Sales and other transactions under these Terms and Conditions (these “Terms”) are by either IT US Acquisition Company, LLC, a Missouri USA limited liability company that does business as SureCam or SureCam (Europe) Limited, a UK private limited company (in either case, “SureCam”) to the entity named as the buyer, purchaser, or customer (“Customer”) in the Sales Order or other documentation to which these Terms are attached or with which these Terms are associated and are conditional upon Customer’s agreement with these Terms and only these Terms. If these Terms are first tendered to Customer before Customer tenders a purchase order or similar document to SureCam, these Terms are in lieu of any terms later submitted by Customer and SureCam rejects all additional or different terms and conditions of Customer, whether confirmatory or otherwise. If SureCam tenders these terms after the tender by Customer of other terms, whether as part of a purchase order or otherwise, then SureCam’s acceptance of any offer by Customer associated with Customer’s terms is expressly conditioned upon Customer’s acceptance of these Terms exclusively and to the exclusion of any proffered Customer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Customer. Customer’s performance, or acceptance of, or payment for, any products from SureCam will constitute Customer’s acceptance of these Terms exclusively. These Terms, together with any associated Sales Order or any other description of the products and quantity and price terms that are the subject of the transaction under these Terms constitute a “Supply Agreement.” Customer represents and warrants that any products that it purchases from SureCam are for business or commercial use only and not for domestic, personal, family, or household use.
1. DEFINITIONS. In addition to terms defined at other places in these Terms, the following terms will have the following meanings for the purposes of these Terms, Sales Orders and the Schedules and any attachments to these documents.
(a) An “Affiliate” of a person is another person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such the person where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract, or otherwise and “person” means an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a business trust, unincorporated organization, or unit of government.
(b) “Data” means information gathered by the Equipment and processed or stored by SureCam in connection with providing the Services.
(c) “Demarcation Point” means the outermost point on SureCam’s or its hosting provider’s firewall with the public Internet.
(d) “Documentation” means the user manuals, and operating manuals for the Services and Equipment supplied by SureCam, as SureCam updates the same from time to time.
(e) “End User” means a natural person who is a Customer or Customer Affiliate employee or contractor and who is designated by Customer to use the Services and access the Data.
(f) “Equipment” means the cameras or other equipment provided by SureCam as specified in a Sales Order.
(g) “Fees” means the charges for the Services, Equipment or Professional Services described in a Sales Order.
(h) “Intellectual Property Rights” means copyrights, patents, rights in trademarks and trade dress, and application and applications rights therefor.
(i) “Maintenance and Support Services” means the standard SureCam support services described on Schedule 1.
(j) “Malicious Code” means computer software, code, or other instructions intended to gain or facilitate unauthorized access to, prevent authorized access to, damage, disable, or degrade the performance of, computer systems or data. The term includes, but is not limited to, such software, code, or instructions commonly referred to as “viruses,” “worms,” “Trojan horses,” and “spyware.”
(k) “Professional Services” means services, in addition to the Services, that are so designated in a Sales Order.
(l) “Sales Order” means the order signed by the Parties describing the specific Services, Equipment and/or Professional Services to be provided by SureCam.
(m) “Services” means the services, other than Professional Services, that a Supply Agreement requires SureCam to provide to Customer.
(n) “Term” means the Initial Term and any Renewal Term.
2. SCOPE OF AGREEMENT
(a) General. SureCam will use commercially reasonable efforts to meet any delivery dates set forth in a Sales Order, but these dates are estimates only.
(b) If SureCam provides Customer with a SIM card in connection with the Equipment, Customer will only use it in conjunction with the Equipment and with normal usage volume. SureCam reserves the right to recover from Customer costs of excess or unauthorized usage.
(c) Order of Precedence. In the event of a conflict between or among these Terms, one or more Schedules, and a Sales Order, the respective documents will apply in the following descending order of precedence. The Sales Order, then these Terms, then the respective Schedules in numerical order.
(d) Customer Documents. SureCam may accept and process customer purchase orders or similar documents. Any such acceptance will be solely for administrative convenience and no provision of any such Customer document, other than Equipment, Service, and/or Professional Service descriptions and pricing consistent with these Terms and the Schedules, will have any effect.
(e) Non-Exclusive Agreement; Independent Contractors. The arrangement set forth in each Supply Agreement is non-exclusive and no Supply Agreement will prevent or prohibit either party from entering into similar agreements with other providers, purchasers, licensors, or licensees, as the case may be, of products or services similar to those under a Supply Agreement. The parties are independent contractors. Nothing in a Supply Agreement or in the activities contemplated by the parties under a Supply Agreement will be deemed to create an agency, partnership, employment or joint venture relationship between the parties. Each party will be deemed to be acting solely on its own behalf and has no authority to bind the other to any third party. SureCam will use its sole discretion to determine the manner or method for completing the Services.
(a) Generally. SureCam will provide to Customer the Services at the Demarcation Point according to the service levels described in Schedule 1, for the duration identified in the applicable Sales Order.
(b) Affiliates and End Users. Customer may permit its Affiliates and End Users to use the Services and Equipment, provided that Customer will be and remain liable for any act or omission that, if committed or omitted by Customer, would be a breach of a Supply Agreement.
