated on the Order Form, or if no such fees are indicated, then a termination fee equal to the greater of (a) $600 or (b) sum of the number of months remaining in the Service Term for such Services multiplied by the applicable monthly service fee.
3.5. Obligations Upon Termination. All licenses granted under Section 2.1, if any, as described in the Order Form shall terminate immediately upon termination of such Order Form. In addition, MaaS Customers shall return all Equipment in good condition and via a reputable courier, all shipping fees prepaid and insured. Customer shall pay all fees due until the effective date of termination, including any applicable termination fees and each party will return or destroy all the Confidential Information (as defined below) of the other party. Customer shall be responsible for all Equipment that is damaged during transit.
4. FEES
4.1. Fees. Fees are set forth on the applicable Order Form and, unless specified otherwise, due within 30 days of invoice. If permitted on the Order Form, customer may pay by ACH transmission or credit card. Customer will be responsible for any charges by third parties for credit card payments, wire transfers or bank fees. Fees paid are non-refundable. In conjunction with each Renewal Term, Contelligent will have the right to increase applicable Service fees by an amount not to exceed 5% of the fees due in the preceding Initial Term or Renewal Term, upon notice thereof to Customer.
4.2. Late Payments. Customer agrees to pay a late fee for all past due payments, in the amount of 5% of the applicable fee or charge, per month from the date of delinquency until such amount is paid in full.
4.3. Recurring Fees. Unless otherwise agreed, all recurring payments will be due at the beginning of the applicable service period. For recurring monthly fees, payments will be due on the first of the month in which Services are to be provided; for recurring annual fees, payments will be due and payable not later than 30 days after the first day of the applicable contract year of the Service Term.
4.4. Costs. Prices are exclusive of delivery costs, sales taxes, VAT, and other levies or charges, and all such costs will be charged to Customer. Customer shall save and hold harmless Contelligent from all liability in connection with any taxes or other fees that may apply to Equipment or Services.
5. WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION, INSURANCE
5.1. Equipment Warranty. Contelligent warrants to Customer that the Equipment shall be substantially free from defects in material, manufacturing workmanship, and title, and that the Equipment will operate as described in all technical specifications (but not marketing materials) provided to Customer (the “Equipment Warranty”). The duration of the Equipment Warranty will be (a) 12 months from the date of delivery for purchased Equipment and (b) throughout the Term for Equipment included in the MaaS. The Equipment Warranty also shall apply to any replacement parts supplied by Contelligent for comparable periods. In satisfaction of its obligations under this Section, Contelligent will be responsible only for the cost of replacement parts or equipment, which Contelligent will ship to Customer. In addition, unless otherwise agreed, Customer will be responsible for all labor necessary to install replacement parts or reinstall replacement units or equipment. The foregoing warranty obligations will not include damage to Equipment that is caused by the abuse or negligent operation thereof by Customer, its agents, employees, customers or any third party, or for purely cosmetic damage.
5.2. Service Warranty. During the Service Term, Contelligent warrants that Services will operate as described in all applicable technical specifications (but not marketing materials) provided to Customer (the “Service Warranty”). In satisfaction of its obligations under this section, Contelligent will be responsible only to take commercially reasonable steps to cause the affected Services to comply with the Service Warranty. All warranty and non-warranty support services will be provided in accordance with Contelligent’s “Support Policy,” which can be found online via the following link: https://wasteharmonics.com/support-policy/. Contelligent may amend its Support Policy from time to time; and the new policy will take effect when posted on Contelligent’s website.
5.3. Warranty Limitations. EXCEPT AS SET FORTH IN SECTIONS 5.1 AND 5.2, AS APPLICABLE, ALL EQUIPMENT AND SERVICES, INCLUDING MAAS, FIRMWARE AND SOFTWARE, ARE PROVIDED BY CONTELLIGENT “AS IS” AND “AS AVAILABLE” AND ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT , MERCHANT ABILITY , FITNESS FOR A P ARTICULAR PURPOSE, OR ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. CONTELLIGENT DOES NOT WARRANT THAT: (A) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR WILL BE AVAILABLE ON AN UNINTERRUPTED BASIS AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS CAN OR WILL BE CORRECTED; (C) ANY FIRMWARE OR SOFTWARE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE EQUIPMENT OR SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. CONTELLIGENT IS NOT RESPONSIBLE FOR SERVICE UNA V AILABILITY CAUSED BY CIRCUMST ANCES BEYOND CONTELLIGENT’S REASONABLE CONTROL OR BY THE ACTS OR OMISSIONS OF CUSTOMER OR THIRD PARTIES.
