GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES

Last Updated 6 September, 2023

These General Terms and Conditions for the Provisions of Services (“Terms”) are incorporated into and form an integral part of the Agreement by and between Cognosos, Inc., a Georgia Corporation (“Cognosos”), and customer set forth below (“Customer”) (each a “Party” and collectively the “Parties”), as referenced therein. These Terms apply to each sales order entered into by the Parties (each an “Order” or “Order Form”) upon the effective date of that Order (“Effective Date”). Capitalized terms used but not defined in these Terms shall have the meanings set forth in other portions of the Agreement. These terms may be updated from time to time, and such changes will become effective for Customer upon the earlier of the Customer’s renewal of an existing Order or execution of a new Order.  Cognosos recommends that Customer downloads these Terms for its records.

1. Definitions The following terms shall have the following meanings:

1.1 “Affiliate” means any of Customer’s corporate subsidiaries, corporate parents, affiliates and other related companies approved by Cognosos to receive Services under this Agreement.

1.2 “Confidential Information” shall have the meaning set forth in Section 12.

1.3 “Equipment” means any device provided by Cognosos to Customer for use in connection with the Services, including but not limited to the Gateways, Tags, and Zonal Activators, as further described in Schedule 1.

1.4 “Intellectual Property Rights” means patents, design patents, copyrights, trademarks, Confidential Information, know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.5 “Pilot Program” means specific services or equipment clearly designated as beta, pilot, developer preview, evaluation or by a similar description in Customer’s Order. If Customer executes an Order for a Pilot Program, Cognosos will provide the Pilot Program Services to Customer under the pricing terms applicable to the Pilot Program and until the end date specified in the applicable Order.

1.6 “Sites” means the locations at which Cognosos will provide Customer the Services and equipment as described in the related Order.

1.7 “Subscription Services” means the hosted and managed subscription service provided by Cognosos to Customer under the terms of the Agreement, which includes the Amazon Web Services-based (“AWS”) data and application Cognosos platform, and the network, hardware and software required for delivering the features as identified and described in Schedule 1.

1.8 “Tag” is the Cognosos Equipment attached to and associated with a specific piece of Customer inventory at any given time.

1.9 “Update” means an update, enhancement, modification, bug-fix, patch or error correction, that Cognosos may provide to Customer to include new features, improve functionality, and address defects or customer feedback; provided, however, that such updates, enhancements and modifications shall not remove any critical functionality from, or degrade the performance of, the Cognosos Services.

2. Scope.          

2.1 Subject to the terms of this Agreement, Cognosos will use commercially reasonable efforts to provide Customer the subscription services and related Cognosos equipment specified in each Order (each a “Service” and, collectively referred to herein as “Services”). Each Order will specify the Sites at or from which the Services will be provided to Customer. Customer acknowledges that Cognosos’ performance and delivery of the Services are contingent upon Customer providing timely delivery of, and safe and hazard-free access to its personnel, facilities, network and/or other information and resources necessary for the provision of the Service and upon Customer’s timely compliance with any reasonable directions provided by Cognosos to Customer in relation to Customer’s use of the Services.

2.2 Services Coordination. Customer will assign an individual as the primary point of contact to coordinate with Cognosos.

2.3 Customer’s Affiliates may also purchase Services from Cognosos hereunder for their own account on these same general terms and conditions as are applicable to Customer provided that such Affiliate executes an Order for such Services. The liability of each Customer Affiliate and Customer under this Agreement however shall be several and not joint and each Affiliate shall only be liable for those obligations expressly set forth in the Order to which it is a party.  Cognosos shall invoice each such Customer Affiliate separately for any Services provided to said Affiliate.

3. Cognosos License Grant

3.1 License Grant and Acceptable Use Policy. Subject to Customer’s compliance with the terms and conditions of this Agreement, Cognosos grants Customer a nonexclusive, revocable, and non-transferable right and license to use the Services at the Site(s) set forth in an Order during the Term (defined in Section 11). Cognosos reserve all rights, title and interest in and to the Services not expressly granted to Customer under this Agreement.

