TERMS AND CONDITIONS OF SALE AND SERVICE
BY AGREEING TO A QUOTE OR OTHER RELATED DOCUMENT (“QUOTE”) THAT REFERENCES THE FOLLOWING TERMS (THESE “TERMS”) OR BY DELIVERING AN ORDER FOR THE HARDWARE (“HARDWARE PRODUCTS”) OR SERVICES (TOGETHER WITH ANY RELATED SOFTWARE THE “SERVICES PRODUCTS”) IDENTIFIED IN THE QUOTE, THE CUSTOMER IDENTIFIED IN THE QUOTE (“CUSTOMER”) AGREES WITH XSTREAM TRUCKING, INC. (“COMPANY”) TO THESE TERMS AND SUCH QUOTE (COLLECTIVELY, THE “AGREEMENT”). HARDWARE PRODUCTS AND SERVICES PRODUCTS ARE “PRODUCTS.”
IF THE PERSON ENTERING INTO THE AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PERSON REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF SUCH PERSON DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THE AGREEMENT, SUCH PERSON MUST NOT ACCEPT THE AGREEMENT AND CUSTOMER MAY NOT PURCHASE OR USE THE PRODUCTS.
Customer may not purchase or access the Products if Customer is a direct competitor of Company (as determined by Company in its sole discretion). In addition, Customer may not access any Product for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Agreement Terms. Company’s issuance of the Quote is expressly conditioned on Customer’s assent to these Terms and the other terms of the Agreement. Company hereby objects to the terms of any purchase order or similar document provided by Customer that are in addition to, or different from, the Agreement. Such additional or different terms will be of no force or effect and will not become part of the Agreement. If the terms of the Quote conflict with these Terms, such terms of the Quote will control.
2. Changes to Terms. Company may modify these Terms at any time, in its sole discretion, with respect to the Services Products, even if sold with Hardware Products. If Company does so, Company will inform Customer either by posting the modified Terms within the Services Products or through other communications with Customer, such as email. Customer should review these Terms whenever Company modifies them, because Customer’s continued use of the Services Products after such posting or other notice is deemed to be Customer’s agreement to be bound by the modified Terms. If Customer does not agree to be bound by the modified Terms, then Customer should so inform Company and immediately cease using the Services Products.
3. Quotes; Prices; Taxes; Payment. Customer agrees to purchase, or subscribe to, as applicable, the Products, in each case from Company according to the Agreement, for the prices (“Price”) indicated in the Quote. Unless otherwise stated in writing by Company, all Prices quoted expire 30 days after the date of a quote. All sales, use, excise or other tax, fee, or charge imposed by any government or public authority (national, state, local or other) applicable to the manufacture, sale, delivery, shipment or use of a Product (“Taxes”), but excluding income taxes payable by Company, shall be added to the Price and shall be paid by Customer. Customer shall pay, in U.S. dollars and within 30 days from date of invoice, all invoices issued under the Agreement. Interest on late payments shall accrue at the lesser of 1.5% per month or the highest amount permitted by applicable law. Customer shall pay all of Company’s costs and expenses (including reasonable attorneys’ fees) to enforce and preserve Company’s rights under this Section. Company may cease performance if Customer becomes delinquent in the payment.
4. Accounts. Customer will be provided administrator access to its account (each an “Account”), which will allow Customer to enable its employees and contractors (“Authorized Users”) to access Services Products. Customer shall be solely responsible for administering and protecting its Account. Customer agrees to keep Account login information, including usernames and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer is solely responsible for maintaining the confidentiality of Account login information. If Customer becomes aware that the security of any login information has been compromised, Customer shall immediately notify Company and de-activate such Account or Authorized User or change the affected login information.
