Terms and Conditions
1. Termination for Cause. Either party may terminate this Agreement for cause if the other party breaches any material term of this Agreement and fails to correct the breach within sixty (60) days following written notice thereof from the non-breaching party or such longer cure period as is reasonable give the nature and circumstance of the breach. Immediate termination of this entire Agreement by a party shall be permitted if the other party makes any assignments for the benefit of creditors, or institutes voluntary proceedings in bankruptcy or insolvency or permits institution of such proceedings against it. Effect of Termination. Except as otherwise expressly agreed to in writing by the parties, upon the expiration or any termination of this Agreement: (i) Customer’s and Permitted Users’ right to access and use the Akua’s AKUA_Trak™ Services shall immediately terminate (ii) and each party shall return and make no further use of any equipment or Confidential Information of the other party that was provided. The rights and obligations of the parties pursuant to payment of services provided prior to expiration or termination shall survive the expiration or termination of this Agreement.
2. Taxes. All fees and other charges payable under this Agreement are net amounts and are payable in full, without deductions for any sales, use, excise, value-added, withholding or similar taxes or duties that may be applicable. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind associated with this Agreement, except for taxes based on Akua’s net income. In the event that Akua is required to collect any tax for which Customer is responsible, Akua may add such taxes, as appropriate, to the amount of all invoices at the prevailing rate and Customer will pay such tax directly to Akua.
3. Period of Performance. This Agreement shall remain in effect for one (1) year from the effective date or until the maximum number of container trips or the billing cap is reached. Estimated duration for each shipment utilizing the tracking service is 31 days.
4. Services Warranty. Akua warrants that the Akua AKUA_Trak Services, as provided by Akua and used by Customer in accordance with Akua’s instructions, will function in all material respects with Akua’s Documentation for such services. Akua does not warrant that the AKUA_Trak Services will be error free or will operate without errors or interruption. Akua’s sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty shall be for Akua, at its sole option and expense, either: (i) to promptly correct the AKUA_Trak Services so that they comply with the foregoing warranty; or (ii) to provide Customer with a reasonable procedure to circumvent the non-conformity. The Akua AKUA_Trak Services are not fault-tolerant and are not designed, manufactured or intended for use as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, railroad, or weapons systems, in which the failure of the Akua AKUA_Trak Services could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, Akua and its suppliers specifically
disclaim any express or implied warranty of fitness for High Risk Activities.
5. Express Disclaimer. THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES MADE BY Akua. Akua MAKES NO OTHER WARRANTIES, AND HEREBY DISLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
6. Confidential Information. For purposes of this Agreement “Confidential Information” shall mean information of a party hereto or of appropriate third parties (e.g. customers of a party) including, without limitation, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, customer lists, information regarding distribution channels, forecasts, and strategies, whether disclosed in writing or orally. For purposes of this Agreement, the AKUA_Trak Services, including the results of any performance tests of the AKUA_Trak Services, are Akua Confidential Information, and may be shared with US Government entities, Foreign Government entities, and Customs Organizations, and the Cargo Data and any forecasts provided by Customer to Akua pursuant to the Agreement are Customer Confidential Information. For purposes of this Agreement, the terms and conditions of this Agreement, including the pricing terms set forth herein, is the Confidential Information of Akua and Customer.
7. Restrictions on Disclosure. Each party agrees not to use the other party’s Confidential Information except as necessary for the performance of this Agreement. Each party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors.
8. Exclusions. The foregoing restrictions on disclosure shall survive for five (5) years following the termination of this Agreement, but shall not apply with respect to any Confidential Information which: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party is legally compelled to disclose. In addition, each party may disclose the terms and condition of this Agreement: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; (b) on a confidential basis to its professional legal or financial advisors; (c) as required under applicable securities regulations; and (d) to present or future providers of venture capital and/or potential private investors in or acquirers of such party who agree in writing, prior to such disclosure, to be bound by the confidentiality provisions contained in this Agreement.