3.2 Limitations. Customer may only access and use the Services in accordance with the terms of this Agreement and the applicable Order(s). Customer shall not: (a) circumvent, copy, modify, decompile, reverse engineer or disassemble Cognosos’ proprietary technology used in connection with the Services (“Cognosos Technology”) or (b) rent, lease, sublease, license, timeshare or rebrand the Cognosos Technology or the Services.

3.3 Compliance with Laws. Customer shall comply with all applicable laws, rules and regulations relating to Customer’s receipt and use of the Services.

4. Cognosos Equipment

4.1 Subject to the terms and conditions of this Agreement, Cognosos shall provide to Customer the applicable Equipment required for enabling the Services. The Equipment is provided to Customer, for use solely during the applicable Service Term, and remains the property of Cognosos always.

4.2 Customer will maintain and protect the Equipment in good working condition except for any reasonable wear and tear. Customer will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy the Equipment (including any software or firmware that is part of, incorporated into or running on the Cognosos Equipment). Customer will keep the Equipment free of all security interests, liens, and other encumbrances. Customer shall be liable for all charges and replacement costs attributable to the theft or loss of any Equipment.

5. Installation and Site Preparation. Cognosos will provide installation services as part of the Services as indicated on the Order.  Customer shall maintain its Sites in a safe condition and comply with all applicable laws, statutes and regulations governing workplace health and safety.

6. Support Services. Subject to the terms hereof, Cognosos will provide Customer with reasonable technical support services in accordance with Company’s standard practice as described in Schedules 1 and 2.

7. Updates. Cognosos shall promptly provide Customer with all required Updates at no additional cost to Customer.

8. Published Prices and Pricing. All price quotations as provided in a written proposal shall automatically expire on the expiration date listed on the proposal, but in no event later than sixty (60) days after issuance, and are subject to withdrawal by notice within that period. Cognosos, at its sole option, may extend the effective date of written quotations. Prices shown on published price lists and other literature issued by Cognosos do not represent unconditional offers to sell and are subject to change without notice.

9. Payment.

9.1 Fees. Customer will pay Company the then applicable fees described in the Order for the Services in accordance with the terms therein.  Payment for all fees and expenses is due within thirty (30) days of receipt of invoice. All payments will be made in the United States in U.S. dollars in the amounts as indicated on the invoice.

9.2 Late Payment. All payment obligations are non-cancellable, non-refundable non-contingent and without rights of setoff. Fees that are not received when due will bear interest from the due date at the lesser of one and one-half percent (1½%) per month or the maximum rate allowed by applicable law. If Customer does not timely pay any fees Cognosos may, in its sole discretion, terminate or suspend any Services pursuant to Sections 11.2 and 11.3, respectively. Cognosos will continue to charge Customer and Customer will be responsible for charges for Services during any period of suspension. Customer is liable for all costs of collection of delinquent fees, including, without limitation, reasonable attorneys’ fees.

9.3 Invoice Disputes. In the event Customer disputes an invoice, Customer shall pay the fees in such invoice in full by the due date and file a separate dispute within forty-five (45) days from the date of receipt of the applicable Cognosos invoice. Customer will provide a summary of the dispute together with supporting documentation. Following Cognosos’ receipt of a dispute summary and the supporting documentation, Cognosos will investigate and make a final determination on the dispute in Cognosos’ reasonable discretion.  For any sums found to be owed to Customer, Cognosos will issue Customer a credit on the next succeeding invoice or for prepaid amounts issue a refund as agreed to by the Parties.  Customer waives any billing dispute not made in writing with supporting documentation within forty-five (45) days from the date of Customer’s receipt of the applicable Cognosos invoice.

9.4 Service Commencement Date for Billing. Unless otherwise specified in an Order, billing for a Service specified in an Order commences on the earlier of 1) thirty days’ after receipt of Cognosos Equipment, 2) ninety days after the effective date of the relevant Order, or 3) the date upon which Equipment is installed and put into service (“Service Commencement Date” or “Subscription Start Date”).