5.4. Liability Limitations. IN NO EVENT SHALL CONTELLIGENT, OR CONTELLIGENT’S AFFILIA TES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS OR PARTNERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR EQUIPMENT, INCLUDING THE SOFTWARE AND FIRMWARE: (A) FOR ANY LOST PROFITS, DATA LOSS OR REPLACEMENT COST, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR FOR SUBSTITUTE GOODS OR SERVICES HOWEVER ARISING; (B) FOR ANY DAMAGES OF ANY KIND CAUSED BY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, REGARDLESS OF THE SOURCE OF ORIGINATION OR FOR ANY DAMAGES CAUSED BY UNAUTHORIZED INTRUSIONS BY THIRD P ARTIES INTO CONTELLIGENT’S SYSTEMS; (C) FOR ANY DIRECT DAMAGES IN EXCESS OF THE SUMS PAYABLE UNDER THE THEN- APPLICABLE TERM OF THE ORDER FORM PURSUANT TO WHICH THE EQUIPMENT OR SERVICES FROM WHICH THE LIABILITY ARISES WERE PURCHASED; OR (D) FOR ANY AND ALL LIABILITIES ARISING FROM INJURIES OR DEATH TO ANY PERSON INCURRED BY CUSTOMER OR ANY PERSON CLAIMING BY OR THROUGH CUSTOMER EXCEPT IF AND TO THE EXTENT THAT SUCH DEATH OR PERSONAL INJURY WAS CAUSED DIRECTLY BY CONTELLIGENT’S GROSS NEGLIGENCE.
5.5. Indemnification. Each party (an “Indemnifying Party”) will indemnify, defend and hold harmless, the other party against any claim, demand, suit, or proceeding (“Claim”) made or brought against the other party by a third party alleging that the use of the any materials provided by the Indemnifying Party infringes or misappropriates the intellectual property rights of a third party; and each Indemnifying Party will indemnify the other party for any damages finally awarded against the other party in connection with any such Claim; provided, that the other party: (a) promptly gives written notice of the Claim; (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party may not settle any Claim unless the settlement unconditionally releases the other party of all liability); and (c) provides all reasonable assistance. This Section states each Indemnifying Party’s sole liability to the other party, and each Indemnifying Party’s exclusive remedy against the other party, for any type of Claim described in this Section.
5.6. Insurance. Contelligent will maintain liability insurance coverages in accordance with Contelligent’s Insurance Policy, which is available via the following link: https://wasteharmonics.com/wp-content/uploads/2022/08/2022-2023-COI.pdf. Contelligent may amend its Insurance Policy from time to time; and the new policy will take effect posted on Contelligent’s website.
6. CONFIDENTIALITY
6.1. Confidential Information. “Confidential Information” means all information disclosed by one party to the other party, whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Customer’s Confidential Information shall include Customer Data and Contelligent’s Confidential Information shall include the Software, Firmware and all technical information relating to Equipment and Services. Confidential Information of each party shall include these T&C’s and all Order Forms. The term Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party, (c) is received from a third party without breach of any obligation owed to the disclosing party, or (d) was independently developed by receiving party.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the disclosing party, (a) the receiving party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) to not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of these T&C’s and the Order Forms, and (b) the receiving party shall limit access to Confidential Information of the disclosing party to Users who need such access for purposes consistent with these T&C’s and the Order Forms and who have confidentiality obligations with the receiving party containing protections no less stringent than those herein.
6.3. Compelled Disclosures. If a party is required to provide information to any applicable legal authority regarding Confidential Information (“Request”), such party will, if permitted by applicable law (a) promptly notify the other party of its receipt of the Request; (b) comply with the other party’s reasonable requests regarding the processing of the Request; and (c) disclose only the minimum amount of Confidential Information requested; and (d) take reasonable steps to ensure that the disclosure does not result in further disclosure of the requested information to improper or unauthorized parties or the public.
6.4. Privacy, Protection of Data. Use of all Services will be subject to the terms of Contelligent’s privacy policy, which is available via the following link: https://wasteharmonics.com/privacy-policy/. Customer will maintain reasonable administrative and technical safeguards designed to limit access to Contelligent’s system to Users. Contelligent may amend its privacy policy from time to time; and the new policy will take effect when posted on Contelligent’s website.