(c) Account(s). Customer will be solely responsible for all use (whether or not authorized) of the Services, Documentation, and Data under each Supply Agreement. SureCam will set up and make available to Customer user accounts for End Users (each such account an “Account”). Each Account is personal in nature and may be used only by Customer or its designated End Users. Customer is solely responsible for all use of the Service and Equipment by each End User and for compliance by each End User with the applicable terms of each Supply Agreement. Customer will be solely responsible for all acts and omissions of its End Users. Customer will ensure the security and confidentiality of each Account ID and will notify SureCam immediately if any credentials for any Account are lost, stolen or otherwise compromised. Customer will be solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each End User to connect to, access, and use the Services.
4. LIMITATIONS; PROHIBITIONS. Except as expressly permitted by a Supply Agreement, Customer will not, and Customer will not permit any End User or third party to:
(a) Copy, modify, or create derivative works or improvements of the Services or the Equipment;
(b) Except where Customer makes available the Services or Equipment as to its Affiliates and/or its or their End Users as contemplated by Section 3(b), rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Equipment to any third party, including, but not limited to, by or through any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service;
(c) Reverse engineer, disassemble, decompile, decode, adapt, or otherwise derive or gain access to the source code of the Services or Equipment, in whole or in part, or attempt to do the same;
(d) Remove or alter any copyright, trademark, or other proprietary right notice with respect to the Services or Equipment;
(e) Bypass, circumvent, or breach any security device, license key, or protection used by SureCam or contained in the Services or Equipment, or access or use the Services or Equipment other than through the use of a then-valid Account;
(f) Input, upload, transmit, or otherwise provide to or through the Services or Equipment, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malicious Code;
(g) Access or use the Services or Equipment in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property, contract, or other right of a third party (including, but not limited to, by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other SureCam customer, or the unauthorized or unlawful use or disclosure of any personal information, or that violates any applicable law;
(h) Access or use the Services or Equipment: (i) For purposes of analysis, comparison, or benchmarking of the Services or Equipment against third-party goods, services, or software where such analysis, comparison, or benchmarking is made available to one or more third parties; or (ii) The development, provision, or use of any good, service, or software that competes with the Services or Equipment;
(i) Use any SIM card or communications capability for, or as, a satellite modem, WAP, voice communication, SMS, USSD, SIM-boxing, SIM-banking, or APN.
(j) Provide, or make available, Account credentials to any person other than an End User.
(a) Purchase and/or Lease of Equipment. Customer may purchase and/or lease Equipment from SureCam under this one or more Sales Orders entered into by Customer and SureCam. Additional terms and conditions applicable to Equipment purchased or leased from SureCam are set forth on Schedules 2 and 3, respectively.
(b) Delivery/Installation of Equipment. SureCam will deliver the Equipment in accordance with the terms of the applicable Sales Order. If no delivery terms are stated in a Sales Order, the delivery terms in the United States are FOB (UCC 2-319) SureCam’s or its supplier’s facilities and delivery terms outside the United States are EXW (Incoterms 2020) SureCam’s or its supplier’s facilities. After delivery of the Equipment, Customer will install the Equipment in its vehicles in accordance with SureCam’s instructions, unless the Sales Order provides for installation by SureCam or a third-party installer
6. USE OF DATA.
(a) Data Generally. SureCam may use the Data in order to provide the Services and Equipment under all Supply Agreements.
(b) Anonymization. Data that has been anonymized, pseudonymized or depersonalized so as not to identify Customer, Customer’s personnel or any of Customer’s confidential information may be used by SureCam for any purpose.
(c) Diagnostic Information. SureCam may collect, use, store, process, and analyze diagnostic, technical information and use it for purposes of performing the Services, including, but not limited to, Maintenance and Support, improving its goods, services and/or software, developing new goods, services, and/or software, or any other purpose as determined by SureCam.
(d) Feedback. Customer may submit enhancement requests, usability suggestions, new features or functions, questions and/or bug reports (“Feedback”). SureCam may use Feedback for any purpose, free of any royalties or fees to Customer.
(e) Retention of Data. Customer may make copies of the Data collected by SureCam as part of the Services for Customer’s own internal use. SureCam will make available to Customer the Data associated with Customer’s use of the Services SureCam hosted server for a period of two (2) months, after which time SureCam may delete the Data.
7. CUSTOMER RESPONSIBILITIES. The following obligations of Customer are in addition to all other obligations in each Supply Agreement.
(a) Related Costs. Except as specifically set forth in a Sales Order, Customer will have sole responsibility for the costs, expenses, and deployment of any interconnection, installation. and testing to receive the Services.
(b) Network Connections. Customer must connect via a network to SureCam’s systems (“Network Connection”) and may not use the Network Connection or its equipment or systems in a way that interferes in any way with or adversely affects SureCam’s systems.
(c) Cooperation, Designation of Responsible Contacts and Access to Vehicles. Customer will:
(i) Cooperate with SureCam in all matters relating to the Services and Professional Services;(ii) Provide to SureCam current appropriate contact information such that SureCam may communicate to Customer maintenance notifications, outages, support items, and other communications on an ongoing basis; (iii) Provide to SureCam information and materials necessary to perform the Services and Professional Services and ensure that such information is accurate in all material respects; and (iv) Obtain and maintain any licenses and/or permits necessary for Customer to use the Equipment and Services.
8. NETWORK SECURITY/DATA PRIVACY.
(a) Each party will adhere to generally accepted industry practices relating to data management, network security, and data privacy as they relate to the Network Connection and will be solely responsible for the selection, implementation and maintenance of security procedures and policies that are sufficient to ensure that:
(i) Such party’s use of the Network Connection is secure, including protecting from viruses and other malicious code or attacks, and is used only for authorized purposes; and (ii) Such party’s business records and data are protected against improper access, use, loss alteration or destruction.