5. Services Products Subscription Terms.
5.1 Grant. Subject to the other terms and conditions of the Agreement, Company grants Customer a non-sublicensable, non-exclusive, non-transferable subscription to use and access the Services Products solely for Customer’s internal business purposes, until the subscription term expires (and is not extended) or the earlier termination of the Agreement. Unless provided otherwise in the Quote, subscriptions to the Services Products are perpetual, until terminated as provided in these Terms. Customer may enable Authorized Users to access the Services Products. However, Authorized Users may only use the Services Products strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein. Customer is responsible and liable for any breach by an Authorized User of his or her obligations hereunder.
5.2 Restrictions. Customer agrees not to do any of the following without Company’s express prior written consent: (a) resell, white label, or reproduce the Services Products or any individual element of such Products, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any part of the Services Products; (b) access, tamper with, or use non-public areas of the Services Products, Company’s computer systems, or the technical delivery systems of Company’s providers; (c) attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication; (d) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect the Services Products; (e) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the Services Products to any third party; (f) unless permitted under applicable law, disassemble, decompile or reverse engineer the Services Products or any software embedded on a Hardware Product (“Firmware”), in whole or in part, or permit or authorize a third party to do so; (g) hack into, disable, disrupt, or access without authorization any part of the Services Products, or attempt any of the foregoing; (h) attempt to decipher, decompile, disassemble or reverse engineer any aspect of the Services Products; (i) use the Services Products for timesharing or service bureau purposes or otherwise for the benefit of a third party (j) impersonate or misrepresent an affiliation with any person or entity; (k) use or access the Services Products for any competitive purpose; (l) violate any applicable law or regulation; or (m) encourage or enable any other person or entity to do any of the foregoing. Company has the right to investigate violations of the Agreement or conduct that affects the Services Products. Company may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
5.3 Updates. Company may improve and update the Services Products including related software. Company may change or discontinue all or any part of the Services Products, at any time and without notice, at Company’s sole discretion. Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.
6. Lien. Until the Price and all other charges payable to Company hereunder have been received in full, Company hereby retains and Customer hereby grants to Company a purchase money security interest in the Products delivered to Customer and any proceeds therefrom. Company may repossess the Products until payment in full, and Customer agrees to make the Products available to Company, so that Company can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. Customer agrees to promptly execute all documents reasonably requested by Company to perfect and protect such security interest. If Customer fails promptly to execute such documents, Customer hereby appoints Company as Customer’s attorney-in-fact, for the sole purpose of executing such documents, which appointment shall be a power coupled with an interest and shall be irrevocable. For clarity, the foregoing security interest in the Products does not imply that Customer has any rights in the Services Products, other than the subscription rights expressly specified in these Terms.
7. Delivery and Installation.
7.1 Delivery. Quote delivery dates are estimates only. Customer’s sole remedy for Company’s failure to deliver per the Quote, in whole or in part, within 30 days of the agreed delivery date, is to cancel the undelivered quantity of such Quote. Company will select the shipping carrier. Each partial shipment shall be treated as a separate transaction and payment therefor shall be made accordingly. Delivery of Hardware Products hereunder shall be FCA (Incoterms 2020) Company’s manufacturing plant (“Hardware Delivery”). Subject to Sections 6 and 8, title and risk of loss for the Hardware Products shall pass to Customer upon Hardware Delivery. Delivery of Services Products hereunder shall be by Company providing Customer its Account login information (“Services Delivery”). All freight, insurance and other shipping expenses applicable to Hardware Delivery or Services Delivery (each “Delivery”) shall be paid by Customer.
7.2 Hardware Installation. Company will install all Hardware Products as provided in the Quote. If Customer nevertheless elects to install the Hardware Products, then Customer should have the requisite skills and understanding and, in any case, Customer is fully responsible for any such installation not performed by Company, including any resulting property damage, bodily injury, or death and such Product is not warranted by Company. The foregoing terms of this Section do not apply to the installation of Company’s “Carbon Connect” product; however, Company also has no liability for issues arising from Customer’s installation of such Product.