9.5 Taxes and Duties. Excluding taxes based on Cognosos’ net income, Customer is liable for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Customer’s receipt or use of the Services, regardless of whether Cognosos invoices Customer for such amounts.

10. Intellectual Property Rights.

10.1 Reservation of Rights. As between the Parties, Cognosos retains title to the Services under all Orders and the Cognosos Technology, including all modifications, alterations, derivative works and enhancements and all intellectual property rights contained therein. Customer may not copy any ideas, features, functions or graphics of the Services or the Cognosos Technology or modify or make derivative works based upon the Services. Customer has no license, right or intellectual property right in any Cognosos trademark, trade name or service mark.

10.2 Customer Data. As between the Parties, Customer owns all data, imagery, information and other content (“Customer Data”) transmitted by or on behalf of Customer in connection with the Services under all Orders, including but not limited to Customer’s data stored on the Cognosos platform including the ID and location of the Tag, a history of movement of the Tags, and the battery level. Customer has sole responsibility for Customer Data and its intellectual property ownership and right to use. Customer grants to Cognosos the non-exclusive right and license to receive, retrieve, process, and transmit any Customer Data necessary to perform the Services under all Orders. Notwithstanding anything to the contrary, Cognosos shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Cognosos will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Cognosos offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

11. Term and Termination.

11.1 Term. This Agreement shall be effective as of the Agreement Effective Date and shall remain in effect until 120 days following the termination or expiration of all Orders or Statements of Work. The term for each Service commences on the Service Commencement Date of the applicable Service specified in an Order and continues for the length of time stated in such Order (“Initial Term”). After the Initial Term, this Agreement shall automatically renew for successive one-year periods (each renewal a “Renewal Term”).  Notwithstanding the foregoing, either party may cancel the renewal of an Initial Term or a Renewal Term by notifying the other party at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term.

11.2 Termination. (a) Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party;  (b) Either party may terminate this Agreement immediately, without notice: (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts; (ii) upon the other party’s making an assignment for the benefit of creditors; or (iii) upon the other party’s dissolution.

11.3 Suspension of Services. In addition to any other rights under this Agreement, Cognosos may, in its sole discretion, suspend Customer’s access to a Site(s) and/or the provision of any Services under all Orders immediately if: (a) Customer fails to timely pay any Fees when due; (b) Customer has breached a material provision of this Agreement or an Order and failed to cure such default within thirty (30) business days after Customer’s receipt of written notice of such default from Cognosos; or (c) if Customer’s receipt or use of the Services, violates any applicable law, rule or regulation.

11.4 Effect of Termination or Nonrenewal. Upon the effective date of termination or nonrenewal of a Service or an Order, Customer shall immediately pay to Cognosos all unpaid Fees through the effective date of termination or nonrenewal; Customer agrees to pay all amounts owing pursuant to this Section 11.4 no later than the effective date of termination. Upon any termination, Cognosos will make all Customer Data available to Customer for electronic retrieval for a period of sixty (60) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

11.5 Return of Equipment the end of a Service Term or upon termination of a Service or an Order for any reason, Cognosos shall provide Customer with a list of all current Equipment; Customer will remove and return all such equipment and property at the Sites within thirty (30) days of the last day of the Service Term or said termination in the same condition as provided, normal wear and tear accepted.

12. Confidentiality

12.1 Definition. “Confidential Information” means the business, technical and financial information belonging to the disclosing party and its licensors, including without limitation, all Software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or that is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed.

12.2 Exclusions. Confidential Information does not include information that (a is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.

