This ICE Cobotics Master Subscription Service Agreement is effective as of the Effective Date, and is made between ICE Robotics LLC, dba ICE Cobotics, a company incorporated in the state of Michigan, with a place of business at 101 E Roosevelt Ave, Zeeland, Michigan 49464, the United States of America (“ICE Cobotics”) and Customer as defined in the Order. Each of ICE Cobotics and Customer, a “Party”, and collectively “Parties”.
1.1. The terms and conditions set out in this Agreement together with any Order (collectively, this “Agreement”), shall govern Customer’s subscription for, access to and/or use of the Subscription Services described in each Order.
Unless the context otherwise requires, the following terms shall have the following meanings:
2.1 “Cobot” means the ICE Cobotics’ autonomous cleaning machine and related equipment listed in the Order. Cobot is an autonomous floor cleaning machine with autonomous navigation capability, onboard user interface and remote fleet management.
2.2 “Customer Facilities” means the locations where the Customer operates the Product provided that such locations must be within the country where the Product is delivered to the Customer by ICE Cobotics.
2.3 “Delivery Location” refers to the location specified in the Order where the Products will be delivered.
2.4 “Documentation” refers to all documentation, materials, or information, technical or otherwise, relating or used with respect to the Products or Subscription Services, including specifications, operating manuals, user instructions, and technical literature in any form in each case provided or made available to Customer by ICE Cobotics from time to time.
2.5 “Intelligent Machine” means the ICE Cobotics’ intelligent cleaning machines and related equipment (other than a Cobot) listed in the Order.
2.6. “Order” means any order to subscribe for Subscription Services accepted by ICE Cobotics and Customer by email confirmation or other online customer portal service provided by ICE Cobotics from time to time.
2.7 “Product” means a Cobot or Intelligent Machine (as the case may be) in connection with a Subscription Service by Customer listed in the Order.
2.8 “Subscription Term” means the subscription term for the Subscription Services for each Order.
3.1. Subscription Services.
ICE Cobotics will provide Customer with (i) use of the Product, (ii) i-SYNERGY Services (as defined in Section 3.5), (iii) repairs and replacement of parts, as needed, (iv) customer support, and (v) in the case of Cobot only as the Product, key consumables (i.e. brushes, squeegees) (collectively referred as “Subscription Services”) on a subscription basis during the Subscription Term.
3.2. Delivery.
ICE Cobotics will deliver the specified number of Products and other items as specified in the Order to the Delivery Location, at which time risk of loss will pass to Customer, and make the Documentation available to Customer on or before the delivery date. The Subscription Services will be available for activation after delivery of the Products to the Delivery Location.
3.3. Changes to the Subscription Services and Documentation.
ICE Cobotics may make changes or updates to the Subscription Services or the Documentation at any time in its discretion. Customer’s continued use of the Subscription Services after such changes are made will be considered Customer’s acceptance of such changes.
3.4. Third-Party Use. Customer may only operate, use or access the Products at the Customer Facilities and in the country in which ICE Cobotics delivered the Products to Customer solely for Customer’s direct beneficial business purposes. If Customer allows any person or entity to operate, use or access the Subscription Services, Customer shall be solely responsible for ensuring that such person or entity complies with the terms of this Agreement and with all applicable laws and any breach by such third party of the terms of this Agreement will be deemed a breach by Customer.
3.5. i-SYNERGY Services. “i-SYNERGY Services” refer to services provided by i-SYNERGY, which is a cloud-based fleet management and analytics platform used by ICE Cobotics to manage and monitor performance of the Products and for providing updates to the onboard user interface and navigation software, as well as for storing and sharing mapping data across the Products within the same end user’s fleet of Products.