7. CUSTOMER EQUIPMENT, UTILITY SERVICES
7.1. Maintenance and Repair. Unless otherwise agreed and subject to Contelligent’s obligations under Section 5.1, Customer will be solely responsible for the maintenance and repair of purchased Equipment. Failure by Customer to maintain such purchased Equipment in good working order shall not be grounds for Customer terminating an Order Form. Contelligent will maintain and repair Equipment for Customers who have selected the MaaS Option, provided that Contelligent shall not be responsible for maintenance and repair of Equipment damaged due to Customer’s negligence or willful misconduct.
7.2. Third Party Services. Unless otherwise agreed, Contelligent shall not be responsible for the installation of utility services, including power, wireless data connectively, internet services/wired data connectivity., that may be necessary to operate the Equipment or access the Services, nor for any utility service charges attributable to the operation of Equipment or Services. In no event will Contelligent guarantee that the wireless data transmission service provided by any third party carrier will be uninterrupted, unchanged, or error free. Customer will be solely responsible for all charges imposed by utility service providers. Upgrades/changes by wireless carriers are outside of Contelligent’s control; however, Contelligent shall use reasonable efforts to provide Customer with notice prior to any scheduled carrier change/upgrade that will necessitate a Firmware or hardware upgrade if Contelligent becomes aware that such upgrade/change is scheduled to occur.
8. MISCELLANEOUS
8.1. Entire Agreement. The Order Form and these T&C’s incorporated therein shall constitute a legally binding contract by and between Contelligent and the Customer and their respective successors and permitted assigns and contain the entire agreement of the parties. All other written or oral agreements are superseded. The Order Form may not be changed, modified, terminated or discharged except in writing signed by both parties. Customer also represents that it has the authority to bind any Affiliates who acquire Equipment or Services under the Order Form. An “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
8.2. Third Party Use. Customer agrees that it will not (a) use any Equipment, Software or Services to provide services to third parties or (b) permit any third party to use any Equipment, Software or Services; provided that such restrictions shall not apply to Equipment that has been purchased by Customer. Customer further agrees that, at any time after an Affiliate User ceases to be a customer of Customer as provided in Section 2 above, Contelligent may enter into an agreement directly with such User provided that Contelligent has not directly solicited such Affiliate User to end its customer relationship with Customer.
8.3. Notices. All notices permitted or required under these T&C’s or an Order Form shall be in writing and shall be delivered (a) in person or by overnight courier, (b) by email, or (c) mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the signature page or such other address as either party may designate in writing.
8.4. Assignment. Order Forms may not be assigned by Customer absent the prior written consent of Contelligent. Contelligent may assign Order Forms in connection with any sale or transfer of all or substantially all of the assets of Contelligent.
8.5. Governing Law. Order Forms and these T&C’s incorporated therein will be governed by and construed in accordance with the laws of the State of Illinois, USA (not including any conflict of law provisions) provided that if Customer is registered in the European Economic Area or the UK, the law of Ireland will govern the interpretation of Order Forms and these T&C’s incorporated therein. Except as provided below, each party also agrees, consents and submits to the exclusive jurisdiction of the courts in the State of Illinois, USA, and no action involving Order Forms and these T&C’s incorporated therein may be brought except in the Circuit Court of Cook County, Illinois, USA or the United States District Court for the Northern District of Illinois, USA. If the law of Ireland governs Order Forms and these T&C’s incorporated therein, then each party submits to the exclusive jurisdiction of the applicable courts in Dublin.
8.6. No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of Order Forms and these T&C’s incorporated therein will not be presumed to operate as a waiver, and a partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege.
8.7. Right of Entry, and Cooperation. Customer agrees that, upon reasonable notice, if Contelligent is providing services that require on-site presence (e.g. installation, maintenance, upgrade, repair of Monitors), Customer will provide Contelligent personnel and its authorized contractors with access to all relevant site locations during normal business hours for the purpose of providing such services, and Customer will also provide reasonable cooperation to Contelligent and its authorized contractors in the performance of such services.
8.8. Proprietary Markings. Neither party shall remove any trademark, trade name, copyright notice, patent marking, confidentiality, or other proprietary rights notice or marking from any materials provided to it by the other party in connection with these T&C’s or any Order Form; provided that Contelligent may use Customer’s name and logo in its published customer list.
8.9. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation Internet denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, pandemics, epidemics, war, terrorism, governmental action, labor conditions, internet service provider failure or delay, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
8.10. Conflicts. In the event of a conflict between the terms of these T&C’s and an Order Form, the more specific terms shall control and if such specificity is not present, the terms of the Order Form shall control.
8.11. Survival of Terms. Notwithstanding anything to the contrary, the following terms and conditions will survive the expiration or termination of an Order Form: Sections 2.2, 3.5, 4, 5.3-5.5, 6 and 8.