8. Acceptance. Any Product not properly rejected within 10 days after Delivery will be deemed accepted. To reject a Product, Customer must identify for Company during such period any nonconformities in the particular Product and request a “return materials authorization” (“RMA”) number and, for Hardware Products, within 10 days after receipt of the RMA number, return such rejected Product. Promptly after rejection and, for Hardware Product, receipt by Company of the properly rejected Product, Company shall, at its option and expense, either repair or replace such Products or cancel the Quote for such Products and refund any amounts paid by Customer for such items. Company shall pay the shipping charges back to Customer for properly rejected Products. Customer shall be responsible for all other shipping charges. The foregoing are Company’s sole and exclusive liability and Customer’s exclusive remedy for any failure to deliver on-time or conforming Products under the Quote.
9. Customer Data.
9.2 Vehicle Travel History. Customer understands that Services Products will record and transfer to Company data regarding including vehicle travel history, geolocation, vehicle identification information, and vehicle operating characteristics.
9.3 Ownership and Use. Customer Data is transmitted to Company’s system and is accessible through the Services Products. Customer owns all Customer Data, and Company will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Company may use the Customer Data, subject to the terms of the Agreement, to (a) perform its obligations and exercise its rights hereunder; (b) create data derived or inferred from the Customer Data (“Derived Data”); and (c) collect and use information related to Customer’s use of the Services Products (“Usage Data”). Company may use Derived Data and Usage Data to support, test, develop, improve and enhance its products and services and the products and services of its affiliates and service providers. Company also may use and disclose Derived Data that has been de-identified, anonymized, and/or aggregated and Usage Data, for any legitimate business purposes. Usage Data and Derived Data are not Customer Data; Company owns all Usage Data and Derived Data. Customer may receive a copy of Customer Data at any time through the export features in the Services Products. Customer acknowledges that some information may not be exportable via the Services Product. If the Agreement terminates or expires with respect to a Services Product, then Customer may request, pursuant to Section 14.2, that its Customer Data be deleted. For clarity, such deletion will not affect Company’s rights in any Usage Data or Derived Data that may have been created using such Customer Data.
9.4 Customer Data Representation and Warranty. Customer represents and warrants that: (a) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for Company to collect, use, and share Customer Data in accordance with these Terms and (bi) no Customer Data infringes upon or violates any other party’s intellectual property rights, privacy, publicity or other proprietary rights. Customer agrees to indemnify, defend and hold harmless Company and, if relevant, its subprocessors, against any liabilities, damages, demands, losses, claims, costs, fees (including legal fees), and expenses in connection with any third-party legal proceeding to the extent arising from the capture, storage or use of Customer Data as permitted under the Agreement, including this Section, or any act or omission of Customer related to any Customer Data.
9.5 Data Processing Agreement. Each of Company and Customer agree to provide additional commitments regarding Customer Data protections if requested by the other party in accordance with applicable law. Such additional terms shall be set forth in a separate mutually acceptable “Data Processing Agreement.”
10. Limited Warranties.
10.1 Hardware Product Warranties. Company warrants solely to the original Hardware Product end user purchaser (the “Hardware Warranty”) that each Hardware Product (a) upon Delivery, is free from material defects in materials and workmanship, and (b) will, for a period of 2 years from Delivery, materially conform to Company’s specifications for such Hardware Product. Company’s sole and exclusive liability and Customer’s exclusive remedy if a Hardware Product does not conform to the Hardware Warranty is to either (i) repair or replace such nonconforming Hardware Product within reasonable time or, at Company’s election; (ii) retain such Hardware Product and refund to Customer the amounts paid for such Hardware Product. To obtain such remedy, Customer must give written notice to Company within 30 days after discovery of the defect (including a description of the defect) and return such Hardware Product to Company pursuant to its RMA procedures.