9. FEES AND TAXES.
(i) Customer will pay for all Services, Professional Services and Equipment as described in the applicable Sales Order. All Fees due under the Agreement are non-cancelable and the sums paid nonrefundable. (ii) Where a Sales Order calls for periodic payments at stated intervals, Customer will pay such amounts according to the stated payment schedule. (iii) With respect to invoiced amounts, all Fees are due 30 days from the date of invoice. (iv) Any past-due Fees will bear interest until paid in full at the lesser of 1.5% per month or the highest rate permitted by law. (v) If SureCam refers any amount for collection or commences legal proceedings to collect any payment due to it under a Supply Agreement and Customer is found to be required to make such payments, Customer will be responsible for and pay all reasonable attorneys’ fees, court costs and other reasonable collection expenses incurred by SureCam.
(b) Taxes. Customer is exclusively responsible for the payment of all sales and use, value added, duties, tariffs or other similar charges or taxes on the Services, other than taxes based upon SureCam’s income. All amounts set forth in an applicable Sales Order are exclusive of taxes and taxes are not included in the Fees. Applicable taxes payable by Customer will be separately itemized on invoices sent to Customer.
(c) Expenses. If a Sales Order permits reimbursement of expenses by Customer, Customer will reimburse such expenses.
10. LIMITED WARRANTY AND DISCLAIMERS.
(a) Limited Warranty. SureCam warrants that:
(i) The Services will perform in all material respects in accordance with the Documentation therefor; and (ii) The Professional Services will be performed in a professional and workmanlike manner.
(b) The warranty in Section 10(a)(i) will not apply to the extent that: (i) the Services are not used in accordance with the applicable Supply Agreement or the Documentation, (ii) the Services or Equipment are modified other than by SureCam or with SureCam’s written approval; or (iii) SureCam’s performance is prevented by Force Majeure.
(c) To claim the benefit of the warranty in Section 10(a)(i), Customer must; (i) give notice to SureCam and (ii) provide to SureCam sufficient detail to allow SureCam to reproduce the nonconformity.
(d) SURECAM’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE WARRANTY IN SECTION 10(a) SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE SERVICES OR PROFESSIONAL SERVICES, UNLESS, IN SURECAM’S REASONABLE OPINION, SUCH REPAIR OR REPLACEMENT WOULD BE INADEQUATE OR IMPRACTICAL, IN WHICH CASE SURECAM MAY TERMINATE THE APPLICABLE SUPPLY AGREEMENT AND REFUND UNUSED PREPAID FEES, AND CUSTOMER WILL THEREUPON CEASE ALL USE OF THE SERVICES AND THE SUPPLY AGREEMENT WILL TERMINATE.
(e) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT:
(i) SURECAM DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES OR EQUIPMENT WILL BE UNINTERRUPTED OR ERROR-FREE; (ii) SURECAM DISCLAIMS ANY AND ALL IMPLIED WARRANTIES; (iii) SURECAM PROVIDES ALL GOODS, SERVICES, AND SOFTWARE WITH ALL FAULTS, THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH CUSTOMER, AND SURECAM MAKES NO WARRANTY AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICES, PROFESSIONAL SERVICES, OR EQUIPMENT, AGAINST INFRINGEMENT, OF MERCHANTABILITY, OR OF FITNESS FOR ANY PURPOSE.
(f) The Services operate utilizing public networks, including the Internet, which is not under the control of SureCam and are inherently unsecure. SureCam makes no representations, warranties, or guarantees of any kind, express, implied, statutory, or otherwise, oral or written, with respect to the performance or security of any public network.
(g) Warranties with respect to the Equipment are set forth on Schedules 2 and 3.
(a) By SureCam.
(i) SureCam will indemnify, defend, and hold harmless Customer from and against any and all third-party damages, fines, penalties, awards, or liability (“Losses”) incurred by Customer resulting from any claim by a third party (other than an Affiliate of Customer) that the Services or Professional Services, or Customer’s or any End User’s use thereof as contemplated by a Supply Agreement infringes, violates, or misappropriates such third party’s intellectual property right, provided that SureCam’s obligation will be reduced to the extent that such Action or Losses arise out of, or result from:
(A) Alteration or modification of the Services, Professional Services, or Equipment by or on behalf of Customer or any End User without SureCam’s authorization; (B) Use of the Services, Professional Services, or Equipment in combination with any good, service, or software service not provided, authorized, or approved by SureCam; (C) Access to, or use of, the Services, Professional Services, or Equipment other than as permitted by the Supply Agreement; (D) Breach by Customer of any Supply Agreement; or (E) Violation of any applicable law by Customer, any Customer Affiliate, or any of its End Users.
(ii) If the System constitutes an infringement or the use of the System is enjoined, or if SureCam reasonably believes that either might occur, SureCam may, at its option, (A) procure for Customer the right to continue use of the Services, Professional Services, or Equipment, as applicable; (B) provide a modification to the Services, Professional Services, or Equipment so that its use becomes non-infringing; (C) replace the Services, Professional Services, or Equipment with a system or services that are substantially similar in functionality and performance; or (D) refund to Customer such Fees as Customer has by then paid but that SureCam has not earned by performance or the passage of time, whereupon Customer will cease using the Services, Professional Services, or Equipment.