9. Limitation of Liability. In no event will either party hereto be liable to the other for incidental, special or consequential damages arising out of, resulting from, or in any way connected with the performance or breach of the Agreement regardless of the form of action, even if such party has been advised of the possibility of such damages. Akua’s liability to the Company for any cause whatsoever, and regardless of the form of action (including negligence), arising out of, resulting from, or in any way connected with the performances or breach of the Agreement will in no event exceed the amount actually paid for the portion of the Services or deliverables involved. Neither of us will be liable for any delays or failures in performance due to circumstances beyond our reasonable control.
10. LIMITATIONS ON USE. Customer acknowledges and agrees that portions of the Embedded Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Akua and its licensors. Accordingly, Customer shall not disassemble, decompile or reverse engineer the Embedded Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. In addition, Customer shall not reverse engineer copy or modify the Endpoint Hardware, in whole or in part, nor permit or authorize any third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Customer shall not remove, amend, obscure or modify any product markings or any proprietary rights notice of Akua or its licensors or suppliers appearing on the Endpoint Hardware or as delivered to Customer.
11. Assignment. Neither party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the written consent of the other party, which consent shall not be unreasonably withheld or delayed. Any attempt to assign or transfer this Agreement without such consent shall be null and of no effect. Notwithstanding the foregoing, however, each party shall have the right to assign this Agreement upon written notice to the other party, without the requirement to obtain consent: (i) to the surviving corporation in the event of a merger or acquisition of that party, or the purchase of all or substantially all of the assets of that party; or (ii) a company controlling, controlled or under common control with that party. For these purposes “control” means the ownership of a majority of the equity or the ability to elect the majority of the governing body of another entity. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and permitted assigns.
12. Governing Law & Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Maryland, applicable to agreements made and to be fully performed therein. For the purpose of any suit, action or other proceeding arising out of or based on the Agreement, or the subject matter hereof (an “Action”), each party hereto
irrevocably submits to the jurisdiction of any state or federal court located in Baltimore County, Maryland, USA.
13. Indemnification. The Customer agrees to indemnify and hold harmless Akua, its affiliates and their respective control persons, managers, members, shareholders, directors, officers, employees and agents (“Indemnitees”), to the fullest legal extent against any and all claims, losses, damages, liabilities, costs and expenses as incurred, including all attorneys’ fees and costs of collection (collectively, “Losses”) in connection with, arising out of or related to Akua’s engagement under the Agreement and performance of the Services, including but not limited to any pending or threatened claim, litigation or other Action by or against the Company; provided, however, there will be excluded from such indemnification any such Losses that are found in a final court order to constitute willful misconduct or gross negligence on the part of Akua.
14. Waiver. The invalidity or unenforceability of any provision of the Agreement will not affect the invalidity or enforceability of any other provision of the Agreement, which will remain in full force and effect pursuant to the terms thereof. No failure by either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights, and no waiver of a breach in a particular situation will be held to be a waiver of any other or subsequent breach.
15. Entire Agreement. The Agreement incorporates the entire understanding of the parties regarding the subject matter hereof, and supersedes all previous agreements and understandings regarding the same, whether written or oral. The Agreement may not be amended and no provision hereof may be waived or modified except in writing and signed by each of the parties hereto.
16. Trademarks. Neither party grants the other party any rights to use its trademarks, service marks, or other proprietary symbols or designations; however, with the advance written consent of the other party, the requesting party may state in advertising, sales literature and correspondence, and other publicity, that the approving party has a relationship with the other party.
17. Representation and Warranties. The Company’s representative signing the Agreement hereby represents and warrants to CyberPoint, that (i) he or she has the unconditional authority to enter into the Agreement on behalf of the Company, and (ii) if the Company is a business entity, such authority has been granted in accordance with the requirements of the Company’s organizational documents. CyberPoint gives the same representation and warranty to the Company. The Agreement has been reviewed by the signatories thereto and their counsel; accordingly, there will be no construction of any provision against CyberPoint because the Agreement was drafted by CyberPoint, and the parties waive any statute or rule of law to such effect.
18. Severability. The invalidity or unenforceability of any provision of the Agreement will not affect the invalidity or enforceability of any other provision of the Agreement, which will remain in full force and effect pursuant to the terms thereof.
19. Counterparts; Electronic Delivery. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Further, the Agreement may be executed by transfer of an originally signed document by facsimile or e-mail in PDF format, each of which will be as fully binding as an original document.