3.6. Sensor Data, Usage Data, Components Data.
Notwithstanding anything to the contrary, ICE Cobotics and its partners and service providers shall have the right to collect and analyze data and other information including (i) navigation related sensor data (such as cleaning routes, environmental data and images collected by the autonomous navigational sensors which would subsequently be converted into 2D point cloud maps), (ii) Cobot’s usage data (such as the total floor area cleaned, location, operating run-time), (iii) incident data (such as incident logs, warning messages), (iv) machine configuration parameters and (v) components data (such as logs of electronic components, data related to usage, depletion or detection of malfunctioning for components) relating to the provision, use and performance of various aspects of the Cobots and related systems and technologies (collectively, “Cobot Operating Data”). Cobot Operating Data does not include data and images which could be used to conduct facial recognition or read text signage. All data is encrypted before it is stored on the Cobots or transferred to cloud through ICE Cobotics’ cellular subscription and approved onboard cellular modem with access restrictions. For clarity, the Cobot Operating Data is not Customer Data. As between ICE Cobotics and Customer, ICE Cobotics owns all right, title, and interest, including all intellectual property rights, in and to (a) the Cobot Operating Data and (b) any improvements to any Cobots, Subscription Services or other products and services made as a result of ICE Cobotics’ use, processing, or generation of Customer Data or Cobot Operating Data.
3.7. Interruptions and Suspension.
All or part of the Subscription Services (such as i-SYNERGY Services) may be interrupted or suspended (i) in order for ICE Cobotics to perform any scheduled or emergency maintenance of any equipment ICE Cobotics used for providing the Subscription Services, (ii) during necessary software updates to the Product or i-SYNERGY Services; (iii) if there is any breakdown or malfunctioning of equipment ICE Cobotics used for providing the Subscription Services, or (iv) if Customer is in violation of any of the terms of this Agreement. Save for emergency situations, in the case of situations described in (i) to (iii), ICE Cobotics will make commercially reasonable efforts to notify Customer of the potential interruption or suspension of Subscription Services.
4.1. Customer Data. Customer retains all right, title, and interest, including all intellectual property rights, in and to the Customer Data. “Customer Data” means any data or information in electronic form submitted by Customer or individual end users (“Users”) to ICE Cobotics or the Products deployed at a Customer Facilities, and transmitted to ICE Cobotics or its affiliates or its third party supplier or service provider or otherwise made available to ICE Cobotics.
4.2. Customer Data License. Customer hereby grants ICE Cobotics and ICE Cobotics’ partners and service providers a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) for the purpose of performing its obligations under this Agreement, (b) for purposes of meeting any obligations to comply with any applicable law, regulation or guidelines by any legal, regulatory, governmental, tax, law enforcement authorities, judgment or court order, and (c) for facilitating communication between ICE Cobotics and Customers. In providing the Services, ICE Cobotics will handle personal information relating to Users in accordance with its Privacy Policy found at its official website at www.icecobotics.com.
5.1. Fees and invoice. The fees and pricing for the Subscription Services is set forth in the applicable Order. Customer shall pay the fees set forth in the Order (the “Fees”) in accordance with the terms set out in this Agreement. Customer shall not be entitled to any refund of prepaid amount.
5.2. Order and Payment Terms. Customer may place Order or Orders with ICE during the Term. Upon acceptance of the Order by ICE Cobotics, ICE Cobotics shall provide Customer an invoice detailing the specific Subscription Services provided and the location where the Product was delivered. Within 30 days from receipt of a valid invoice by Customer, Customer shall pay to ICE Cobotics the Fees as detailed by the applicable invoices. The Fees do not include, and Customer is responsible for paying all sales taxes, value-added taxes or any other use or excise tax.
5.3. Failure to pay. If Customer fails to pay any amount due under this Agreement according to the payment terms of the Order, such failure to pay will constitute a material breach of this Agreement. On any overdue amounts, ICE Cobotics may charge Customer interest at a monthly rate equal to the lesser of 1.5% per month or the maximum rate allowable under the applicable law from the due date thereof until payment in full, together with collection costs such as reasonable attorney’s fees. Upon a default, ICE Cobotics may, without limiting other remedies hereunder or by law, choose to deactivate any or all of the Subscription Services and/or repossess any or all of the Products, spare parts and consumables.