10.2 Services Product Warranties. Company warrants solely to the original Services Product end user customer (“Services Warranty”) that each Services Product will materially conform to Company’s specifications for such Services Product. Company’s sole and exclusive liability and Customer’s exclusive remedy if a Services Product does not conform to the Services Warranty is to either (a) modify the Services Product to conform to such warranty or, at Company’s election; (b) refund to Customer any prepaid and unused Services Fees for such Services Product and thereupon Customer’s subscription to such Services Product shall terminate. To obtain such remedy, Customer must give written notice to Company within 30 days after discovery of the defect, including a description of the defect.
10.3 Exclusions. The foregoing warranties do not apply to any Product: (a) in other than its original condition, ordinary wear and tear excepted; (b) any defect caused by modifications made to, or maintenance performed on, such Product by Customer or any third party; (c) which is a Hardware Product (other than Carbon Connect) not installed by Company; or (d) that Company determines has, by Customer or otherwise, been subjected to operating or environmental conditions in excess of limits established in the applicable specifications, or otherwise has been subjected to accident, mishandling, damage, misuse, neglect, or improper or unauthorized installation or repair. THE WARRANTIES IN THIS SECTION ARE THE ONLY WARRANTIES MADE BY COMPANY WITH RESPECT TO THE PRODUCTS AND ARE NON-TRANSFERABLE. COMPANY DOES NOT WARRANT THAT THE SERVICES PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF ANY PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES AND LIABILITIES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING AS TO MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
11. Proprietary Rights.
11.1 Generally. As between Company and Customer, Company retains all intellectual property rights in and to the Products, including the sole right to manufacture the Hardware Products and the right to modify, reproduce, distribute and display the Services Products. Except as expressly stated herein, the sale of the Hardware Products or the grant of subscriptions to the Services Products to Customer, will not be deemed to confer upon Customer any right, interest or license in any intellectual property rights of Company. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Product or related materials. Except for the express rights granted herein, Company does not grant any other rights or subscriptions, whether express or implied, to any Products, Firmware, services, technology or intellectual property rights. If Customer notifies Company of any bugs or errors that Customer identifies in any of the Products or otherwise provides suggestions, comments, and other feedback (individually and collectively, “Feedback”), then Customer grants Company a perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use and exploit the Feedback without restriction.
11.2 Firmware. Company grants Customer a non-sublicensable, non-exclusive, license to use any Firmware solely as part of the related Hardware Product and as necessary to use such Hardware Product for its intended purpose. Company retains ownership of the Firmware, including all intellectual property rights therein, even though Customer owns the Hardware Product on which the Firmware is embedded. Such retention of rights does not preclude Customer from selling Hardware Products with the Firmware embedded therein.
12. Confidentiality. The terms of the Agreement, the Services Products and Firmware (including the structure and features of the foregoing), Usage Data, Derived Data, and any other non-public technical, business or financial information provided by Company, shall be deemed Company’s confidential information. Customer will not use or disclose such information for any purpose except as necessary to use the Products, and will maintain such information with at least reasonable care. Customer will not reverse engineer, copy, modify, or otherwise use Products in any manner other than as permitted hereunder and for internal business purposes only.
13. Customer Indemnity. Customer shall indemnify and hold harmless Company from and against any and all third party claims, liability, damages, costs or expenses (including attorneys’ fees) arising out of Customer’s use of Products.
14.1 Termination. Either party may terminate the Agreement (a) for material breach by the other party that is not remedied within 30 days (10 days for non-payment) after written notice, or (b) if the other party ceases to do business in the ordinary course or is unable to pay its debts generally when due. In addition, either party may terminate the Agreement with respect to any or all Services Products, with or without cause, on at least 30 days’ prior notice.