12.3 Obligations. Each Party agrees that while this Agreement is in effect and for a period of two (2) years following the termination or expiration of this Agreement, each party shall maintain in confidence all Confidential Information of the disclosing party that is delivered to the receiving party and will not use such Confidential Information except as expressly permitted herein.  Each Party will take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Confidential Information of the disclosing Party and shall use at least the same degree of care the receiving Party employs with respect to its own Confidential Information, but in no event less than a reasonable standard of care. Neither Party will directly or indirectly, without the prior written consent of the disclosing Party, disclose the disclosing Party’s Confidential Information or terms of an Order or this Agreement to anyone other than: (a) the receiving Party’s officers, directors, affiliates, subsidiaries, shareholders, financing sources, attorneys, and employees on a need to know basis and who agree to be bound by confidentiality terms at least as restrictive as those contained in this Section 12.3; or (b) as required by governmental law, rule, or regulation including judicial proceedings.  If the Parties have entered into any confidentiality agreement with respect to the provision of Services by Cognosos prior to the Agreement Effective Date, that agreement will automatically be terminated without further action by the Parties after the Agreement Effective Date.

12.4 Injunctive Relief. Each party understands and agrees that the other party will suffer irreparable harm in the event that the receiving party of Confidential Information breaches any of its obligations under this Section 12 and that monetary damages will be inadequate to compensate the non-breaching party for such breach.  In the event of a breach or threatened breach of any of the provisions of this Section 12, the non-breaching party, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach by the other party.

13. Reserved.

14. Non-solicitation. While this Agreement is in effect and for a period of one (1) year thereafter, both parties agree to that they will not solicit or hire for employment any employee, contractor or consultant of the other party who they have met or had contact with in connection with this Agreement, the business relationship between Cognosos and Customer, or the Services provided to Customer by Cognosos, if any.

15. Service Level Agreement.

15.1 Cognosos will use commercially reasonable efforts to perform each Service in an Order in accordance with the applicable service level objectives (“Service Level Terms”) set forth in the Service Level Agreement (“SLA”) attached hereto as Schedule 2 and incorporated into this Agreement by reference.

15.2 Pilot Program Services. Pilot Program Services are provided for evaluation purposes and notwithstanding any provision to the contrary, no SLA for any Services is applicable during any Pilot Program period with respect to Customer’s use of such Services.

16. Representation, Warranty, and Disclaimers.

16.1 Representation: Each party represents that it has validly entered into this Agreement and has the legal power to do so.

16.2 Service Warranty. Cognosos warrants to Customer that (i) any Services performed by Cognosos hereunder will be performed in a workman-like manner, in accordance with general industry standards and (ii) the Services will not contain, to the best of Cognosos knowledge, any Trojan horses, worms, or undocumented disabling devices.

(a) Exclusions. Cognosos’ warranties in this Section 16.2 shall not extend to problems that result from: (i) Customer’s failure to implement all Updates issued by Cognosos during the warranty period; (ii) any alterations or additions to the hardware or software not performed by or at the direction of Cognosos; (iii) the relocation, movement or modification of any fixed component of the Cognosos Equipment by any party other than Cognosos; (iv) failures in operation of the software that are not reproducible by Cognosos; or (v) failures which are caused by Customer’s software or other software, Cognosos Equipment or products not licensed or provided hereunder. Any work performed by Cognosos as a result of these exclusions will be pursuant to a Statement of Work executed by both parties.

(b) Remedies. For any Services not in conformance with this Section 16.2, Cognosos will, at its discretion and cost, either repair, replace or reperform the Service, as applicable. This is Customer’s exclusive remedy, and Cognosos’ sole liability arising in connection with the limited warranties herein.

(c) Disclaimers. EXCEPT AS OTHERWISE STATED HEREIN, COGNOSOS DOES NOT MAKE ANY OTHER WARRANTIES, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, REGARDING THE USE AND RESULTS OF THE COGNOSOS TECHNOLOGY, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.

16.3 Cognosos Equipment Warranty and Disclaimer.

(a) Equipment. Cognosos warrants the Equipment against defects in materials and workmanship under normal use for the Term of the Agreement. In the event the Equipment fails to operate substantially in accordance with its technical specifications and such failure causes a material adverse effect on Customer’s ability to use the Services, then Customer’s sole and exclusive remedy and Cognosos’ sole and exclusive liability is for Cognosos to provide replacement Equipment.