6.1. Term. This Agreement shall commence on the Effective Date, and shall remain in effect until the date that is three years after the Effective Date (the “Term”), except where there is any Order which remains outstanding and its applicable subscription term has not been expired as at the end of the Term, the terms of this Agreement shall still apply to govern such Order as if this Agreement has not been expired until the subscription term applicable to the Order is expired or terminated.
6.2. Effect of Expiration. If the Subscription Services are not renewed upon expiration of the Subscription Term, Customer shall return the Product to ICE Cobotics promptly in accordance with Section 7.3.
6.3. Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survives termination or expiration, including Sections 3.6 (Sensor Data, Usage Data, Components Data), 4 (Data Usage), 13.2 (Confidentiality), 10 (Indemnification), 11 (Limitation of Liability), 12 (Proprietary Rights), and 13.5 (Governing Law) of this Agreement.
7.1 Use Requirements.
(a) Customer agrees to use the Product solely for indoor floor cleaning purpose and in compliance with this Agreement and the Documentation. In particular, the Cobot is designed for daily floor washing purpose and not for floor stripping or other heavy duty deep cleaning application. Without limiting the foregoing, Customer shall: (i) implement reasonable safety precautions during the use and operation of the Product, including as directed by ICE Cobotics; (ii) ensure that the Products are properly used, maintained and stored indoors; (iii) ensure that the cameras, sensors and other external components of each Cobot used for autonomous navigation are clean and undamaged before operating such Cobot, and immediately cease using any damaged or defective Cobot; (iv) ensure that the Products are used solely by persons having the necessary skills and training required to do so safely; (v) use the Products in accordance with all applicable legal and regulatory requirement; and (vi) acknowledge and note that the Cobot has been installed with audible and visual signals in order to alert of its presence during operations, and as such any adjustment by Customer (including without limitation lowering the manufacturer’s pre-set volume level for audible alerts) may affect the effectiveness of these safety systems. Additionally, Customer agrees the Products will be used for business purposes only.
(b) Customer is responsible for meeting all technical requirements set forth in the Documentation, including as they relate to the Customer Facilities and Customer’s infrastructure. Without limiting the immediately foregoing sentence, Customer understands that it is responsible for ensuring that the Products used in connection with the Subscription Services have access to Internet and cellular network connection. ICE Cobotics makes no warranties regarding Internet or cellular connection.
7.2 Use Restrictions. Customer shall not, and shall not allow any third party to, directly or indirectly:
(a) operate the Product outside of the permitted use indicated by ICE Cobotics or the Documentation;
(b) modify, disassemble, tamper with, damage or misuse the Product, systems, software or Subscription Services;
(c) use outdoor or in an inappropriate environment not within the operational domain of the Product (including without limitation, exposure to excessive moisture, heat, humidity, water or use in locations with steps changes in gradient or low height physical hazards such as pools);
(d) combine, operate or use of a Product with software, hardware, or other technology not provided by ICE Cobotics and approved for use in connection with the Product;
(e) fail to use or implement corrections, enhancements, modifications, or upgrades provided to Customer by ICE Cobotics;
(f) modify, improve, reverse engineer, duplicate, reproduce, or otherwise copy the Product, system, software, Subscription Services or Documentation (in whole or in part);
(g) license, sell, export, assign, transfer, lease, time-share, loan, or distribute any Product or Subscription Services to a third party;
(h) remove, modify, deface, or replace any of ICE Cobotics’ or any third party’s proprietary notices or marks which appear on, are affixed to, or are used in connection with a Product; or (i) subject a Product to any lien or other security interest.
