ICE COBOTICS PURCHASE AND END USER LICENSE AGREEMENT
This ICE Cobotics Purchase and End User License Agreement is effective as of the signing date of the Order (“Effective Date”) by, 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 the Customer. Each of ICE Cobotics and Customer, a “Party”, and collectively “Parties”.
1.1. The terms and conditions set out in this Agreement together with the Order (collectively, this “Agreement”), shall govern Customer’s purchase of the Product described in the Order.
2.1 Unless the context otherwise requires, the following terms shall have the following meanings in this Agreement:
“Cobot” or “Product” means the ICE Cobotics’ autonomous cleaning machine and related equipment listed in the Order, with the features described in Section 5.
“Customer” means the customer as named in the Order.
“Customer Facilities” means the locations where the Customer operates the Products provided that such locations must be within the country where the Product is delivered to the Customer by ICE Cobotics.
“Delivery Location” refers to the location specified in the Order where the Products will be delivered.
“Documentation” refers to all documentation, materials or information, technical or otherwise, relating or used with respect to the Products, 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.
“Order” means the order to purchase the Product accepted by ICE Cobotics and Customer by signing of the prescribed form of order, email confirmation or other online customer portal service as may be provided by ICE Cobotics from time to time.
3. Delivery of Products.
3.1. Products and Delivery. In accordance with the Order accepted by ICE Cobotics, 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. Title to the Products shall only pass to Customer upon full payment of the purchase price for the Products.
3.2. Third-Party Use. If Customer allows any person or entity to operate, use or access the Product, 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.
4. Fees and Payment Terms
4.1. Fees and invoice. 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.
4.2. Order and Payment Terms. Upon acceptance of the Order by ICE Cobotics, ICE Cobotics shall provide Customer an invoice detailing the specific Product provided and the location where the Product was delivered. Within thirty (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. 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. Upon a default, ICE Cobotics may, without limiting other remedies hereunder or by law, choose to repossess (to the extent the purchase price for the Products has not been paid in full) any or all of the Products, spare parts and consumables.
5.1 Special Features of Cobot. Cobot is an autonomous floor cleaning machine with scrubbing and vacuuming functions, and onboard user interface that can be used to select required modes of cleaning operation. Cobot is equipped with autonomous navigation capability which allows the Cobot to navigate and clean along pre-specified routes by Customer.
5.2 i-SYNERGY Services. During the Warranty Period as defined in Section 7.1, ICE Cobotics will provide i-SYNERGY Services to Customer in connection with the usage of the Cobi, subject to the terms and conditions set out in this Agreement including the additional terms and conditions set out in Appendix A.
6. Customer Obligations
6.1 User 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 floor finishing stripper 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.
6.2 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;
(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; or
(f) modify, improve, reverse engineer, duplicate, reproduce, or otherwise copy the Product, system, software, or Documentation (in whole or in part).
7. Warranty on the Product and Disclaimer of Warranty
7.1 Product Warranty. ICE Cobotics warrants to Customer that each Product will, for a period of 36 months from the day of delivery of the Product to the Delivery Location (“Warranty Period”), be free from material defects in workmanship and conform in all material respects to the applicable specifications set forth in the Documentation for such Product. The foregoing warranty shall not apply to the extent the warranty failure is caused by any breach of Section 6. For any breach of ICE Cobotics’ warranty set out in this Section, Customer’s sole and exclusive remedy and the entire liability of ICE Cobotics shall be the correction of the deficient Product. Upon discovery of a material defect in a Product, 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. Customer shall be responsible for the costs of such repair or replacement if such repair or replacement is necessitated in whole or in part by a breach of any of the obligations by Customer under this Agreement.
7.2 Disclaimer. ICE Cobotics is providing the Product “as is”. No warranty is made that the Product will meet Customer’s requirements, or that the operation of the Product will be uninterrupted, error-free or free from harmful components, or that any content, including data will be secure or not otherwise lost or damaged. ICE Cobotics makes no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. ICE Cobotics expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, and title.
8.1 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 or i-SYNERGY Services, (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 Product or i-SYNERGY 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.
8.2 Intellectual Property Infringement. If any Product or i-SYNERGY 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.
8.3 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 and 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.
8.4 In case of a breach of the indemnification obligation by Customer, ICE Cobotics may, without limiting other remedies hereunder or by law, choose to repossess (to the extent the purchase price for the Product has not been paid in full) any or all of the Products, spare parts and consumables.
9. Limitation of Liability
9.1 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.
9.2 Cap on Liability. Under no circumstances will either Party’s 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 the total amount paid by Customer to ICE Cobotics under the Order.
10.Term and Termination
10.1. Term. This Agreement shall commence on the Effective Date, and shall remain in effect until the end of the Warranty Period (the “Term”).
10.2. 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 6 (Customer Obligations), 7 (Warranty on the Product and Disclaimer of Warranty), 8 (Indemnification), 9 (Limitation of Liability), 11.1 (Notices), 11.2 (Governing Law), 11.3 (Severability and Waiver) and 11.4 (Confidentiality).
11.1. 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.
11.2. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to principles of conflicts of law.
11.3. Severability and Waiver. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.4. 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 in the public domain (other than through the Customer’s unauthorized disclosure,); (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 government authorities; or (c) is required to be disclosed by Customer to its shareholders, investors, legal counsel or financial advisers regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsel or financial advisors 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.
11.5. 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 Order and these terms and conditions, the terms of the Order shall control, followed by these terms and conditions.
1.1. 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.
1.2. 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.
1.3. Interruptions and Suspension. All or part of the 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 i-SYNERGY Services, (ii) during necessary software updates to the i-SYNERGY Services; (iii) if there is any breakdown or malfunctioning of equipment ICE Cobotics used for providing the i-SYNERGY 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 i-SYNERGY Services.
1.4. License to use i-SYNERGY Services. Subject to and in accordance with the terms of this Agreement, ICE Cobotics grants Customer a right to access and to use i-SYNERGY Services in connection with the Product in the country in which ICE Cobotics delivered the Product, solely for its internal business purposes, during the Warranty Period.
2. Data Usage
2.1. 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.
3. Proprietary Rights
3.1 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 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 i-SYNERGY Services or Documentation.
3.2 Intellectual Property Infringement. If any i-SYNERGY 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.
3.3 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.
4. Customer Obligations
4.1 Use Restrictions. Customer shall not, and shall not allow any third party to, directly or indirectly:
(a) modify, disassemble, tamper with, damage or misuse the systems, software or i-SYNERGY Services;
(b) fail to use or implement corrections, enhancements, modifications, or upgrades provided to Customer by ICE Cobotics;
(c) modify, improve, reverse engineer, duplicate, reproduce, or otherwise copy the system, software, i-SYNERGY Services or Documentation (in whole or in part); or
(d) license, sell, export, assign, transfer, lease, time-share, loan, or distribute i-SYNERGY Services to a third party.