(b) Disclaimers. THIS IS COGNOSOS’S COMPLETE WARRANTY FOR THE EQUIPMENT, AND STATES CUSTOMER’S EXCLUSIVE REMEDIES. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESS WARRANTIES. IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE GIVEN ONLY IF SPECIFICALLY REQUIRED BY APPLICABLE LAW. OTHERWISE, THEY ARE SPECIFICALLY EXCLUDED.  COGNOSOS RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME, AT ITS SOLE DISCRETION, AND WITH NOTICE TO CUSTOMER.

NO WARRANTY IS MADE THAT ANY OF THE EQUIPMENT PROVIDED BY COGNOSOS WORKS IN COMBINATION WITH ANY EQUIPMENT OR APPLICATIONS SOFTWARE PRODUCTS PROVIDED BY THIRD PARTIES NOT IDENTIFIED IN ANY STATEMENT OF WORK FOR WHICH THE EQUIPMENT IS INTENDED TO WORK, THAT THE OPERATION OF THE EQUIPMENT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE COGNOSOS EQUIPMENT WILL BE CORRECTED.

17. Limitation of Liability. Neither Party will be liable to the other for any indirect, incidental, special, consequential, exemplary or punitive damages, including, without limitation, loss of use, interruption of business, loss of data, lost profits, lost revenues or the cost of purchasing replacement services, arising out of the performance or failure to perform the Services or a breach of this Agreement or an Order, regardless of whether such liability is based on breach of contract, tort (including all forms of negligence), strict liability, breach of warranty, failure of essential purpose or otherwise, and even if advised of the likelihood of such damages.

IN NO EVENT SHALL COGNOSOS’S TOTAL AGGREGATE LIABILITY, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING ALL FORMS OF NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE, FAILURE TO MEET ONE OR MORE SERVICE LEVEL OBJECTIVES, OR OTHERWISE, FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION FOR DAMAGES, LOSSES, OR COSTS ARISING OUT OF ANY PROVISION OF THIS AGREEMENT OR AN ORDER OR THE SERVICES PROVIDED BY COGNOSOS UNDER ANY ORDER, EXCEED THE FEES PAID BY CUSTOMER TO COGNOSOS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.

18. Indemnification.

18.1 Cognosos shall defend, indemnify and hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Cognosos is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Cognosos will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Cognosos, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Cognosos, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Cognosos to be infringing, Cognosos may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.  The foregoing states Cognosos’ entire liability for infringement claims.

18.2 Customer hereby agrees to indemnify and hold harmless Cognosos against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises for personal injury or damage to tangible property resulting from the gross negligence or willful misconduct of Customer or otherwise from Customer’s use of Services.

18.3 Cognosos will indemnify and hold harmless Customer from any and all liability, damages, costs and expenses (including reasonable attorney’s fees and expense) for personal injury or damage to tangible property resulting from the gross negligence or willful misconduct of Cognosos.

19. Insurance. Each Party will maintain, at its own expense during the term of this Agreement, issuance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omission, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

20. Miscellaneous Provisions.

20.1 Governing Law; Venue. The Services, any Orders and this Agreement will be governed by and construed under the laws of the State of Georgia without regard for its conflicts of laws of principles. Jurisdiction and venue for purposes of any litigation in connection with the Services, an Order or this Agreement will be in the relevant federal or state court located in Atlanta, Georgia.

20.2 Use of Marks. Upon receiving written permission, each Party grants the other a limited, non-exclusive, non-transferable and revocable right during the Term to use the other Party’s corporate logo, name, trademark, URL, and Product names (the “Marks”) on the other’s web site. Each Mark may only be used as provided by the applicable Party, without modification. Each Party may revoke this limited right at any time upon forty-five (45) days prior notice to the other and the other Party shall remove such Mark from its website (and cease any other use) by the end of such forty-five (45) day time period.  Other than the rights granted in this section or by subsequent agreement, each Party agrees that it has no other rights to the Marks of the other Party.