(iii) This Section 11(a) states SureCam’s sole liability and Customer’s exclusive remedy for claims of infringement, violation, or misappropriation of intellectual property rights.
(b) By Customer. Customer will indemnify, defend, and hold harmless SureCam and its affiliates from and against any and all Losses incurred by SureCam to the extent that such Losses arise out of or result from: (i) Any violation by Customer, a Customer Affiliate, or an End User of any applicable law; (ii) Any use of the Services, Professional Services, or Equipment by Customer, any Customer Affiliate, or any End User that is beyond the scope of or otherwise fails to conform to the express requirements or restrictions of a Supply Agreement; (iii) Any claim by a third party in connection with an actual or alleged tort committed or omitted by Customer, any Customer Affiliate, or any End User.
(c) Procedure. If a party, as indemnitee, becomes subject to a claim as to which the other party, as indemnitor, is required by this Section 11 to indemnify the indemnitee, the indemnitee will promptly give notice to the indemnitor of the claim (it being understood that any delay in giving notice will reduce the indemnitor’s obligation only to the extent of prejudice caused by the delay). The indemnitee will cooperate with the indemnitor at the indemnitor’s expense for out-of-pocket costs. The indemnitor will promptly assume, and the indemnitee will grant to the indemnitor, control of the defense and settlement of the claim with counsel of the indemnitor’s choice, provided only that the indemnitor may not, without the indemnitee’s consent (which consent the indemnitee will not unreasonably withhold, delay, or condition) enter into any settlement that binds the indemnitee that imposes any substantive term other than the payment by the indemnitor of money and the release of the indemnitee’s liability. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. LIMITATION OF LIABILITY.
(a) Except in the case of a party’s gross negligence, willful misconduct, breach of an obligation under Section 13, liability under Section 11, act or omission causing personal injury (including death) or damage to tangible personal property. or infringement, violation, or misappropriation by a party of the other party’s intellectual property rights:
(i) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER A SUPPLY AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE, OR INDIRECT DAMAGES; and (ii) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER A SUPPLY AGREEMENT FOR AN AMOUNT IN EXCESS OF THE AMOUNTS PAID OR PAYABLE DURING THE 12 MONTHS PRECEDING THE DATE UPON WHICH THE CAUSE OF ACTION ACCRUED (OR, IF 12 MONTHS HAS NOT BY THEN ELAPSED, THE AMOUNT THAT WOULD HAVE BECOME PAYABLE HAD BOTH PARTIES FULLY PERFORMED FOR 12 MONTHS).
(a) “Confidential Information” of a party means any information belonging to, or held by, the party, whether fixed in a tangible medium or otherwise, that is:
(i) Not readily ascertainable by proper means by the public; and (ii) The subject of commercially reasonable efforts by the party under the circumstances to keep it from becoming readily ascertainable by proper means by the public.
(b) Each party, as a receiving party, will do the following things with regard to the Confidential Information of the other party.
(i) Prevent the disclosure of the Confidential Information by the receiving party and each of the receiving party’s employees, agents, and/or professionals to any third party other than as permitted under these Terms. (ii) Use, and permit the use of, the Confidential Information only for the purpose of performing its obligations, or enjoying its rights, under a Supply Agreement (the “Purpose”). (iii) Disclose the Confidential Information only to such of the receiving party’s employees, agents, and professionals as have a bona fide need to possess or know the Confidential Information in the course of accomplishing, or advising the disclosing party with regard to, the Purpose. (iv) Cause each employee, agent, or professional to whom the receiving party discloses the Confidential Information to be bound by an obligation of confidentiality that is at least as rigorous as the obligations contained in these Terms. Each professional, such as a lawyer or an accountant, actually retained by the receiving party in a professional-client relationship will be deemed under an adequate obligation of confidentiality for the purposes of these Terms so long as the law recognizes an obligation of confidence actionable by the receiving party under law without a separate contractual obligation. (v) Return or destroy all written or other tangible copies of Confidential Information in the receiving party’s possession or direct or indirect control, including all extracts and copies thereof, within a reasonable time after, and in accordance with, the disclosing party’s request.
(c) Nothing in this Section 13 will prevent the receiving party from disclosing or using the Confidential Information of the disclosing party to the extent that:
(i) It is or becomes readily ascertainable by proper means by the public without any breach by the receiving party of Section 13(b); (ii) It is received from a third party that is not under an obligation of confidentiality of which the receiving party knew or had reason to know; (iii) It is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) It is required by law to be disclosed, provided that the receiving party (to the extent not prohibited by law):
(A) Provides to the disclosing party as much notice as is practicable under the circumstances of such requirement;
(B) Provides to the disclosing party, at the disclosing party’s expense, such reasonable assistance as the disclosing party requests in seeking confidential treatment, protective orders, nondisclosure, and/or similar measures; and
(C) Discloses only such Confidential Information as the receiving party, upon advice of its counsel, believes is required to be disclosed.
(d) Because unauthorized use or disclosure of Confidential Information might result in immediate and irreparable injury to the disclosing party, for which monetary damages might not be adequate, if the receiving party or any officer, director, employee, agent, professional, or subcontractor of the receiving party uses or discloses Confidential Information or any such person is likely to use or disclose Confidential Information in breach of the receiving party’s obligations under these Terms, the disclosing party will be entitled to seek equitable relief, including temporary and permanent injunctive relief and specific performance. The disclosing party will also be entitled to recover any pecuniary gain that the receiving party realizes from the unauthorized use or disclosure of the disclosing party’s Confidential Information. The rights in this Section 13(d) are in addition to any other rights of the disclosing party under these Terms, at law, or in equity.