7.3 Product Returns. Upon termination or in case of technical support requiring a return of the Product for inspection, Customer is responsible for packaging returned Product in a manner that protects them against loss and damage during transit. Customer will ensure that the condition of all Products returned to ICE Cobotics is substantially similar to the condition of such Products when received by Customer, excluding ordinary wear and tear.
7.4 Damage to the Product.
During any period of time that a Product is within Customer’s possession, control, or care (which includes the period of transit from the Customer Facilities to ICE Cobotics), Customer agrees to protect the Product and shall promptly notify ICE Cobotics of any damage to the Product. Customer agrees to pay all repairs, damages and/or loss of the Product due to its negligence or breach of its obligations under this Agreement.
8.1 Technical Support. During the Subscription Term, ICE Cobotics will provide Customer with repairs and technical support for the Subscription Services in accordance with Sections 8.2 to 8.5 and 8.7.
8.2 ICE Cobotics will provide Product repairs, replacement parts and labor, as needed, during the Subscription Term. Repairs service may be carried out by way of onsite visit, remote instruction or sending of the Product back to ICE Cobotics for service.
8.3 Upon discovery of a material defect in a Product, or issues with i-SYNERGY Services, Customer may submit a claim to ICE Cobotics. Customer may be asked to provide ICE Cobotics with details of malfunctions and of the circumstances under which they occurred.
8.4 ICE Cobotics may, in its sole discretion, either repair or replace the Product or the applicable part thereof. In the event of a replacement, ICE Cobotics, in its sole discretion, may perform such replacement with a fully reconditioned unit of the same Product or part.
8.5 Upon termination or in case of technical support requiring a return of the Product for inspection, Customer is responsible for packaging returned Product in a manner that protects them against loss and damage during transit.
8.6 For each order of consumables by Customer, ICE Cobotics will ship the bulk consumables orders to a single distribution location as agreed in advance with Customer, at which point Customer will be responsible for further transporting relevant consumables to where the locations of the Products are which require such consumables.
8.7 Customer shall cooperate with, and provide all reasonable assistance as may be required by, ICE Cobotics to facilitate the provision of the repair and technical services to Customer.
9.1 Customer Warranties.
Customer represents and warrants that (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (ii) it has the full right and authority to collect and provide to ICE Cobotics and its partners and service providers the Customer Data and to grant the licenses and rights set forth in this Agreement; (iii) any and all collection, use, storage and transfer of Customer Data shall be compliant and in accordance with all applicable laws and regulations and (iv) that the use of the Customer Data in accordance with this Agreement will not breach any applicable law, statute, or regulation or infringe on any copyright, trademark, trade secret, patent, right of publicity, privacy right or other intellectual property right or proprietary right of any third party.
10.1 Indemnification by ICE Cobotics. ICE Cobotics shall indemnify, defend and hold Customer harmless from and against any and all third-party claims, damages, expenses, losses or other liabilities whatsoever and all reasonable attorneys’ fees and other associated reasonable costs brought against Customer arising out of or relating to (i) bodily injuries or property damage to the extent caused solely by the defects or malfunctioning of the Product, (ii) any willful misconduct of ICE Cobotics; and (iii) infringement of a third party’s intellectual property rights arising out of Customer’s use of the Subscription Services, excluding in any of the foregoing cases described in (i) to (iii), any claims attributable to any negligence, willful misconduct, or breach of obligations hereunder by Customer or any third party.
10.2 Indemnification by Customer. Customer shall indemnify, defend and hold ICE Cobotics and its officers, directors, employees, agents and stockholders (each an “ICE Cobotics Indemnitee”), harmless from and against any damages, expenses, losses, other liabilities or all third-party claims against ICE Cobotics Indemnitees arising out of, relating to or caused by (a) any negligence or willful misconduct of Customer or Customer’s contractors; (b) Customer’s breach of its obligations under this Agreement; or (c) claims by customers of Customer. In case of a breach of the indemnification obligation by Customer, ICE Cobotics may, without limiting other remedies hereunder or by law, choose to deactivate any or all of the Subscription Services and/or repossess any or all of the Products, spare parts and consumables.