20.3 Promotion. Each Party may use and publish the other Party’s name in its customer lists, lists of referrals for other customers (or potential customers), and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.

20.4 Force Majeure. Except for the Customer’s obligation to make payments (unless Cognosos is unable to provide the applicable Services due to the reasons set forth in this Section 20.2), neither Party will be liable to the other for any failure or delay in its performance hereunder, due to acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet or other similar acts beyond a Party’s reasonable control, provided that the delayed Party: (a) gives the other Party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance if reasonably practicable.

20.5 Relationship of the Parties. Cognosos and Customer each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct or control the day-to-day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.

20.6 Assignment. Customer may not assign, transfer, sublease, or sublicense any portion of its rights to the Service(s), an Order or this Agreement or otherwise grant an encumbrance of any of its rights thereunder (except as expressly provided in this Agreement or an Order), without Cognosos’ prior written consent which will not be unreasonably withheld. Notwithstanding the foregoing, Cognosos may assign the provisions of installations services or repair series with notification to Customer.

20.7 No Waiver. The failure of a Party to enforce any provision of an Order or this Agreement will not constitute a waiver of that provision or deprive a Party of the right to subsequently insist upon strict adherence to that provision, or any other provision contained therein.

20.8 Severability. The provisions of this Agreement and the Order(s) are severable. If any provision is determined invalid, illegal or unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.

20.9 Counterparts. An Order or this Agreement may be signed in counterparts with the same force and effect as if required signatures were contained in a single, original instrument.

20.10 Notices. All notices, consents and communications pursuant to this Agreement or an Order will be in writing and will be deemed to have been duly given: (a) when sent by receipt-verified email (b) on the date delivered in person or by courier, or (c) on the date received if sent certified or registered mail, return receipt requested, and addressed to the recipient Party at the address set forth on the Cover Page, or to such other address or individual as the Parties may specify from time to time by written notice to the other Party. A refusal to accept delivery by a Party will be deemed delivery.

20.11 No Third-Party Beneficiaries. No person or entity, other than the Parties, will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, an Order or this Agreement.

20.12 Interpretation. Neither Party will be considered the drafter of an Order or this Agreement so as to give rise to any presumption or convention regarding construction of such Order or this Agreement.

20.13 Export. The software, Equipment and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Software and related technical data.

20.14 Conflicts. In the event of a conflict or inconsistency between this Agreement and an Order, this Agreement shall control in all instances unless the Order specifically states that the term in the Order will prevail.

20.15 Entire Agreement.  This Agreement together with any related Order constitutes the entire agreement between the Parties with respect to the subject matter hereof and of the Order and constitutes and supersedes all prior written or oral negotiations, understandings, agreements and/or agreements between the Parties concerning the subject matter hereof or of such Order.

 

SCHEDULE 1

Service Descriptions

This Schedule 1 is subject to and a part of the Agreement between Cognosos and Customer and is a general description of the Services provided. In the event of any conflict between the terms set forth in this Schedule 1 and those set forth in the Order Form or Master Services Agreement, the Order Form or Master Services Agreement shall prevail, as relevant.

1. Equipment. Cognosos shall provide asset tracking and monitoring functionality (“Tracking”) to enable Customer to gather location data from Tags physically and logically associated with a Tracked Asset and perform other Location Services using the Subscription Platform and Mobile Application. Cognosos shall make available the Equipment to provide Tracking as described below (further information about the Equipment is available in published product data sheets, as updated from time to time (“Data Sheets”).

a. Infrastructure Hardware

i. Gateways: Gateways are communications devices used to pass data between the Tags and the Subscription Platform. They are low frequency, long range devices for use both indoors and outdoors to provide data connectivity across the area where the Services are enabled.