(e) The obligations under this Section will continue after disclosure of each item of Confidential Information for the longer of:
(i) Five years after initial disclosure of that item of Confidential Information; or (ii) The time during which the Confidential Information remains a trade secret (as that term is defined in the Uniform Trade Secrets Act) of the disclosing party.
(f) The provisions of this Section replace, preempt, and are a novation of, any confidentiality agreement, nondisclosure agreement, or similar agreement between the parties that existed as of the Effective Date.
14. SUSPENSION OF SERVICES.
(a) SureCam may, upon notice to Customer, suspend its provision of Services, Professional Services, or Equipment if:
(i) Customer is in breach of Section 4; or (ii) Customer’ payment of an amount that is not the subject of a good faith dispute of which Customer has given notice to SureCam, is overdue and Customer fails to pay such amount within 15 days after SureCam gives notice thereof.
(b) SureCam may charge a reinstatement fee upon resumption of suspended Services or Professional Services.
15. TERM; RENEWAL; TERMINATION.
(a) Initial Term. The initial term of each Supply Agreement will be for the term stated in the Sales Order (or, if no such initial term is stated, one year beginning on the effective date of the Sales Order and ending on the first anniversary of the date of the Sales Order) unless otherwise earlier terminated as provided for in the Supply Agreement.
(b) Renewal Term(s). If neither party has given notice at least 60 days prior to the end of the then-current term of a Supply Agreement of its intent to terminate the Supply Agreement, the term of the Supply Agreement will automatically renew for an additional period of one year. SureCam may revise the pricing for any renewal period by a proportion up to the proportion by which the Consumer Price Index for All Urban Consumers – All Items (for Supply Agreements entered into in the United States) or the UK Consumer Prices Index (for Supply Agreements entered into in Europe) (the “CPI”) exceeds the CPI as of the last time at which pricing was set.
(c) Termination. Either party may terminate a Supply Agreement upon notice to the other party if:
(i) The other party breaches the Supply Agreement and fails to cure such breach within 30 days (15 days in the case of failure to pay an amount due with respect to which Customer has not raised by notice a good faith dispute, but no cure period applies if the breach cannot be cured) after the aggrieved party gives notice of the breach; or (ii) The other party becomes unable generally to pay its debts as they become due; ceases to do business in the ordinary course; dissolves, winds up, or its governing body approves either of the foregoing; or a receiver is appointed for a substantial part of the other party’s assets or business.
(d) Effect of Termination or Expiration. Upon any expiration or termination of a Supply Agreement, except as expressly otherwise provided in the Supply Agreement:
(i) All rights, licenses, consents, and authorizations granted by either party under the Supply Agreement will immediately terminate; (ii) Each party will return to the other party, or destroy, any Confidential Information of the other party that the party holds; (iii) Customer will immediately cease all use of the Services; (iv) SureCam may disable all Customer and End User access to the Services; (v) If Customer terminates a Supply Agreement as permitted by Section 15(c), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and SureCam will refund to Customer any Fees paid in advance for Services that SureCam has not performed as of the effective date of termination; (vi) If SureCam terminates a Supply Agreement as permitted by Section 15(c), all Fees that would have become payable had the Agreement remained in effect until expiration of the then-current term will become immediately due and payable, and Customer will pay such Fees, together with all previously-accrued but not yet paid Fees and reimbursable expenses, on receipt of SureCam’s invoice therefor; and
(e) Surviving Terms.
(i) The provisions of Section 13 will survive according to their terms the termination or expiration of this agreement.
(ii) The provisions of Sections 1, 4, 6(a), 6(b), 6(c), 6(d), 9, 10(d), 10(e), 11, 12, 15, and 16 will survive indefinitely the termination or expiration of a Supply Agreement.
(a) Assignment. Neither party may assign any right or obligation under any Supply Agreement, except that either party may assign all, but not less than all, of its rights and obligations under the Supply Agreement to any affiliate of the party or to a purchaser or other successor to all or substantially all of the party’s business associated with the Supply Agreement, provided only that (i) the assignee possesses financial and technical wherewithal necessary to fully perform under the Supply Agreement, (ii) the assignor gives to the other party notice of the assignment on or before the time at which the assignment is effective, (iii) the assignment does not, by its nature, materially increase the other party’s obligations or reduce the other party’s rights, and (iv) the assignee assumes in writing all of the assignor’s rights and obligations under the Supply Agreement after the effective time of the assignment. Upon any permitted assignment by a party of its rights and obligations under a Supply Agreement, the assigning party will have no liability for acts or omissions of the assignee after the effective time of the assignment.
(b) Dispute Resolution.
(i) The parties will resolve any dispute arising out of, or related to, a Supply Agreement by arbitration. In every case:
(A) The language of the arbitration will be English;
(B) The parties will cause the arbitrator(s) to make written findings of law and fact;
(C) The parties will cause the arbitrator(s) to, to the maximum extent permitted by the applicable rules, permit participation in the arbitration by remote means, including, but not limited to, videoconference and teleconference and require that any remotely-participating party be placed on an equal footing (such as requiring that both parties present by remote means, even if one party is physically present at the seat of arbitration);
(D) The judgment and award of the arbitrator(s) may be entered in, and enforced by, any court of competent jurisdiction; and
(E) Each party will pay its own costs of participation in the arbitration and each party will pay half of the fees and expenses or the arbitrator(s) and any fees charged by the organization governing the arbitration.