11.1 Disclaimer of Damages.
To the fullest extent permitted by applicable law, but except as it pertains to a Party’s indemnity obligations, in no event shall either Party be liable for any consequential, incidental, special, punitive, or exemplary damages arising out of or related to the subject matter of this Agreement, including but not limited to lost profits or loss of business, even if a Party is apprised of the likelihood of such damages occurring.
11.2 Cap on Liability.
Under no circumstances will ICE Cobotics’ total liability of all kinds arising out of or related to the subject matter of this Agreement, regardless of the forum and regardless of whether any action or claim based on contract, tort, or otherwise, exceed US$1 million per incident of occurrence of any claim and in aggregate of any and all claims the total amount of US$2 million.
12.1 Retention of Rights.Customer acknowledges and agrees that, as between ICE Cobotics and Customer, ICE Cobotics is the sole and exclusive owner of all right, title and interest in and to the Product, i-SYNERGY Services, and Documentation, including without limitation, any and all goodwill related thereto or resulting therefrom. Customer shall not, either directly or indirectly, do or cause anything to be done that would challenge ICE Cobotics’ sole and exclusive right and title thereto. Nothing in this Agreement shall be deemed to cause the transfer or assignment of any right, title, or interest, including any intellectual property rights, in or to a Product, i-SYNERGY Services or Documentation.
12.2 Intellectual Property Infringement.
If any Subscription Services is, or in ICE Cobotics’ opinion is likely to be, held to infringe the intellectual property rights of a third party, then ICE Cobotics would at its own expenses and sole discretion provide a remedy.
12.3 Feedback.
ICE Cobotics will own all right, title and interest, including all intellectual property rights, in and to any suggestions, comments, or feedback provided by Customer that relates to the Subscription Services (including bug reports and enhancement requests), and Customer hereby assigns such rights, title, and interest to ICE Cobotics. Customer acknowledges that suggestions, comments and feedback may be used without restriction by, and are the confidential information of, ICE Cobotics.
13.1. Compliance.
Each Party will perform its obligations under this Agreement in compliance with all applicable laws, including international, national, state, and local laws and regulations.
13.2. Confidentiality.
Customer acknowledges that the terms of this Agreement are regarded as confidential information. Customer shall maintain confidentiality of all such confidential information, and without obtaining the written consent of ICE Cobotics, it shall not disclose any relevant confidential information to any third party, except for the information that: (a) is or will be in the public domain (other than through the Customer’s unauthorized disclosure); or (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other governmental authorities; or (c) is required to be disclosed by Customer to its legal counsel or financial advisers regarding the transaction contemplated hereunder, provided that such legal counsel or financial advisers shall be bound by the confidentiality obligations similar to those set forth in this Section. This Section shall survive the termination of this Agreement for any reason.
13.3. Assignment.
No rights or obligations of Customer arising out of this Agreement or any other contract between ICE Cobotics and Customer may be assigned without the prior written consent of ICE Cobotics. Any such assignment without ICE Cobotics’ prior written consent shall be null and void. ICE Cobotics may assign its rights and obligations under this Agreement by written notice to Customer.
13.4. Notices.
All notices hereunder shall be in writing and given by electronic mail, registered or certified mail, postage and registration fees prepaid, return receipt requested, or by overnight mail by a nationally recognized courier service, and shall be deemed given when mailed to a Party at the address set forth in the Order.
13.5. Governing Law.
This Agreement shall be governed by the laws of the State of California without regard to principles of conflicts of law.
13.6. Entire Agreement. This Agreement contains the Parties’ entire understanding relating to the subject matter thereof, supersede all prior or contemporaneous agreements between the Parties relating to such subject matter. If there are any conflicts or inconsistencies between the terms and conditions set out herein and the terms of the Order, the terms of the Order shall control, followed by these terms and conditions.
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