ii. Beacons: Beacons are battery powered infrastructure devices used to provide location reference data for the Tags. Beacon data is received by the Tags, passed via the Gateways to the Subscription Platform and there analyzed by the LocationAI location engine to determine Tag location.

iii. Exit Monitors: Exit Monitors are devices placed in corridors and at doors and other exits to warn of Tags that are leaving a building or area unexpectedly.

iv. Zonal Activators: Zonal Activators are battery powered devices that emit a signal which causes a Tag to report its location. They are used for zone- or portal-based positioning where the precision provided by Beacon infrastructure is not required.

v. Gate Alarms: Gate alarms are devices placed at outdoor gates to warn of Tags that are leaving a site unexpectedly.

b. Tags. Tags are small, battery powered devices that attach to Tracked Assets and pass data to the Subscription Platform via Gateways in order to determine the Tracked Asset’s location. Tags use a variety of tracking technologies depending on the target use case. Tag battery life is highly dependent on usage and therefore varies from one application to another. Guidance on battery life for typical use is provided in the relevant Data Sheets. No warrant is made regarding battery life for usage outside of the typical parameters noted in the Data Sheets.

i. Healthcare Asset Tags. Healthcare Asset Tags are designed to attach semi-permanently to mobile assets and devices used in healthcare settings. They receive data from Beacons and pass that data to Gateways via a data link. They also trigger Exit Monitors using Bluetooth technology.

ii. Vehicle Tags. Vehicle Tags are designed to attach temporarily to cars and light trucks in logistics yards. They include GPS technology and pass that satellite data to Gateways via a data link. They also incorporate a passive RFID tag in order to trigger Gate Alarms. Some models additionally include a Bluetooth module to enable advanced functionality. Vehicle Tags are triggered by Zonal Activators for zone- or portal-based positioning.

iii. Trailer Tags. Trailer Tags are designed to attach temporarily or permanently to logistics trailers in warehouse, distribution-center and other similar yards. They are identical to Vehicle Tags except for having a physical form factor more appropriate for trailers.

2. Subscription Platform. The Subscription Platform is a highly scalable cloud-based location intelligence platform used to collect, store, and report on the location and status of Tracked Assets and perform Location services.  It is currently hosted on the Amazon Web Services-based cloud. The Subscription Platform includes the following components:

a. Portal. The portal is a web-based application that provides user access to the Location Services. The Portal is also used by administrators to configure and manage the Subscription Platform and to monitor Tags.

b. REST API. The REST API provides connectivity between the Portal and the Core Location Intelligence Platform. The API is also used to connect to third party software services.

c. LocationAI Location Engine. The LocationAI Location Engine takes raw data from tags and uses advanced Artificial Intelligence techniques to deliver highly accurate and reliable Tag location reporting.

d. Core Location Intelligence Platform. The Core Location Intelligence Platform performs all of the tasks necessary to deliver the Location Services.

e. RadioCloud Communication Services. The RadioCloud Communication Services manage communication between the Core Location Intelligence Platform and the Gateways, including advanced cloud-based SDR functions.

 

 

 

 

SCHEDULE 2

Customer Support & Service Level Agreement

  

This Schedule 2 is subject to and a part of the Agreement between Cognosos and Customer and is a general description of the Services provided. In the event of any conflict between the terms set forth in this Schedule 2 and those set forth in the Order Form or Master Services Agreement, the Order Form or Master Services Agreement shall prevail, as relevant.

1. The scope of this SLA is limited to the Subscription Platform provided by Cognosos to the Customer.

2. For service outages, including any partial outage, that delay delivery of the data to Customer, Customer shall immediately notify Cognosos by submitting a support ticket at Cognosos.com. Upon receipt of notification from Customer, Cognosos shall acknowledge the issue and respond to Customer based on the severity level as described in the table below. After responding to Customer, Cognosos shall use reasonable efforts to expeditiously debug the problem and communicate to Customer a plan and timeframe for resolving the issue.