(ii) In the case of Supply Agreements entered into in the United States, the arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association and will take place in St. Louis, Missouri.
(iii) In the case of Supply Agreements entered into outside of the United States, the arbitration will be conducted under the rules of the International Chamber of Commerce and will take place in London, England.
(iv) Nothing in this Section 16(b) will prevent any party from bringing an action in any court to address infringement, violation, or misappropriation by the other party of the party’s intellectual property rights or where the party seeks injunction or any other remedy enforceably available from an arbitrator.
(c) Continued Performance. Except in the case of a breach by Customer of Section 4 or the infringement, violation, or misappropriation by a party of the other party’s intellectual property rights, the parties will each continue performance of their obligations under the applicable Supply Agreement(s) during the pendency of any arbitration.
(d) Choice of Law.
(i) Any Supply Agreement entered into in the United States will be governed by and construed under the law of the State of Missouri without regard for the conflict of law provisions thereof. (ii) Any Supply Agreement entered into outside of the United States will be governed by and construed under the law of England and Wales without regard for the conflict of law provisions thereof. (iii) In any case, the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to any Supply Agreement.
(e) Notice. Any notice required or permitted to be given under a Supply Agreement must be in writing and will be effective (i) if given by personal delivery, upon such personal delivery, (ii) if given by nationally-recognized courier or mail service (in either case that has realtime or near-realtime tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service, or (iii) if by e-mail, when sent, provided that sender receives no indication within four hours after sending that the e-mail message failed to reach the receiver. If a receiver knowingly or intentionally renders an e-mail system incapable of receiving notice by that means, any notice sent by e-mail will nevertheless be effective upon sending. The addresses for notice are stated in each Sales Order. Either party may change its address for notice by notice to the other party.
(f) Successors; Assigns. The provisions of each Supply Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
(g) Cross-Default. Any breach by Customer of any Supply Agreement will be a breach of all other Supply Agreements to which Customer is a party.
(h) Counterparts Each Supply Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(i) Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in any Supply Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
(j) Severability. If a provision of a Supply Agreement or portion thereof is invalid or unenforceable under applicable law, it will be omitted from the Supply Agreement without invalidating the remainder of such provision or the remaining provisions of the Supply Agreement.
(k) Waiver. The waiver by either Party of any default or breach of any provision of a Supply Agreement will not constitute a waiver of any other or subsequent default or breach.
(l) Force Majeure. Neither party will be in breach of any Supply Agreement to the extent that its performance (other than payment obligations) is prevented or delayed by war, riot, severe weather, earthquake, volcanic eruption, act of terrorism, government action, failure of communications services or networks, or other condition or circumstance not reasonably within the control of the affected Party (“Force Majeure”), provided that the affected party gives notice to the other party of the condition or circumstances and re-commences performance promptly after the applicable condition or circumstance ceases.
(m) Waiver of Jury Trial. THE PARTIES RECOGNIZE THAT THE RIGHT TO A TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THAT RIGHT MAY BE WAIVED. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(n) Entire Agreement. The Supply Agreement(s) between SureCam and Customer constitute the entire agreement between the parties with respect to the subject matter of such Supply Agreement(s), and the Supply Agreement(s) expressly supersede and cancel any prior or contemporaneous representations, warranties, and/or agreements, whether oral or written, with respect to the subject matter of the Supply Agreement(s). A Supply Agreement may be amended only by a writing executed by the party against which enforcement is sought.
SCHEDULE 1 MAINTENANCE AND SUPPORT SERVICES
The following are the Maintenance and Support Services.
The services provided consist primarily of managing the operational integrity of the in-vehicle Equipment units and the hosted servers to which these report. Defined terms used in this Schedule, if not specifically defined in the Schedule, will have the meanings given to them in the applicable Supply Agreement. SureCam may suspend or limit Maintenance and Support Services where Customer is in breach of any Supply Agreement.
1. Support. SureCam will provide telephone and email access to SureCam’s support team during the following hours (“Business Hours”)
(a) United States: 8:30 am to 5:00 pm US CT, Monday through Friday excluding national holidays.
(b) Europe and Asia: 8:30 am to 5:00 pm GMT/BST, Monday through Friday excluding bank holidays.
2. Equipment Maintenance.
(a) Subject to the exclusions set forth below, SureCam will repair or replace purchased Equipment free of charge during the term of Supply Agreement. Equipment maintenance will not cover:
(i) Damage as a result of misuse or abuse by anyone other than SureCam; (ii) Nonconformity caused by modifications to Equipment by anyone other than SureCam and not approved in writing by SureCam or (iii) Nonconformity caused by errors or damage in installation.
3. Mobile Network. SureCam will provide SIM cards with appropriate data plan, provided that coverage or service is subject to the coverage and bandwidth supplied by the network provider.
(a) Equipment: Monitoring of Equipment is primarily the responsibility of the Customer, facilitated by the provision of email alerts from SureCam in the case of high g-force events.
(b) Vehicles: Vehicle monitoring is the responsibility of the Customer unless a monitoring service option has been purchased. In such cases a separate SLA relating to the monitoring service will be issued.