14.2 Effect of Termination. Upon the termination or expiration of the Agreement for a Services Product or the Agreement in its entirety, for any reason, (a) except as provided in this Section, all rights granted hereunder in the affected Services Products immediately terminate; and (b) Company and its licensors shall have no obligation to maintain any Customer Data stored in any affected Product. The expiration or termination of the Agreement will not (i) affect Customer’s obligation to pay all amounts due to Company accrued prior to termination (or, where applicable, after termination), nor (ii) entitle Customer to reimbursement or refund of any amounts already paid to Company. Upon any termination or expiration of the Agreement, the following Sections of these Terms will survive: 3 (Quotes; Prices; Taxes; Payment), 6 (Lien), 9 (Customer Data), 11 (Proprietary Rights), 12 (Confidentiality), 13 (Customer Indemnity) 14 (Termination), 15 (Limitation of Liability) and 18 (Miscellaneous). At Customer’s request, and subject to Company’s data retention and backup policies, Company shall delete and remove any Customer Data on any Services Product.
15. Limitation of Liability. COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT AND/OR PROVISION OF PRODUCTS, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE PRODUCTS GIVING RISE TO THE SPECIFIC LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR COSTS OF COVER OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (INCLUDING LOST PROFITS), HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE) AND WHETHER OR NOT COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. ALL LIMITATIONS IN THE AGREEMENT WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
16. Insurance. During Customer’s use of any Products and for three years thereafter, Customer will obtain and maintain all necessary or commercially reasonable insurance, including without limitation, commercial general liability, worker’s compensation, product liability, and auto (in an amount not less than U.S. $5,000,000 per accident). All insurance will be primary, non-contributory and will include a waiver of subrogation in favor of Company. Upon request, Customer will provide Company evidence of such required insurance.
17. Publicity. Customer hereby grants Company permission to use Customer’s name and logo to list Customer as a customer on Company’s website, customer lists, and marketing materials. Company will not use Customer’s name, trademarks, or logos in any other way without Customer’s prior consent.
18. Miscellaneous. Customer agrees to comply with all applicable laws and regulations, including transportation safety. Neither party will be in default for any delay or failure of its performance under the Agreement (except with regard to Customer’s payment obligations) if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or failures in transportation or communications. Customer agrees not to use the Products in connection with any contract with the U.S. government or any of its agencies, departments, or other authorities. The Products are not designed, intended, authorized, or warranted for use or inclusion in nuclear applications or in life endangering applications where failure or inaccuracy might cause death or personal injury. The Agreement is the result of negotiations among, and has been reviewed by, Company and Customer. Accordingly, the Agreement shall be deemed to be the product of both parties, and no ambiguity shall be construed in favor of, or against, either party. Customer may not remove or export from the United States or allow the export or re-export of the Products or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Any required notice will be given in writing at the applicable address specified in the Quote (as such address may be updated by a party). Neither the Agreement nor any right thereunder may be assigned or transferred by Customer without the written consent of Company. Company may assign the Agreement without restriction. Any attempted assignment in violation of the foregoing is void. The Agreement will be governed by the laws of the State of California, without reference to conflicts of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties agree that any dispute relating to the Agreement or the Products shall be subject to the exclusive jurisdiction and venue of the state and federal courts with jurisdiction over Redwood City, California. The parties hereby consent to jurisdiction and venue in such courts and waive any objections thereto. Any claim under the Agreement shall be brought within 1 year after accrual thereof. In any legal proceeding between the parties arising from the Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding. The Agreement is the sole agreement between the parties concerning the subject matter thereof, and supersedes all prior or contemporaneous agreements with respect to such matter. Except as provided therein, the Agreement may only be amended by a writing signed by both parties. Waiver or forbearance to enforce any term shall not constitute a waiver as to any subsequent breach of the same term or a waiver of any other term of the Agreement. The words “include” and “including” and words of similar import when used in the Agreement shall not be construed to be limiting or exclusive. For purposes of the Agreement, the word “will” shall be equivalent in meaning to the word “shall,” both of which describe an act or forbearance which is mandatory under the Agreement. Except as provided in a particular context, the word “or” when used in the Agreement may mean each as well as all alternatives. Headings in these Terms are for convenience of reference only and are not part of the substance hereof.
Registered Office: XStream Trucking Inc., 899 Arguello St., Ste. A, Redwood City, CA 94063, EIN: 474545208