3. The targeted response time is based on the severity level of the issue, as listed below:

Severity Level	Description	Initial Response Time	Target Resolution Time (advisory only)
3 (least severe)	Customer has a minor problem or question that does not affect the system functions. There is no (or very limited) impact to product usage or Customer’s operations. Examples: ·       General requests for advice on product usage ·       Installation assistance Service enhancement request	2 business days or less
2	A portion of the service is unavailable, although workarounds may exist.  Issues are limited to a very limited subset of end users and/or devices. Examples: ·       Loss of connectivity to a single Gateway ·       Limited quantity of Tags not operating properly.	During normal business hours: 4 hours; otherwise, 24 hours	Configuration and application issues resolved within 24 hours; hardware replaced within five (5) business days, subject to availability
1	Subscription Platform is unavailable on a systematic level and affect a substantial set of users. Examples: ·       Loss of connectivity to all Gateways ·       Loss of location data transmission ·       Loss of communications between Tags and Gateways	2 hours or less	Deliver the delayed data immediately upon service resumption, if possible, but no later than five (5) business days

4. In case of service disruption due to backhaul internet disconnection, or power outage, Customer shall make best efforts to restore the internet connection or power outage.

5. Cognosos shall use commercially reasonable efforts, being no less than accepted standards to ensure the Subscription Platform Monthly Uptime Percentage (defined below). The Subscription Platform shall be available (provide adequate functionality to track and locate assets) on the Subscription Start Date (as set forth in the applicable Order Form) for a Monthly Uptime Percentage of 99%.

6. Regarding returns of Equipment:

• • To request a return materials authorization (“RMA”) under this Equipment Warranty Returns section, please contact Cognosos support via customer portal. If the RMA request is approved, Cognosos will provide Customer with an RMA number and a return shipping label for the defective Equipment. Cognosos will ship all replacement Equipment once the RMA request has been approved and processed.
  • Customer must return the defective Equipment to Cognosos for receipt within twenty-one (21) days of provision of the return shipping label. If Cognosos does not receive the defective Hardware units within this twenty-one (21) day period, Cognosos reserves the right to charge the Customer, and Customer agrees to pay, the fees and costs associated with the device replacement.
  • If the Customer requests an RMA and no material defect is found with the indicated Equipment (e.g. the Equipment has been damaged by Customer or deployed improperly by Customer), Cognosos reserves the right to charge the Customer, and Customer agrees to pay, the fees and costs associated with shipping the Hardware unit and a reasonable service fee. In such case, Cognosos will contact Customer before taking further action.

7. The following definitions apply to this Cognosos Service Level Agreement:

• • “Monthly Uptime Percentage” means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime periods in the calendar month, divided by the total number of minutes in the calendar month.
  • “Downtime” means Cognosos Platform is not available (does not provide adequate functionality to track and locate assets–). Emergency Downtime and Scheduled Downtime are excluded from Downtime for the purpose of measuring the Cognosos Uptime SLA, and will not be counted towards the Downtime periods.
  • “Emergency Downtime” means those times where Cognosos becomes aware of a vulnerability which, based on a risk assessment of the vulnerability, Cognosos deems to require immediate remediation and, as a result, the Cognosos Platform is made temporarily unavailable in order for Cognosos to address the vulnerability. Emergency Downtime is not considered Downtime for purposes of this SLA and will not be counted towards any Downtime periods.
  • “Scheduled Downtime” means those times between 12:00 a.m. (ET) and 6:00 a.m. (ET) every night, or where Cognosos notifies the Customer of periods of Downtime five (5) business days prior to the commencement of such Downtime. Scheduled Downtime is not considered Downtime for purposes of this Cognosos SLA and will not be counted towards any Downtime periods.
  • Service Level Agreement Exclusions. The Service Level Agreement does not apply to any performance issues: (i) caused by factors outside of Cognosos’ reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from any actions by the Customer outside of normal operation and use of the Asset Tracking service, Customer’s equipment and/or third party eq