(c) Hosted software: Monitoring of hosted software is the responsibility of SureCam.
(d) Restore: In the event of a VTS Server failure, SureCam will restore the last good backup as at the time of the last successful backup on the Server.
5. Contact with Support Requests.
(a) Customer may contact SureCam’s support team by as follows for all issues regarding system support. Customer may also request installation/deinstallation of Equipment by e-mail. All email must include a full description of the issue and contact details in order that technicians can respond.
Support Contact Information – United States Support
Support Contact Information – Europe and Asia
Telephone: +44 (0)845 548 5447
(a) Customer will provide SureCam with a list of authorized Customer contacts and their email and phone numbers within two Business Days after execution of a Sales Order. In the event SureCam is unable to establish contact with the Customer’s designated contact persons SureCam reserves the right to take whatever action SureCam deems correct at that time.
(b) Customer will provide contact information for its authorized support contacts, including full names, titles, direct phone numbers and email addresses.
7. SLA Response Times.
(a) SureCam will use commercially reasonable efforts to respond to covered service impacting issues in at least 95% of cases each calendar month, provided the issues are reported through the SureCam email or telephone contact channels with the correct information requirements.
|Severity||Description||Acknowledgement (measured from initial report)||SureCam Resolution Effort Level|
|High||Video server not responsive, API not updating, firmware issues preventing Equipment from performing correctly.||Four hours within Business Hours||Continuous efforts during Business Hours until problem resolved or reduced to Medium or lower.|
|Medium||SD-card-related problem with camera, camera issue requiring site visit.||Four hours within Business Hours||Reports submitted by 2:00 pm on a Business Day: SD card replacement shipped same Business Day for next-Business-Day delivery|
Reports submitted after 2:00 pm on a Business Day: SD card shipped next Business Day for one-Business-Day arrival.
Where site visit is required, site visit scheduled within 72 hours.
|Low||Minor issues where a reasonable workaround is available, new feature requests.||Six hours within Business Hours.||Workaround communicated as soon as available. For new features, consideration for next release.|
(b) The above SLA Response times are subject to the following exclusions and limitations.
(i) If Customer is unable to make a vehicle available on a suggested time/date within the SLA scope the SLA Response time will be considered re-set. (ii) If Customer cancels an agreed appointment within the SLA scope the SLA Response time is not applicable to a rescheduled visit. (iii) Equipment damaged as a result of misuse or abuse is not covered. (iv) Excused Outages, as described below, are excluded from the above SLA Response times. (v) The GSM & GPRS networks are not covered by the SLA Response times
8. Software Maintenance. The Service is available during Business Hours. SureCam will use commercially reasonable efforts to minimize outages caused by Software Maintenance. Software Maintenance performed by SureCam will be classified as one of the following types.
(a) Normal (Planned) Maintenance will occur where possible outside of Business Hours. Customer‘s technical point of contact(s) will be provided 48 hours’ prior written notice (via email) of the maintenance to be performed.
(b) Urgent Maintenance will occur when a shorter notification period or alternate maintenance date is required. These windows are reserved for exceptional situations that require immediate repair to ensure Service Availability. SureCam applies critical service packs, hot fixes or re-configurations immediately on their release. This urgency precludes the possibility of advance warning and the scheduling of related down time to coincide with times of low usage. This may incur short periods of down time for the installation, and possibly require system restarts. To the extent possible, Customer’s primary technical point of contact will be provided written (via email) or verbal notification.
9. Installation. Customer will install the Equipment in compliance with the SureCam Installation Manual which can be made available on request. Special requests for installation support must be in writing to the Support email address or by formal written notification. Customer may engage SureCam or a third-party installer to provide installation under a separate Sales Order.
10. Calibration and Commissioning. Prior to distribution, all units will be set current firmware with pre-defined settings at the point of manufacturer. A Database will be held by SureCam of Device ID, Installed Registration, Project name, Project ID.
11. APN Routing. SureCam will route the vehicles’ data traffic from the mobile network operator via their chosen Access Point Node (APN) to the video server through the Internet.
12. API Data Transfer. Where an API integration has been purchased, SureCam will maintain the Service’s ability to receive and process data, provided that the data feeds meet the specifications of the API. Customer will be responsible for the use and integration of that data.
13. Account Manager.
(a) The SureCam account manager will be responsible for the ongoing management of the account. This will be the primary point of contact for all Customer interaction outside of routine service requests. The contact details will be detailed on the Sales Order.
(b) The Account Manager’s duties will include but not be limited to:
(i) Regular customer liaison. (ii) Addressing any complaints or escalated issues.
14. Additional Optional Services. All services not expressly described in this Schedule or a Sales Order will be deemed “extra services” and will be covered separately in the Sales Order. Should further services be required at any stage the Account Manager will be responsible for delivering and managing Customer requirements and expectations.
1. Lease Term and Payments. SureCam leases to Customer, and Customer leases from SureCam, the equipment described on the applicable Sales Order upon the terms and conditions set forth in the applicable Supply Agreement and this Schedule 2. The lease payments and the term of the lease are as set forth in the Sales Order.
2. Payment. SureCam may invoice for Equipment rent as early as the first day of each calendar month (or, in the case of a first or last calendar month of a term, the applicable part thereof) and Customer will pay such rent on or before the last day of each such calendar month. Customer will pay such amounts by credit card or ACH transaction. Customer will provide to, and maintain with, SureCam an applicable means of payment and Customer authorizes SureCam to initiate such payment transactions.
3. Delivery and Acceptance. SureCam will use commercially reasonable efforts to deliver the Equipment on the date(s) set forth in the Sales Order. Acceptance of the Equipment by the Customer will be deemed to have occurred on the date of delivery.
4. Limited Warranty.
(a) SureCam warrants to Customer that the that, on delivery, the Equipment will conform in all material respects with its Documentation.
(b) If Customer gives notice to SureCam within a reasonable time after delivery that the Equipment does not comply with the warranty above and SureCam is given a reasonable opportunity to examine such Equipment and confirms that the issue is covered under warranty then, SureCam will, at its option, repair or replace the non-conforming Equipment.
(c) SureCam will not be liable for the Equipment’s failure to comply with the warranty as a result of any of the following events, in which case SureCam may charge the Customer the costs of parts and labor in any such event:
(i) Customer makes any further use of such Equipment after giving notice in as required above; (ii) The defect arises because Customer failed to follow SureCam’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Equipment or (if there are none) good trade practice regarding the same (iii) The defect arises as a result of SureCam following any drawing, design or Specification supplied by Customer; (iv) Customer alters or repairs such Equipment without the written consent of SureCam; and (v) The defect arises as a result of excess wear and tear, willful damage, negligence, or abnormal storage or working conditions.
(d) These conditions will apply to any repaired or replacement Equipment supplied by SureCam.
5. Title to Equipment.
(a) As between the parties, the Equipment will at all times be the sole and exclusive property of SureCam or SureCam’s assignee, and Customer will not have any rights or property interest therein except as stated in this Schedule 2.
(b) SureCam will be permitted to display notice of its ownership by affixing to the Equipment identifying stencil, plate, or any other indicia of ownership.
(a) Customer will use the Equipment solely in connection with Customer’s subscription to SureCam’s network-connected vehicle camera proprietary tracking system Service.
(b) Customer will not use, maintain, or store any Equipment improperly, carelessly, or in violation of a Supply Agreement any of the applicable law applicable to the use of such Equipment.
(c) Customer will operate the Equipment by competent and qualified personnel in the manner, and for the use, contemplated by its manufacturer and by each Supply Agreement.
7. Customer will be responsible for installation of the Equipment in accordance with instructions provided by SureCam unless the applicable Sales Order provides for installation by SureCam or a third party. Customer may elect to engage a third party to complete installation provided Customer remains responsible for such third party’s actions.
8. Maintenance and Repair.
(a) Customer will maintain the Equipment in good condition and working order at all times and will be responsible for normal wear and tear.
(b) Customer will be responsible for any repairs required due to the failure of Customer to properly operate, store, or otherwise manage the Equipment.
(a) Customer will, at its sole cost and expense, procure and maintain during the term of each Supply Agreement commercial general liability insurance (including broad-form contractual coverage) in amounts of not less than $500,000 per occurrence and $500,000 annual aggregate. Such policy will name SureCam as an additional insured.
(b) While the Equipment is in the possession or control of Customer, will at its own cost and expense, to keep the Equipment insured to protect all interests of the SureCam, against all risk of loss, theft, or damage from every cause whatsoever for not less than the current value of the Equipment.
(c) Customer will provide to SureCam one or more certificates of insurance evidencing above insurance
10. Loss, Theft, or Damage. Customer will be liable for any loss, theft, or damage to the Equipment, whether or not covered by insurance, and no such loss, theft, or damage will relieve Customer of its obligations. In the event of loss, theft, or damage to the Equipment in whole or in part, Customer will promptly so notify SureCam and, at SureCam’s option, will:
(a) Place Equipment in good condition and working order; or
(b) If SureCam determines that any Equipment is beyond repair, pay to the SureCam, within 30 days of such notification, an amount equal to the greater of (i) the retail value of the Equipment of the date of loss, depreciated on a five-year straight-line basis or (b) the fair market value of the Equipment as of the date of loss, theft, or damage.
(c) Termination of Lease. On termination of the applicable Supply Agreement for any reason, Customer will immediately pay to SureCam all of outstanding unpaid lease payments for the unexpired term of the Supply Agreement. Customer will promptly return all of the Equipment at its own expense to SureCam.
11. Assignment; Finance Lease.
(a) In addition to any other right of SureCam to assign any right or obligation under a Supply Agreement, SureCam reserves the right to assign some or all of its rights under any Supply Agreement such that the lease arrangement with respect to the Equipment is a “finance lease” as that term is defined by Article 2A of the Uniform Commercial Code. In such a case, the following disclosures apply.
(i) The identity of the person supplying the goods to the lessor is SureCam; (ii) Customer entitled under UCC Article 2A to the promises and warranties, including those of any third party, provided to the lessor by SureCam in connection with or as part of the contract by which the lessor acquired the goods or the right to possession and use of the goods; and (iii) Customer may communicate with SureCam and receive an accurate and complete statement of those promises and warranties, including any disclaimers and limitations of them or of remedies.
(b) Upon assignment and/or other measures to create the finance lease in favor of the finance lessor, per UCC Sec. 2A-407:
(i) Customer’s promises under the lease contract become irrevocable and independent; (ii) Such promises are effective and enforceable between Customer and the lessor, and by or against third parties including assignees of the parties, and (iii) The lease arrangement is not subject to cancellation, termination, modification, repudiation, excuse, or substitution by Customer without the consent of the finance lessor.